RADHEY SHYAM Vs. RAM DHAN LAL

JUDGEMENT

(1.) This is an appeal by the first four defendants against a decree for possession of the lands claimed and for certain mesne profits passed by the civil Judge of Bareilly on 30 September 1936. The dispute which gave rise to this litigation was brought into existence by the vagaries of a river called the Bam Ganga. The suit was instituted by one Babu Ram who was the zamindar and lambardar of a mauza called Sikha. Some time after instituting the suit Babu Ram died and his two sons, Ram Dhan Lal and Banwari Lal, were substituted for him as his legal representatives, and they are the principal respondents to this appeal.

(2.) There were numerous defendants. On the record as it stood at the date of the decree of the Court below defendants 1 to 25 were persons who owned various shares in a neighbouring village called Jhawa Nagla, and defendants 26 to 41 were cosharers of another neighbouring village called Gurgan-wan. The plaintiff's case was that the defendants had interfered with his possession of land of which he was in lawful possession. The opening sentences of para. 7 of the plaint seem to indicate that the real grievance of the plaintiff was against the co-sharers of village Jhawa Nagla, but in the second half of that paragraph it is alleged that "the defendants" were "ready to interfere in the possession and ownership of the plaintiff and create trouble . . . ." The Court below decreed the suit for possession and mesne profits against all the defendants. This appeal as already stated, has been brought only by defendants 1 to 4 who are four of the cosharers of mauza Jhawa Nagla. The relief which they seek to obtain by the appeal is that the suit of the plaintiff be dismissed "as against the appellants." The other defendants have not appealed. The appellants have impleaded as respondents to this appeal the two plaintiffs and the cosharers of village Jhawa Nagla other than themselves. The cosharers of village Gurganwan--defendants 26 to 41--have not been impleaded.

(3.) It was alleged in the plaint that the river Ram Ganga used to flow to the south and east of the plaintiff's village, Sikha and the villages of Jhawa Nagla and Gurganwan then lay on the opposite bank of the river, in other words, to its south and east. It was then averred that "the custom of dhar dhura (deep stream boundary) prevailed between Sikha on one side and those two villages on the other," and that "this custom stands recorded in the wajib-ul-arz prepared at the time of the last settlement of mauza Sikha." The relevant paragraph of the wajibu- ul-arz was reproduced. It was next stated that the river Ram Ganga continued to change its dhar (course) up to 1340 fasli and the zamindars of all the three villages aforesaid gained and lost land according to the fluvial action of the river.