KESHAVA PRASAD SINGH BAHADUR Vs. MTBENI KUNWAR

JUDGEMENT

(1.) This is a plaintiff's appeal against a decree of the learned Subordinate Judge of Ghazipur dismissing the greater portion of the suit of the plaintiff, and decreeing merely a certain area A B C D E F G H I in the map printed after the plaint. The plaint says that the plaintiff, the Maharaja of Dumraon, claimed to be the owner of a certain temple in Ghazipur city on the banks of the Ganges and a garden attached to that temple, and the Court below has granted him a declaration of ownership of this temple and garden. He also claimed in the plaint a considerable area which has been added by the river Ganges by alluvion to this garden and to this temple. It is this portion of his claim which has been disallowed by the lower Court. Now it is admitted that this plot stands in a certain mahal Mianpura in Mauza Amghat, and that the defendants are the co-sharers in that mauza. The plaintiff does not claim to have owned more than the particular plot of land occupied by the temple and the grove, and he does not claim to be a cosharer in Mauza Amghat. In the plaint in para. 5 it was pleaded: In 1328 Fasli again some land gradually came out of the water in front of the plaintiffs pushtas in continuation of the previously alluviated lands after the rainy season and the plaintiff was entitled to the same by right of frontage under local custom and Regn. 11 of 1825.

(2.) The claim of the plaintiff therefore was under local custom and Regn. 11 of 1825. The defendants are admittedly in possession of the area added by alluvion, and the plaintiff asked for a declaration and recovery of possession of that portion. Now the question of alluvion was the subject of issue 5, which has been decided, and also of issue 7, which has not been decided. The parties produced evidence of custom, and there are on the record the wajibularzes of the 1840 settlement and of the 1881 settlement, and there is also certain oral evidence in regard to custom. The 1840 settlement contained para. 15, "of alluvion," which provides as follows: Taluka Amghat proper lies on the bank of the Ganges river. If in any year more than 10 bighas of the land as at present surveyed are cut off by the river, its jama will be reduced as per decision of the officer. If more than 10 bighas of land are thrown out by the river, we shall pay an enhanced jama of the same in accordance with the decision of the officer.

(3.) It will be seen that this paragraph clearly sets out that if more than 10 bighas of land were thrown out by the river, the zamindars agreed to pay an enhanced revenue. There was no provision in this custom that persons who owned particular plots bad any right to land added by the river to their plot, as the plaintiff claims in the present ease. The persons with whom the settlements were made are mentioned on p. 47. In the later wajibularz of 1881-82 there was a provision in para. 10 in regard to alluvion which stated: The river Ganges runs on the Shamilat of (land common to) all the mahals of this Taluka. on the border of Amghat opposite to Mauza. Goda Mafqudpur, Pargana Zamania, and Rampura alias Golaphat. This river cuts away and throws out land every year. Accordingly the custom of Dhardhura (the rule by which the course of the deep stream of a river is regarded as the boundary in cases of alluvion and diluvion) is observed between the proprietors of this village and the village lying opposite. The custom as observed by the proprietors of this village among themselves is that all the proprietors of the village sustain (loss) in the year in which the area of this village is cut away and that they proportionately divide and are benefited by the alluvial land when it comes out.