RAM DHAN LAL AND OTHERS versus RADHE SHAM AND OTHERS

Citation: [1951] 1 S.C.R. 370 · Decided: 19-03-1951 · Supreme Court of India · Bench: BIJAN KUMAR MUKHERJEA · Disposal: Appeal(s) allowed

Judgment (excerpt)

370 
SUPREME COURT REPORTS 
[1951) 
1951 
due consideration at the hands of the executive 
-R.,,., authorities. 
Janardan 
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, 
1 d , 
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· 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 dis-
missed 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 s11d-
denly-River flowing entirely outside the villages which it divided-
Whether 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 deter-
mined 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 appel-
lants. 
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 Allaha-
bad 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 com-
menced 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

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