# RAM DHAN LAL AND OTHERS v. RADHE SHAM AND OTHERS

- **Citation:** [1951] 1 S.C.R. 370
- **Court:** Supreme Court of India
- **Decided:** 1951
- **Case number:** Appeal (Civil Appeal No. 41 of 1949
- **Bench:** Handrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-dhan-lal-and-others-v-radhe-sham-and-others-89
- **Pages:** 11

## Headnote

Bengal Alluvion and Diluvion Regulation (Xl of 1825), ss. 2, 4
-Custom of dhar dhura-Incidents-River changing course s11ddenly-River flowing entirely outside the villages which it dividedWhether custom applies-On"s of proof-Reasonableness of custom
-Application of Regulation XI-Revival of dhar dhura rights.
The meaning of the custom of dhar dhura is that the deep
stream or channel of a river is to be regarded, irrespective of its
changes, as the constant boundary between two or more villages,
and such a custom is expressly recognised in s. 2 of Regulation
XI of 1825.
Whether such custom applies even to cases of sudden changes
in the course of a stream or only to gradual alluvial action is
a matter which has to be determined upon the evidence adduced
in each case. The onus ·of proving that the custom applies to
sudden changes also is on the person who sets it up, but such
custom is not unreasonable and can be established like any other
S.C.R.
SUPREME COURT REPORTS
371
custom by cogent evidence.
(Their Lordships· upheld the finding
lfi5I
of the High Court that under the custom prevailing in the villages
in question it was applicable also to cases of the stream suddenly Ram Dhan Lal ·
altering its course.)
and Other a
As the custom of dhar dhura implies that the deep stream
v.
of the river irrespective of the changes in its course, is to be
Radhe Sham
regarded as a fixed boundary line between two or more villages,
and Othera.
it is necessary for the application of this custom that the main
stream of the river must flow within the limits of these villages.
When the river changes its course so widely that it oversteps
the boundaries of the villages concerned and ceases to divide
these villages, the rights of the riparian properties can be determined only ·in accordance with the provisions of Regulation
XI of 1825.
Obiter. Though a riparian owner cannot claim a land
under the custom of dhar dhura so long as the river flows outside
the limits of the villages concerned, his rights under the
custom would revive as soon as the river again flows within the
villages.
CIVIL APPELLATE
JURISDICTION:
Appeal (Civil
Appeal No. 41 of 1949) against the judgment and
decree of the Allahabad High Court (Allsop and
VermaJJ.) dated 8th September, 1942, in First Appeal
No. 473 of 1936, arising out of the decree of the Civil
Judge, Bareilly, dated 30th September, 1936, in
Original Suit No. 18 of 1934.
Walter Dutt (P. S. Sajeer, with him) for the appellants.
P.L. Banerjee (Baleshwar Prasad, with him) for the
respondents.
1951. March 19. The judgment of the Court was
delivered by
MuKHERJEA J .-This appeal is directed against an Mukherjoa J.
appellate judgment of a Division Bench of the Allahabad High Court dated September 8, 1942, by which the
learned Judges reversed a decree made in favour of
the plaintiff by the qvil Judge of Bareilly in Original
Suit No. 18 of 1934 and dismissed the suit as against
defendants 1 to 4.
The suit out of which the appeal arises, was commenced by one Babu Ram as plaintiff and it was for
372
SUPREME COURT REPORTS
[1951)
1951
a declaration that the lands in suit appertained to a
-.
1 village named Sikha situated in Tehsil Aonla within
Ra":.an:;:;.:;• the district of Bare illy, of which the plain tiff was the
a
v.
Zemindar and Lambardar, and that the defendants had
llad./w Sham no right or title to the same. There was a claim for
and others.
recovery of possession in case the plaintiff was found
M ukherjta J. to have been dispossessed from the whole or a portion
of the disputed lands with an ancillary prayer for
mesne profits. The original plaintiff died sometime
after the plaint was filed and the suit was continued
by his two sons, who were brought on the record as his
heirs and successors. There were as many as 41 persons impleaded as parties defendants to the suit and
they were alleged to have proprietory interest in two
contiguous villages named Jhawa Nagla and Gurganwan which lie to the south and east of village Sikha.
Th

## Text

370
SUPREME COURT REPORTS
[1951)
1951
due consideration at the hands of the executive
-R.,,., authorities.
Janardan
~...,,
A
h
.
,
1 d ,
h
't'
f
, 1
· and others
s t e pomts 1nvo ve m t e petI ions or spec1a
v.
leave to appeal to this Court against the order of the
The Stat• of High Court refusing to grant relief under article 226 of
Hyderabad and the Constitution are the same as those involved in the
0~·
petitions under article 32, all the six petitions are
Fau Ali J.
dismissed. It may however be observed that in this
case we have not considered it necessary to decide
whether an application under article 32 is maintainable
after a similar application under article 226 is dismissed by the·High Court, and we reserve our opinion
_19~1
l.tareh 19.
.on that .question.
Petitions dismissed.·
Agent for the petitioners: I. N. Shroff.
Agent for the respondents: P. A. Mehta.
RAM DHAN LAL AND OTHERS.
v.
RADHE SHAM AND OTHERS
[SAIYID FAZL ALI, MUKHERJEA and
(HANDRASEKHARA AIYAR JJ.)
Bengal Alluvion and Diluvion Regulation (Xl of 1825), ss. 2, 4
-Custom of dhar dhura-Incidents-River changing course s11ddenly-River flowing entirely outside the villages which it dividedWhether custom applies-On"s of proof-Reasonableness of custom
-Application of Regulation XI-Revival of dhar dhura rights.
The meaning of the custom of dhar dhura is that the deep
stream or channel of a river is to be regarded, irrespective of its
changes, as the constant boundary between two or more villages,
and such a custom is expressly recognised in s. 2 of Regulation
XI of 1825.
Whether such custom applies even to cases of sudden changes
in the course of a stream or only to gradual alluvial action is
a matter which has to be determined upon the evidence adduced
in each case. The onus ·of proving that the custom applies to
sudden changes also is on the person who sets it up, but such
custom is not unreasonable and can be established like any other
S.C.R.
SUPREME COURT REPORTS
371
custom by cogent evidence.
(Their Lordships· upheld the finding
lfi5I
of the High Court that under the custom prevailing in the villages
in question it was applicable also to cases of the stream suddenly Ram Dhan Lal ·
altering its course.)
and Other a
As the custom of dhar dhura implies that the deep stream
v.
of the river irrespective of the changes in its course, is to be
Radhe Sham
regarded as a fixed boundary line between two or more villages,
and Othera.
it is necessary for the application of this custom that the main
stream of the river must flow within the limits of these villages.
When the river changes its course so widely that it oversteps
the boundaries of the villages concerned and ceases to divide
these villages, the rights of the riparian properties can be determined only ·in accordance with the provisions of Regulation
XI of 1825.
Obiter. Though a riparian owner cannot claim a land
under the custom of dhar dhura so long as the river flows outside
the limits of the villages concerned, his rights under the
custom would revive as soon as the river again flows within the
villages.
CIVIL APPELLATE
JURISDICTION:
Appeal (Civil
Appeal No. 41 of 1949) against the judgment and
decree of the Allahabad High Court (Allsop and
VermaJJ.) dated 8th September, 1942, in First Appeal
No. 473 of 1936, arising out of the decree of the Civil
Judge, Bareilly, dated 30th September, 1936, in
Original Suit No. 18 of 1934.
Walter Dutt (P. S. Sajeer, with him) for the appellants.
P.L. Banerjee (Baleshwar Prasad, with him) for the
respondents.
1951. March 19. The judgment of the Court was
delivered by
MuKHERJEA J .-This appeal is directed against an Mukherjoa J.
appellate judgment of a Division Bench of the Allahabad High Court dated September 8, 1942, by which the
learned Judges reversed a decree made in favour of
the plaintiff by the qvil Judge of Bareilly in Original
Suit No. 18 of 1934 and dismissed the suit as against
defendants 1 to 4.
The suit out of which the appeal arises, was commenced by one Babu Ram as plaintiff and it was for
372
SUPREME COURT REPORTS
[1951)
1951
a declaration that the lands in suit appertained to a
-.
1 village named Sikha situated in Tehsil Aonla within
Ra":.an:;:;.:;• the district of Bare illy, of which the plain tiff was the
a
v.
Zemindar and Lambardar, and that the defendants had
llad./w Sham no right or title to the same. There was a claim for
and others.
recovery of possession in case the plaintiff was found
M ukherjta J. to have been dispossessed from the whole or a portion
of the disputed lands with an ancillary prayer for
mesne profits. The original plaintiff died sometime
after the plaint was filed and the suit was continued
by his two sons, who were brought on the record as his
heirs and successors. There were as many as 41 persons impleaded as parties defendants to the suit and
they were alleged to have proprietory interest in two
contiguous villages named Jhawa Nagla and Gurganwan which lie to the south and east of village Sikha.
The allegations as they appear in the plaint, in substance, are that the river Ram Ganga flowed to. the
south and east of mouza Sikha belonging to the plaintiff 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
Gurganwan 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 plaintiff. 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 villages
Sisauna, 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 above, The "dabri"
or the old bed of the river as it stood in the year 1340
S.C.R.
SUPREME COURT REPORTS
373
has been shown in the plaint map and constit_utes,
1951
according to the plaintiffs, the line of demarcation bet- R
-
L
ween Sikha on one side and the tw? villages Jhawa
::a_~~~:. al
Nagla and Gurganwan on the other. It is alleged by the
v.
plaintiff that the custom of Dhar Dhura could not
Rooke Sham
create any title in the defendants, who are the proand Othera.
prietors of villages Jhawa Nagla and Gurganwan, to
the disputed plot, which is to the north and west of Mukherjea J.
the main current of the river as it fl.owed in the year
1340, as the custom applies only when the change in
the deep stream is gradual and not sudden and it
cannot have any possible application 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 plaintiff, 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 plaintiff as owner of mouza Sikha.
As the defendants were threatening to interfere with the
plaintiff's possession in collusion with the Patwari of
the villages, the present suit was instituted.
Out of the 41 defendants, written statements were
filed by 9 only. Two .of them again admitted the
·plaintiffs' claim and pleaded that they were made
parties to the suit unnecessarily. The suit was really
contested by defendants 1 to 4 and 30 and they resisted the plaintiffs' claim on a number of grounds, most
of which are immaterial for our present purpose. The
substantial case made by the contesting defendants
was that the custom of Dhar Dhura applied to every
sort of change in the deep stream ·of the river irrespective of the fu.ct whether the change was gradual or
sudden, or whether the river flowed within or outside
the villages; and as the river had receded to the north,
the defendants were according to this custom entitled
to the lands which had been joined to the lands of
their villages up to the main channel of the river. It
was asserted that the "dabri" or the old bed of the
374
SUPREME COURT REPORTS
[1951]
1951
river could not be treated as the demarcating line betRam -;,::n Lal ween the three villages.
and Others
Thus. the existence of the custom of Dhar Dhura
"·
was affirmed by both the parties. The difference betliadh• Sham ween them was as regards the extent of the custom.
and Others.
•
ff
According to the plainti s, the custom was restricted
Mukherjea J. in its operation to gradual accretion and did not extend
to cases where old formations were suddenly severed
by fluvial action without destroying their identity or
preventing recognition of the land so removed. The
second point raised by the plaintiffs was that the
custom could not apply when the main stream had
shifted entirely beyond the villages between which it
was to form the boundary line.
On the first point the decision of the trial court was
adverse to the plaintiffs, but on the other point the
court decided in their favour.
The result was that the
plaintiffs' claim was allowed and a decree was passed
in accordance. with. the prayers made in the plaint.
Against this decision the defendants 1 to 4 took an
appeal to the High Court of Allahabad. The appeal
was heard by a Division Bench consisting of Allsop and
Verma JJ. who allowed the appeal to this extent
that the plaintiffs' claim was dismissed as against
defendants Nos. 1 to 4 who had filed the appeal, though
as regards the rest of the defendants the decision of
the trial iudge was kept intact. It is against this
judgment that the plaintiffs got leave to appeal to the
Privy Council and the appeal has now come up for
hearing by this court. It has been brought to our
notice that of the two plaintiffs who filed the appeal,
one has since then compromised the suit with the contesting defendants and the appeal is being prosecuted
before us on behalf of plaintiff No. 1 alone.
The learned Counsel appearing in support of the
appeal has pressed for our consideration both the two
points which were put forward in support of the plaintiff's case in the courts below. It has been contended
in the first place that the evidence adduced in this
case does not establish the custom of Dhar Dhura in
S.C.R.
SUPREME COURT REPORTS
375
such extreme form as would create a change of owner.
1951
ship even when there is transfer of lands by a sudden R
Dha Lal
change in the course of the deep stream. It is urged :':a Oth"....
that even if such a custom is proved to exist, it should
v.
be held to be unreasonable and hence unenforceable
Radhe Sham
in law. The other contention raised is that in any
and Others.
view there is no scope for application of the.custom m
h
.
h
d h
Mukherjea J.
the present case w ere the nver as oversteppe t e
limits of the three villages and has ceased to be the
dividing line between them.
As regards the first point, it seems to us that on the
facts admitted and proved, it is not possible for us to
take a view different from that taken by both the Courts
below. The meaning of the custom Dhar Dhura is that
the deep stream or channel of a river is to be regard6d. irrespective of its changes, as the constant
boundary between two or more villages; Such custom
is expressly recognised in section 2 of Regulation XI
of 1825 which lays down 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 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 relating to alluvial lands
between the parties." That such custom prevails in the
locality is proved by the "Wazibularz'' prepared at the
last settlement of Monza Sikha and the custom is there
recorded as follows:-
"The river Ram Ganga flows on the boundary line
of thiS village. The custom of Dhar Dhura prevails
between this village andGurganwan,Jhawa Naglaand
Rakhara, Pa:rgana Aenla. If any piece of land is included in the area of this village on account of the alluvial
action of the river, we the Zemindars shall be the
owners thereof and if any piece of land of this village
is washed away, it shall be owned and possessed by
the Zemindars of the village wherein it appears in the
376
SUPREME COURT REPORTS
[1951]
1951
same way in which we were in possession thereof." The
8
;;;:: Lal record thus speaks of change by alluvial action of the
:'::a 0,;:.,.,
river. It does not say whether such alluvial action
v.
should be gradual or sudden; by itself, therefore, it
Badh• Sham does not indicate with precision the ambit of the right
and Others.
that is connoted by the custom. This is a matter which
Mukhet"jea J. has got tq be determined upon the evidence adduced
by the parties and the onus of proof is undoubtedly on
the person who sets up a custom at variance with the
general law. We are in agreement with the view expressed by Oldfield J. in Sibt Ali v. Muniruddin (1)
that the court should "scrutinise with care evidence
in regard to a custom which would have the effect of
passing from one owner to another land long held and
enjoyed and of which the character is in no way altered by river action"; but if cogent and satisfactory
evidence is "forthcoming, there is no reason why the
existence of such custom could not be established like
any other fact. Apart from the oral evidence that
has been adduced in this case there are two Rubkaris
of the Col!ectorate and one judgment by a Civil Court
to all of which the predecessors of the parties
to the present litigation were parties and they show
clearly that demarcation of the lands of the three
villages has always been made with reference to the
position of the deep stream of the river at dfferent
times and it was regarded as immaterial whether the
change in the stream happened gradually or all on a
sudden. From the Rubkari (Ex. H. 27) it appears that
in 1283 Fasli the river suddenly altered its course and
cut away not only the vacant accretion to Sikha but
also a part of the mouza as it existed at the date of
settlement. The land thus cut off was treated as an
increment to Jhawa Nagla and Gurganwan and fresh
settlement was made with the Zemindars of these
villages. It is stated by the Assistant Collector of
Barei!ly in this Rubkari that the existence of the
custom was proved by careful local investigation and
it was to the effect that the bed of the river should
always be held to be the boundary and that it should
tll I. J;.. R. 6 All. 479 ot 481,
S.C.R.
SUPREME COURT REPORTS
377
be so held whether the river suddenly altered its
1951
course or gradually encroached on any mouza. The
-
Peshkar, who was deputed to make an enquiry, quoted Ra•;.,,,V~Lal
a number of instances where the river altered its
a
v.
•
course both ways within the last 30 years prior to Radke Sham
this date. This Rubkari, it is to be noted, is dated
and OIM.ra.
the 8th November, 1876. Ex. D-1 is a judgment of
the Subordinate Judge of Bareilly dated the 29th of MukherJ•a J.
July, 1907, and it was passed in a suit instituted by
the proprietor of mouza Sikha against the owner of
Jhawa Nagla. The que!i_tion raised was whether a
quantity of land appertaining to mouza Sikha which
was detached by a sudden change in the course of the
river and thrown on the Jhawa N agla village could be
claimed by the plaintiff. The answer was given in the
negative, and the decision was based entirely upon the
custom of Dhar Dhura which was held to be applicable
even when the change was sudden. These documents
furnish clear proof of the custom being held applicable
to cases of the river suddenly altering its course and
cutting off blocks of land from villages situated on one
or other side of its channel. In the face of this clear
and definite proof of the usage, we are unable to say
that the decision of the courts below on this point is
wrong.
lt is urged by the learned counsel for the appellants
that such custom is unreasonable and should for that
reason be held to be unenforceable in law. It cannot be
denied that the application of the deep stream rule
might work injustice in certain cases as the ga~n or
loss of property is made to depend upon accidental
and uncertain phenomena or mere caprice of nature;
but on the other hand the custom affords a convenient
and effective way of avoiding boundary disputes which
might otherwise be a fruitful source of strife- and contention between riparian proprietors. A custom must
not certainly be against reason, but the reason referred
to here is not to be understood as meaning every unlearned man's reason but artificial and legal reason
warranted by authority of law (1). It is sufficient if
(1) Vide Coke on Littleton 62 (a.),
49
378
SUPREME COURT REPORTS
[1951)
1951
no good legal reason can be assigned against it.
PreR
Dil4 Lal vention of quarrels and disputes between contiguous
~
Oth".,..
villages and estates is certainly an object beneficial to
v.
the community and judged by this test, the custom of
Radhe Sham Dhar Dhura cannot be held to be unreasonable. It may
and Others.
be pointed out in this connection that in some ~hape
or other· this deep stream rule has been recognised in
Mukherjea J. J
.
ndia from very early times as a convenient mode
of settling boundary disputes and Brihaspati, the
Hindu Smriti writer, enunciates the rule in almost
id_i:ntical terms which has been referred to in the writings of later commentators as pointed out by Lal
Mohan Doss in his Tagore Law Lectures on the Law of
Riparian Rights ('). The first contention of the appellant, therefore, cannot be accepted.
The other contention put forward by the appellant
raises the question as to whether the custom of Dhar
Dhura could have any application to the facts of the
present case where the river is not flowing within the
villages at all.
On this point, we think that the correct view has been taken by the learned Subordinate
Judge and the reasons and the conclusion of the High
Court upon it do not appear to us to be sound.
If, as the custom of Dhar Dhura implies, the deep
stream of a river irrespective of the changes in its
course, is to be regarded as a fixed boundary line between two or more villages, it is absolutely necessary
that the main stream of the river must flow within
the limits of these villages. It is only for the purpose
of determining the boundary between certain villages
and estates that the custom of Dhar Dhura can be
invoked; and unless the river actually divides the
villages or estates, there can be no question of its being
regarded as a boundary line between them and in such
circum~tances the deep stream rule cannot possibly
have any meaning. A custom which defeats or has no
relevancy to the very object for which it came into
existence cannot under any circumstance be regarded
as valid. We are not satisfied also that the evidence
11) Ville Doss on the Law of Riparian Righ~s p. 178
..
S.C.R.
SUPREME COURT REPORTS
379
in the record establishes the existence of such custom
I9n
at all.
Section 2 of Regulation XI of 1825 makes it Ram Dfw.m Tm
perfectly clear that a custom contrary to the provisions
and otheY•
of the Regulation would be enforceable only when it is
v.
a custom for determining the rights of proprietors of RadheShain
two or more contiguous estates divided by the river-.
and OtlierB.
When the river ceases to divide the estates, the rights Mtik'-J•a .J.
of the riparian proprietors can be determined only in
accordance with the provisions made in the Regulation
itself. It has been argued by Mr. Banerjee, appearing
for the respo11dents. that a·55uming that the custom of
Dhar Dhura could not be invoked by the defendants
when the river had receded beyond the limits of mouza
Sikha, still the plaintiff in order to succeed in the suit
must have to show how he acquired title to the tract
of land lying to the north and west of the "dabri" or
the old water course, which is the subject matter of
the claim in the present suit. The answer to this
argument would clearly be that when the main current
of the river was at the place where the "dabri" .stands
at present, the entire stretch of land lying to the
north west of the main.stream came to the plaintiff
under the custom of Dhar Dhura. In the year 1341
Fasli the river suddenly changed its course and as it
shifted t0 the north and west beyond the limits
of mouza Sikha, the custom of Dhar Dhura would no
longer govern the rights of the parties and the .title
to the plot of land, which is the subject matter of
dispute, must be determined ip. accordance with the
provisions of the Regulation itself. As the change in
the course of the river was sudden and not gradual
and the character and identity of the land hav~
remained intact, the plaintiff would clearly be entitled
to possess the land on the strength of his original title
as provided for in section 4, clause (2), of Regulation
XI of 1825. In our opinion, therefore, the decision of
the learned Judges of the High Court .on this point is
not correct and should be reversed.
Mr. Banerjee argues further that even if his clients
cannot claim the disputed land under the custom of
Dhar Dhura so long as the river fiC1ws outside the limits
380
SUPREME COURT REPORTS
[1951)
1051
of the village, their rights under the custom should
Ram Doon LU r.ev~ve as soon as. the rive~ come~ .down within the
amt other.
limits of mouza S1kha. This position certainly has
v.
got to be admitted but as we are concerned with the
Radh' Sham state of affair£ existing at the date of the institution of
and Other•.
the suit and there is no evidence on the record as to
the position of the river at the present moment, the
J1.ukherjea J,
1951
AJ>Til 9.
plaintiff will be entitled to a decree in the form as it
was given by the trial judge, it being clearly understood that the rights declared in this suit would be
subject to the custom of Dhrtr Dhura which the defendants may invoke if and when the proper occasion arises.
Subject to this observation, we allow the appeal and
restore the judgment of the trial judge.
The plaintiff
No. I wiJI be entitled to his costs.
Appeal allowed.
Agent for the appellants: R. S. Narula.
Agent for the respondents : Tarachand Brijmohan
Lal.
THE UNITED COMMERCIAL BANK LTD.
v.
THEIR WORKMEN
(and other cases)
UNION OF INDIA-Intervener.
[SHRI HARILAL KANIA C.J ., SA!YID FAZL Au,
PATANJALI SASTRI, MEHR CHAND MAHAJAN,
MUKHERJEA: S.R. DAS and VIVIAN BOSE JJ.J
Industrial Disputes Act (XTV of 1947), ss. 7, 8, 12, 16-Rules
under the Act, R. 5-Constitution of Tribunal of three membcrsAbsence of one of three members on other duty-Absent member
rejoining after some time-Validity of awards made during his
absence by the two remaining members, and by all of them after
he rejoined-Construction and effect of ss. 7, 8, 12 and Rule ~.
The Central Government constituted an Industrial Tribunal
under the Industrial Disputes Act, 1947, consisting of A, B, and C