Lord Carson:-

The defendant-appel lant is the owner of Mauza Rahimpur and the plaintiffs-respondents are the owners of Mauza Mansi in Pergana Farkia. The river Gandak or Bari Gandak flows between the two villages, Mauza Mansi, being situat ed on its northern side, and Mauza Rahim pur, on its southern side. The river Ganges flows at some distance to the south of the Gandak. In 1899 the Ganges began its encroachment northwards and ultimately joined with the Gandak, and by the com bined action of the two rivers certain of the lands which had formed part of the Mauza Mansi were "diluviated" i. e., the surface soil (the cultivable soil) was wholly washed away. In course of time, however, the waters receded and about 589 bighas of the land, including the lands in question in this action, gradually reappeared towards the south in 1906, and by degrees the land became hard and firm soil, capable of being cultivated in the usual manner. The appellant took possession of the said lands on the ground that by immemorial custom the middle line of the bed of the Gandak formed the boundary line between Mansi and Rahimpur, and that owing to the change in the course of the Gandak the land which had reappeared was now on the southern side of the bed of the said river and belonged to the appellant as owner of the Mauza of Rahimpur. Magisterial proceedings ensued, and the possession taken by the appellant was protected by an order made on the 14th December, 1908, under the Criminal Procedure Code, S. 145. An appeal against the said order was rejected on the 21st May, 1909. The present action was then brought by the plaintiffs against the appellant and others who were in possession of the said lands, asking for a declaration that they belonged to Mauza Mansi and were the property of the plaintiff's. The contention raised by the appellant-defendant is very clearly stated by the Subordinate Judge before whom the suit came for trial :-

"The defendant's contention," says the learned Judge, "is that whatever altera tions may take place in the course of the Gandak and whatever shiftings may occur therein the main channel of the Gandak forms the constant boundary of Mauza to its north and south by virtue of a clear, and definite and immemorial usage, custom or usage. So the disputed land which is just to the south of the present flowing Gandak forms a part and parcel of Rahim pur and becomes the property of the Rahimpur Malik, the defendant No. 1."

The learned Subordinate Judge found as a fact and his finding has not been chal lenged that

"the stream to the north of the disput ed land is the stream of the Bari Gandak and it is a continuation of the Bari Gandak, which is just to the west of Mansi, and it has fallen into the Ganges near about Gogri after taking a wandering course near the disputed land."

The Subordinate Judge, however, decid ed upon the evidence, which will be dealt with later, against the appellant-defendant upon the question of the custom alleged holding.-

"that the flowing Gandak is not the constant boundary of Mansi and Rahim pur and that no such custom has been proved to exist."

In the result he entered judgment for the plaintiffs for recovery of the said lands.

From this judgment the defendant-ap pellant appealed to the High Court of Judicature at Patna, who, in the result affirmed the judgment of the Subordinate Judge, making certain modifications and directions with a view to ascertaining the exact area to be delivered up.

The judgment, however, of the High Court was based on entirely different considerations from those put forward by the Subordinate Judge. The learned Judges of the High Court did not agree with the Subordinate Judge that no custom or usage had been proved. As some argu ment has been addressed to the Board to show that the High Court had not found the custom proved, it is necessary to set out the words upon this point used by Mr. Justice Roe, who delivered the judg ment of the Court :-

"On a consideration of the Revenue Survey maps of 1837 and 1846, the Gangetic survey of 1865 and the Cadastral survey of 1887, it appears to me to be certain that there is, if not a custom of Pergana Farkia, at any rate a general usage, whereby in lands reformed by a gradual accretion on one bank of the Gandak and cut away from the other bank by diluvion the ownership of the land so accreted goes with the ownership of the bank......Now we may concede for the purpose of the argument in this case that the custom is precisely stated by Mr. Aguilar, and I myself would go further and say that upon the whole of the evidence of the plaintiff's witnesses it is certain that where lands are washed away and reform gradually there is a general usage upon the banks of the Gandak in this region whereby the inhabitants of one village do not cross the river to cultivate lands upon the other side, etc.''

The learned Judges, however, held that the establishment of such a custom was no defence to the present suit :-

"The lands," they said, "have not been diluviated by the Gandak and they have not been recovered from the Gandak. They were washed away by the Ganges, and have been recovered from the Ganges, and this is clearly stated in paras. 4, 5 and 6 of the plaint. I cannot see that a custom which regulates only questions of alluvion and diluvion by the Gandak can be applied to alluvion and diluvion by the Ganges."

The defence of the appellant-defendant under the custom was based upon S. 2 of Regulation XI of 1825, which is in the following terms :-

Whenever any clear and definite usage of shekust pywust respecting the disjunc tion and junction of land by the encroach ment or recess of a river, may have been immemorially established, for determining the rights of the proprietors of two or more contiguous estates divided by a river, (such as that the main channel of the river dividing the estates shall be the constant boundary between them, what ever 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 relative to alluvial land between the parties whose estates may be liable to such usage.

Assuming as the High Court did that the custom alleged was proved, their Lord ships can sea no reason for refusing to give effect to this rule because the condi tions which arose in the present ease were brought about by the overflow of the Ganges into the Gandak. Whatever may have been the cause of the river Gandak becoming so swollen as to bring about the results already referred to, whether by floods or by the overflow of the Ganges into the Gandak, their Lordships cannot see anything in the regulation quoted which prevents the main stream of the Gandak continuing to be the boundary after the lands had been diluviated, nor do they think that such diluviation can be disassociated from the action of the Gandak.

The real question therefore remains was the custom proved ? was the Subor dinate Judge right in his finding that there was no such custom ? or, was the High Court right in coming to the opposite conclusion, as in their Lordships' opinion they did ? Their Lordships, having care fully considered the evidence, have come to the conclusion that the finding of the High Court in this respect was right. It is unnecessary again to refer to the surveys and other documentary evidence already quoted for the judgment of the High Court. As regards the verbal evidence, which consisted of a vast array of witnesses upon both sides, whilst as the High Court points out, upon the whole, even the plaintiffs' witnesses support the alleged custom, their Lordships are of opinion that the evidence called for the appellant-defendant establishes it beyond any reason able doubt.

The Subordinate Judge, who has ana lysed all the evidence most carefully, quotes the witnesses for the defence who had deposed to changes of land in very many cases, and on both banks of the river, by reason of a change in the course of the bed of the river when alluvial and diluvial occurrences similar to those in the present case had occurred. He then says :-

The instances referred to above no doubt afford cogent evidence in proof of the usage. But there is no guarantee that the gaining and the losing proprietors have acquiesced in or recognised the changes, nor is there evidence that such a state of things has continued from time immemo rial. The defendant's witnesses have personal knowledge of the custom not ex tending over 20 years at the most, the rest is based on hearsay evidence."

Their Lordships are of opinion that the Subordinate Judge did not sufficiently consider the fact that if the changes de posed to had not been acquiesced in such want of acquiescence or recognition of the changes deposed to could easily have been tested, but in reality there was no serious challenge of the accuracy of the vast number of instances which were deposed to. It is also to be noted that the Subor dinate Judge entirely omits to deal with the admission made as to the custom by the plaintiffs' own witnesses. As to the date from which the custom is said to have prevailed, after the existence of the custom for some years has been proved by direct evidence, it can only, as a rule, be shown to be immemorial by hearsay evidence, and it is for this reason that such evidence is allowable as an exception to the general rule. It has already been pointed out, and indeed, the contrary has not been urged before the Board, that the Subordinate Judge has found that the lands in question are formed through the changes which have taken place to the south of the river Gandak, and that being so, and the custom having been proved, it follows that the claim of respondents to possession of the lands cannot be sustain ed. Their Lordships will, therefore, hum bly advise His Majesty that this appeal should be allowed, with costs, the decrees of both Courts set aside, and that the suit should be dismissed with costs.

Appeal allowed.