RAJENDRA NARAIN DHANJ Vs. GANGANANDA SINGH

JUDGEMENT

(1.) THE defendant-appellant is the owner of mauza Rahimpur and the plaintiffs-respondents are the owners of mauza Mansi in Pargana Farkia. The river Gandak or Bari Gandak flows between the two villages, mauza Mansi being situated on its northern side, and mauza Rahimpur on its southern side. The river Ganges flows at some distance to the south of the Gandak. In 1899 the Ganges began its encroachment northwards, and ultimately joined with the Gandak, and by the combined action of the two rivers certain of the lands which had formed part of the mauza Mansi were "diluviated," i.e., the surface soil (the cultivable soil) was wholly washed away. In course of time, however, the waters receded, and about589 bighas of the land, including the lands in question in this action, gradually reappeared towards the south in 1906, and by degrees the land became hard and firm soil, capable of being cultivated in the usual manner. The appellant took possession of the said lands on the ground that by immemorial custom the middle line of the bed of the Gandak formed the boundary line between Mansi and Rahimpur, and that owing to the change in the course of the Gandak the land which had reappeared was now on the southern side of the bed of the said river and belonged to the appellant as owner of the mauza of Rahimpur. Magisterial proceedings ensued, and the possession taken by the appellant was protected by an order made on December 14, 1908, under the Criminal Procedure Code, Section 145. An appeal against the said order was rejected on May 21, 1909. The present action was then brought by the plaintiffs against the appellant and others who were in possession of the said lands, asking for a declaration that they belonged to mauza Mansi and were the property of the plaintiffs.

(2.) THE contention raised by the appellant-defendant is very clearly stated by the Subordinate Judge before whom the suit came for trial :

(3.) THE Subordinate Judge, however, decided upon the evidence, which will be dealt with later, against the appellant-defendant upon the question of the custom alleged, holding "that the flowing Gandak is not the constant boundary of Mansi and Rahimpur and that no such custom has been proved to exist." In the result he entered judgment for the plaintiffs for recovery of the said lands.