- (1.) JUDGEMENT These are eighteen connected appeals arising out of eighteen connected and consolidated suits. The trial court disposed of the suits by a common judgment and the appeals against the judgments and decrees of the trial court were likewise disposed of by a common judgment by the court of first appeal. I also propose to deal with these appeals by a common judgment.
(2.) THE suits were filed by Zamindars and tenants of village Indarpur against the residents of village Cheruiyan for perpetual injunction restraining the defendants from interfering with the plaintiffs possession over certain plots of agricultural land and in the alternative for possession, village Indarpur lies to the east while village Cheruiyan, lies to the west of river Sarju, in the district of Ballia. It was alleged by the plaintiffs that the land in. dispute which was formerly on the eastern side or river sarju and which used to remain submerged under water of the river during rainy season was transferred to the western side as a result of a sudden change in the course of the river in 1941. The land, however, remained identifiable and continued to be in possession of the plaintiffs. in November 1952 the defendants started causing interference in the possession of the plaintiffs and that, according to the plaintiffs, led to the institution of the suits. The defence in all the suits was the same. The defendants pleaded that under an immemorial custom river Sarju was the constant boundary between villages Indarpur and Cheruiyan and whatever land was thrown upon the western side of the river on account of its fluvial action accreted to village n Cherulyan and the plaintiffs lost their rights to it. It was denied by the defendants that there was any sudden change in the course of the river in 1941 as alleged by the plaintiffs, and it was asserted that as a result of the slow movement of the river which constantly shifts its course the land in dispute had become part of village Cheruiyan by gradual accretion starting from before 1881-82. The defendants claimed that they had been taking possession of the land as and when it accreted to their village Cheruiyan and had continued in possession ever since. it was denied that the land in dispute was subject to submersion under water every year during the rainy season as alleged by the plaintiff, and the suits were said to be barred toy limitation. It was also denied that the land claimed by the plaintiffs was identifiable on the spot. Some other pleas which were more or less of a technical nature were also taken but they are no longer of any importance. The trial court dismissed ail the suits and its decrees were affirmed by the learned Civil Judge on appeal. The findings recorded by the learned Civil Judge on the issues which are relevant for the purposes of these appeals may be summarised as follows. The land in dispute was formerly a part of village indarpur and lay on the eastern side of river Sarju but it was transferred to the western side of the river as a result of a change in the course of the river. The transfer of the land in dispute to the western side was, however, by gradual accretion during the course of a period of about 60 years preceding the suits and it did not take place on account of a sudden emergence of the land out of the water of the river in 1941 as alleged by the plaintiffs. The custom set up by the defendants was not established and river Sarju was not the constant boundary between villages Indarpur and Cheruiyan. The plaintiffs were not in possession of the disputed land on the date of the suit nor were they in possession thereof within the period of limitation allowed for instituting a suit for possession and consequently they lost their rights in the land. The defendants were, on the other hand, in possession and had acquired rights in the land on account of the expiry of the period of limitation prescribed for suits for possession against them. The plaintiffs had not succeeded in proving that the land in dispute used to remain under water every year during the rainy season and as such the possession of the defendants was not interrupted and limitation was not saved. The defendants had further acquired adhivasi rights in some of the plots in dispute.
(3.) AT the hearing of these appeals, the findings of the learned Civil Judge that the land in dispute originally formed part of village Indarpur and that there was no custom under which river Sarju was to be the constant boundary between villages Indarpur and Cheruiyan, were not challenged, and the learned counsel for the parties addressed their arguments accepting these findings as correct. The conclusion that flows from these findings inevitably is that the land appearing on the side of village Cheruiyan as a result of the action of the river would still remain the property of the plaintiffs if it is identifiable as having belonged to the plaintiff when it was on Indarpur side of the village, unless the plaintiffs have lost their rights by limitation or the defendants have acquired rights under some statutory provisions. This conclusion is not dependant in any manner upon whether the change in the course of the river was abrupt or gradual. The law on this matter may now be taken as settled in view of the two Division Bench decisions of this Court in Sri Krishna Dutt Dube v. Ahmadi Bibi, 1935 All LJ. 235 : (AIR 1935 All 187) and Mahadeo v. Bajeshwar Prasad, 193S All LJ. 708 : (AIR 1939 All (626); in the latter case Niamatullah, J. after referring to the Privy Council decision in Maharaja of Dumraon v. Secretary of State, ILR pat 481 : (AIR 1927 PC 89) and to the Division Bench decision of this Court in 193C All LJ 235 : (AIR 1935 All 187) observed as follows : "The view accepted on these cases is that, if the land in dispute is identifiable with reference to its physical features, land marks, or by measurement, it should be deemed to continue to belongs to the former owner, whether its transfer from one side of the river to the other was by a sudden change in the course of the river or was the result of the river gradually receding on one side and throwing up land on the other unless a custom to the contrary is established." ;