GULAB RAI Vs. GIRWAR SINGH

JUDGEMENT

(1.) This appeal arises from a suit brought by the owners of the village lands of Jia Nagla to recover from the owners of the villages lands of Timaria Ghat a considerable area of land transferred from one side of the Mahewa river to the other as the result of a change in the course of the stream. The plaintiff Girwar Singh himself admits that the custom of dhardhura prevails between the village of Jia Nagla and Timaria Ghat, and there is abundant documentary evidence dating back to the first settlement to prove this fact. The meaning of the custom of dhardhura is that the deep stream is to be regarded as the boundary between two villages. The custom is sanctioned in Bengal Alluvion and Diluvion Regulation 11 of 1825, which lays down in the second section that whenever any clear and definite usage...may have been immemorially established, for determining the rights of the proprietors of two or more contiguous estates divided by a river (such as that the main channel of the river dividing the estates shall be the constant boundary between them, whatever changes may take place in the course of the river, by encroachment on one side and accession on the other) the usage so established shall govern the decision of all claims and disputes relative to alluvial land between the parties.

(2.) In the present case immemorial usage is established by the old settlements, and it is not denied that on several occasions in the past land cut off by the river has been incorporated in the opposite village. The learned Subordinate Judge has decreed the plaintiffs suit and restored to them land which is now on the opposite side of the river, not because the custom of dhardhura does not apply to these villages but because, in his opinion, the custom cannot be intended to cover the present case. Undoubtedly the decision of the learned Judge was affected by his personal opinion that the whole custom is inequitable being an aggravated form of gambling in which not only who wins or loses; but also the amount of the stake is left to be determined by the caprice of a river due to natural causes.

(3.) We need only point out that there is another side to the picture. By allowing their constantly shifting boundary to be determined by natural or possibly in their opinion supernatural causes, the parties have for many years, perhaps centuries, lived together in peace, without bloodshed and without litigation. If this is gambling, it is at least fair gambling in which neither party can take an advantage of the other.