Decided on March 19,1951

RAM DHAN LAL Appellant
RADHESHAM Respondents

Cited Judgements :-

Vali VS. Vali Mohd [LAWS(RAJ)-1979-3-5] [REFERRED TO]


- (1.)This appeal is directed against an appellate judgment of a D. B. of the Allahabad H. C. dated 8-9-1942 by which the learned Judges reversed a decree made in favour of the pltfs, by the Civil Judge of Bareilly in Original Suit No. 18 of 1934 and dismissed the suit as against defts, 1 to 4.
(2.)The suit, out of which the appeal arises, was commenced by one Babu Ram as pltf. and it was for a declaration that the lands in suit appertained to a village named Sikha situated in Tehsil Aonla within the Dist. of Bareilly, of which the pltf. was the Zemindar and Lambardar, and that the defts. had no right or title to the same. There was a claim for recovery of possession in case the plts. was found to have been dispossessed from the whole or a portion of the disputed lands with an ancillary prayer for mesne profits. The original pltf. died sometime after the plaint was filed and the suit was continued by his two sons, who were brought on record as his heirs and successors. There were as many as 41 persons impleaded as parties defts. to the suit and they were alleged to have proprietary interest in two contiguous villages named Jhawa Nagla and Gurganwan which lie to the south and east of village Sikha.
(3.)The allegations as they appear in the plaint, in substance, the that the river Ram Ganga flowed to the south and east at mouza Sikha belonging to the pltf. and according to the custom of "Dhar Dhura" or deep stream boundary prevalent in the locality, the main channel of the river constitutes the indisputable, though fluctuating, boundary line between village Sikha on one side and villages Jhawa Nagla and Gurgawan on the other. Up to Fasli year 1340, the course of the river, it is said, changed several times and the Zemindars of the three villages were deriving gains and suffering losses of land on account of these alluvial and diluvial changes. In the Fasli year 1340, the "Dhar" or main stream of the river was at the place marked C.D. E, and F in the map attached to the plaint and the pltf. as Zemindar of village Sikha, possessed a tract of land shown on the map to which the dispute now relates and which was situated to the north-west of the stream and stretched on the northern and western side up to the limits of village Sisanua Hazipur and Sheopuri. In the year 1341, the river suddenly changed its course and leaving its old bed altogether began to flow entirely outside the limits of the three villages mentioned aforesaid. The "dabri" or the old bed of the river as it stood in the year 1340 has been shown in the plaint map and constitutes, according to the pltfs. the line of demarcation between Sikha on one side and the two villages Jhawa Nagla and Gurganwan on the other. It is alleged by the pltf. that the custom of "Dhar Dhura" could not create any title in the defts. who are the proprietors of villages Jhawa Nagla and Gurganwan, to the disputed plot, is to the north and west of the main current of the river as it flowed in the year 1940, as the custom applies only when the change in the deep stream is gradual and not sudden and it cannot have any possible appln, when the river leaves the three villages altogether and ceases to flow within them as has happened in the present case. The different proprietors, therefore, should be allowed, according to the pltf. to hold and possess as appertaining to their Zemindary the lands which were in their respective possession in the year 1340; and in law and equity the disputed property should remain in possession of the pltf. as owner of mouza Sikha. As the defts. were threatening to interfere with the pltfs'. possession in collusion with the Patwari of the villages, the present suit was instituted.

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