RAM SUBHAG RAI Vs. SHEO SAHAI RAI

JUDGEMENT

(1.) This is a first appeal against a decree of the Sub-Judge of Ghazipur dismissing their suit for possession of 199.34 acres of culturable land and 68.30 acres of unculturable land, total 267.74 acres of land, situated on a map attached to the plaint and designated by the letters ABCD, claimed as part of mauza Malsa Khas, and also for 56.38 acres of culturable land and 15 acres, also stated to be cultur- able land but probably intended to be unculturable land, total 71.38 acres of land, situated on the map and designated by the letters EFGH and claimed to be part of mauza Malsa Khurd. The plaintiffs are the zamindars of the two villages, Malsa Khas and Malsa Khurd, which lie on the east bank of the Ganges in the district of Ghazipur. The defendants are the owners of mauzas Jaitpura and Baipur, villages which lie on the west bank of the Ganges in the same district of Ghazipur and are opposite the two villages of the plaintiff s. The plaint sets forth that all the four villages lay before 1840 on the banks of the Ganges. In para. 2 of the plaint as revised it is- stated that in 1840 a settlement of Ghazipur was made by Mr. Duncan and that certain areas were recorded for the villages in question. In para. 4 it is set out that in 1882, at a revision of the settlement of Ghazipur and a little before that, a portion of the area of villages Malsas was washed away by the action of the Ganges and was covered with water and sand, and although a portion of the area of mauzas Malsas re-appeared along with a portion of the area of mauzas Jaitpura and Baipur and was measured as such, yet in those days the said area was not fit to be possessed, occupied and cultivated. It is not alleged that there was any further accretion after the year 1882 of the villages of the de- fendants. Para. 5 of the plaint set out that the custom of deep-stream boundary, alluvial and diluvial action of the river and the frontage does not prevail-as between the villages Malsas, Jaitpura and Baipur and that the area of Malsa Khas and Khurd, which had. been cut away by the fluvial action of the river and re- appeared towards vil-lages Jaitpura and Baipur, was not cut away or reclaimed under Regulation 11 of 1825 or gradually. Para. 7 sets out that about 700 bighas had been taken from the villages of the plain tiffs and added to the villages. of the defendants. The cause of action al-leged to have arisen in November 1920, when the quinquennial settlement in respect of the plots in dispute was. for the last time made with the defendants, and in November 1925, when the plots in dispute re- appeared from,, the water and became culturable and. when, on demand being made by the plaintiffs, the defendants refused to deliver possession of it. It may be-noted that it is not alleged in the plaint that it was: a case in which a river by a sudden change of its course may break through and intersect an. estate without any gradual encroachment, or may by the violence of its stream separate a consider-able piece of land from one estate and join it to. another estate without destroying the identity and preventing the recognition of the land so. removed, as dealt with in Regulation 11 of 1825-S. 4, part 2. In the written statement of the contesting defendants, who are-defendants first party, it was alleged, that the claim of the plaintiffs was-barred by time, that the plots in dispute have continued to be reclaimed, from before 1872 and Government has been realising Government revenue-from the defendants; with regard to-the custom of the deep-stream boundary, that there is a deep-stream boundary custom between the villages in; suit and further, in para. 9 of the-written statement that: after the Ganges changed its course several times, the plots in dispute, which had, for a long, time, been covered with water, by and by, with- out any distinction, continued to be recovered ; from the Ganges towards Jaitpura and Baipur and" to be included as part of the land of the said villages, and these defendants and their predecessors continued to come into possession of the ? said land as they continued to be reclaimed by-right of former ownership and the custom of deep stream boundary.

(2.) It was further contested that the-areas given from settlement by the plain-tiffs were incorrect and that the plots, in dispute were by no means lands-of villages of Malsas but that they-were actually part of mauza Jaitpura,, the property of these defendants, and that the defendants were exclusive owners of the property in dispute, known as mahal Gangbarar-dawami, which had been settled with the defendants for more than 50 years. Further, reference was made to the "dauldahsani" papers and the settlement of Mr. Duncan which was the permanent settlement, and it was pleaded that the area in possession of the plaintiff was now 150 bighas in excess of their area at the permanent settlement.

(3.) A number of issues were struck by the lower Court, and the lower Court has dismissed the suit of the plaintiffs on the finding that the custom of "dhurdhara" or deep-stream rule has been established and that the accretion was gradual and imperceptible. The lower Court has found for the plaintiffs on the question of limitation, holding that because there was occasional sub mergence of the area, the defendants did not have continuous adverse pos-session, and the lower Court has also found for the plaintiffs on issue 6 to the effect that the area of the settlement of 1790 was incorrectly given then and that the correct area was that ascertained in 1840. (After considering the evidence his Lordship held that the case for the plaintiffs that their property had become less by the action of the river from the time of the permanent settlement was a case which was not established by the evidence on the record and proceeded.) The next issue to which we direct our attention is issue 9: "Have the lands in suit accreted towards the defendants village gradually and imperceptibly?" The learned Counsel for the appellants laid before us a number of rulings dealing with the meaning of these words "gradually" and "imperceptibly." We have noted that it is not alleged in the plaint that the change was sudden, nor have any of the witnesses produced for the plaintiffs alleged that the change was sudden. On the contrary, we find among the witnesses for the plaintiffs a statement on p. 51, line 27, in the evidence of Deoki Rai, that: the Ganges occupied its present position gradually within a period of 50 years.