BADRUDDIN Vs. TEJ RAM

JUDGEMENT

(1.) This appeal and appeal No. 1584 of 1925 as also the appeals Nos. 1878 and 1879 of 1924 were connected for the purposes of arguments, although the two sets of appeals are, in one sense, independent. We had heard the last-mentioned two appeals, viz., Nos. 1878 and 1879 of 1924 and delivered a short judgment, which, however, had neither been signed nor sealed. On hearing appeals Nos. 1583 and 1584, we considered it desirable that the respondents counsel in the appeals Nos. 1878 and 1879 of 1924 should be reheard and we reheard him accordingly. We are now in a position to decide all the four appeals on the same broad principle.

(2.) It appears that the river Bhakra flows between several villages, the village of Jatpura being on one side of the river. The defendants in each of the several suits out of which these appeals have arisen are the zamindars of the village of Jatpura. By suit No. 103 of 1923 the zamindars of village Hurhari, by suit No. 118 of 1923 the zamindars of mauza Mirnagar, by suit No. 112 of 1923 the zamindars of mauza Gularia and by suit No. 308 of 1923 the zamindars of mauza Sangarh, each laid claim, separately, to certain tracts of land on the ground that these lands had been cut off from the village of Jatpura by the river Bhakra, and had been attached to their respective villages. It was alleged on behalf of the plaintiffs that there was a custom by the name of "dhardhura" by which the deep stream of the river has always been the boundary between the village of Jatpura on the one side and the respective villages of the plaintiffs on the other. The defence was, in some cases, that there was no such custom of "dhardhura" as has been alleged and, in others, while it was admitted that there was such a custom of dhardhura, it was contended that custom did not cover the present case. A distinction was sought to be drawn on the ground that, on this particular occasion, the river had not merely shifted its course on a wide bed, but had entirely made for itself a new channel, with the result that a large tract of land without even being submerged, became divided by the stream. It was contended that the custom alleged did not cover a case like this.

(3.) Our attention has been drawn to a recent case decided by a Bench of five Judges of this Court, viz., Kunjbehari Lal V/s. Jaimal Singh . This case draws attention pointedly to one thing and it is this The term dhardhura" is not a term of art and a mere statement that there is a custom of dhardhura does not necessarily mean that the custom is wide enough to apply to a case where an entirely new channel is cut by a river. In the Full Bench case, the plaintiff laid claim to what was undoubtedly his property before the river Deoha carved out for itself a new channel. The plaintiff said that the land on the other bank of the new channel continued to be his property in spite of the coming into existence of a new channel. The defence was that a custom of "dhardhura" prevailed and by it the deep stream of the river formed boundary between the villages of the parties. The plaintiff admitted that there did exist a custom of dhardhura but he said that such a custom did not apply to the circumstances of the particular case, viz., where a new course is dug out by a river for itself. The defendants failed to prove that the custom alleged by them and admitted by the plaintiff was wide enough to cover the case before the Court. The result was that the Full Bench agreed with the Court of first instance in decreeing the plaintiff's suit.