SRI KRISHNA DUTT DUBE Vs. MTAHMADI BIBI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession and mesne profits in respect of 78.78 acres of land, alleged to form part of the plaintiff's mahal in village Birampur Kham in the district of Jaunpur. Defendant 1 is a "mutawalli" of a certain "wakf" to which, villages Gaura and Bhelpur belong. The other defendants, 55 in number, arc tenants in cultivating possession of the land in, dispute. The suit was dismissed by the lower Court, and the plaintiff appeals.

(2.) The plaintiff's village Bitrampur Kham lies on the northern bank of river Gomti. The defendants villages Gaura and Bhelpur, lie on the south, with a westerly direction. The plaintiff's case, as set out in his plaint, is as follows: The land in dispute lay on the north of river Gomti before 1894, and was an intergral part of village Birampur Kham. The river was flooded in the year 1894, and since that year gradually shifted to the north throwing up land on the south adjoining the defendants villages Gaura and Bhelpur. This was in course of a number of years the river slowly receding to the north, throwing up land on the south, with the result that the land in dispute which was situate before 1894 on the north of the river, was thrown up on the south adjacent to villages Gaura and Bhelpur. It is clearly stated in the plaint that the river changed its course slowly and gradually. The plaint does not show how long this process of gradual accession on one side and loss on the other continued; but from the other evidence in the case which will be hereafter mentioned it appears that it must have continued till, at least, 1906. The plaint goes on to assert that the land in dispute was not culturable, being covered with sand and certain plants of spontaneous growth for a considerable length of time, and the tenants, parts of whose holdings were submerged and were thrown up on the south, surrendered those parts and discontinued paying rent to the plaintiff. According to the plaintiff, the defendants took possession of the lands in dispute in 1921, when a suit relating to the entire estate of the plaintiff was pending, and the plaintiff could not, owing to his pre-occupations, institute a suit for possession earlier than he did. The suit was instituted on 2 July, 1928. On these allegations the plaintiff claimed possession of the entire land which is indicated in a map prepared by the Commissioner, which also shows the, present bed of the river and its course in 1894.

(3.) Separate written statements were filed by defendant 1 and other defendants; but their defences are more or less identical. It was pleaded that the river Gomti had from ancient times been the boundary between the village Birampur on one side and villages Gaura and Bhelpur on the other, and that according to an immemoral custom the southern half of the bed of the river appertained to the defendants villages and the northern half to the plaintiff s. According to the aforesaid custom, all land lying to the south of the deep stream belongs to villages Gaura and Bhelpur and that on the north of it to the plaintiff's village Birampur. Whenever any land is added by the river changing its course - whether the change is gradual or sudden - the deep stream continues to be the boundary between the plaintiff's village and the defendants villages. The defendants also pleaded that the land in dispute had gradually accreted to their villages between the years 1885 and 1910 and that the plaintiff had never been in possession of any part of that land after 1910 since when the defendants had been cultivating the same. On these allegations the defendants put forward two distinct pleas : (1) They claimed the land in dispute to be theirs, as it had been acquired by them by gradual accretion within the meaning of Regulation 11 of 1825, and (2) apart from the aforesaid regulation, the defendants allege to have become entitled to the land by virtue of the custom above referred to, under which all land to the south of the Gomti and adjacent to villages Gauira and Bhelpur belonged to the proprietor of these villages. The defendants also pleaded limitation and adverse possession. A plea of misjoinder was also put forward, but it was overruled by the lower Court and has not been reiterated in this Court.