Wahiwatdar Substituted by Moreshwar Vs. Narayan & Ors  Insc 412 (26 August 2003)
Shah & Dr. Ar. Lakshmanan. Shah, J.
by the judgment and decree dated 8.10.1987 passed by the High Court of Bombay
in Second Appeal No.112/80, the plaintiff appellant has filed this appeal.
time of hearing of this matter, despite service, none appeared for the
outset, learned senior counsel Mr. Bobde submitted that dealing with similar
facts and contentions, this Court in Tulsi Ram and others v. Mathurasagar Pan Tatha
Krishi and another [(2003) 1 SCC 478] held that there cannot be any customary
right of getting lease or licence of profits-a-prendre of catching fish from a
tank owned by the appellant.
appreciating the said contention, we would refer to the facts and findings
recorded by the Courts below: - Plaintiff appellant filed Regular Civil Suit
No.60 of 1998 before the Civil Judge (Jr. Divn.) at Ramtek for a declaration of
title to the tank and for permanent injunction restraining defendants from
interfering with the plaintiff's rights to that tank either by fishing or
otherwise and also for recovery of Rs.2000/- as damages. In that suit, after
recording the evidence, the trial Court arrived at the conclusion:
the proprietors used to give a right to catch and carry away fish from the suit
tank under the lease /leases that used to be granted by them annually. Some of
those documents are
for 1894-95 vide Ex.138
for 1912-13 vide Ex.139 and
for 1942-43, vide Ex.140.
is however nothing in these documents to show that the theka or lease used to
be given only to the Dhimars of Parshioni. But, in view of plaint allegations,
it may be taken for granted such theka used to be given to the said Dhimars.
What is, however, important to note in this connection is that the said
documents go to indicate that the act of catching fish in the suit tank was
only permissive and not on account of any independent right as such as in the Dhimars."
The Court also observed that the dhimars had no right independently of the theka
agreements with the proprietors and it was held that the dhimars (defendants)
had been catching fish in the suit tank not in their own right of profits-a-prendre
but only as licensees or lessees of the plaintiffs. Finally, the Court held
that plaintiffs are absolute owners of the suit tank and the defendants were
restrained from interfering with the plaintiffs' right over the suit tank
either by fishing or otherwise in future.
that judgment and decree, defendants preferred Regular Civil Appeal No.162 of
1975. The Court after considering various documentary evidence including the
lease deed held that if this document is given its plain meaning, it would show
that dhimars had got the fishing right under the lease and it was a permissive
one. The Court also held that from the evidence on record and the admission of
one of the defendants, it was clear that rights of the parties were governed by
the contract entered into between them. The Court thereafter arrived at the
conclusion that custom has grown in the village and it can be taken to be local
custom followed by the lambardar since time immemorial that the lease should be
in favour of the dhimars. The court also held that dhimars have failed to prove
that they have an absolute right to fish and they have been exercising the
right independently in their own paramount right. The Court partly allowed the
appeal and held that the plaintiffs are absolute owners of the suit tank.
However, it was further declared that the defendants have a customary right to
obtain lease or licence to catch and carry away the fish from the plaintiffs'
tank and they have a right to catch and carry away the fish from the tank by
executing Thekapatra. The Court further directed that if the plaintiffs fail to
give the lease or licence, the defendants can move the Court for a suitable
relief by way of separate proceeding and that right of the dhimars is
conditioned by the fact that they have to pay Theka amount mutually to be
agreed between them and the plaintiffs.
judgment and order was challenged by the plaintiffs by filing Second Appeal
before the High Court. In that appeal, the Court arrived at the conclusion that
except the fishing rights, the defendants have no other right or interest in
the tank and that the custom of fishing by the dhimars was in existence prior
to 1861 and continued thereafter, which shows that it is acquired by long user
which was recognised by the community and also by the administration. The Court
thereafter observed thus: "
In the year 1920 Central Provinces Land
Revenue Code came into force which describes the Wajib-u-urj as the village
administration paper under Section 79 of the said Act. In view of the above
statutory provisions it became a settlement record and statutory presumption
and correctness is attached to it. It is pertinent to note that while it is
clear that the landlords who own agricultural lands were declared as Lambardars
of the said tank for the reason that they were getting water for irrigation
from the said tank while the claim of the dhimars fisherman as a customary
right to fish from the tank was not recorded subsequently because of their low
status and illiteracy. In fact, their fishing right should have been recorded
in clear terms, but because of their illiteracy they could not agitate their
cases before the authorities who had prepared the administrative records of the
said area during that period. Agreement Exh. 165 gave rise some explanation
about the facts which culminated in the agreement. This agreement shows the
custom in favour of the dependants..." Finally, the Court held that
"the entire evidence, therefore, goes to show that from the long usage
followed between the parties the practice of giving the fishing rights in
respect of the suit tank has grown since time immemorial to the dhimars only
and that they have got a customary right to obtain lease." The Court
observed that the dhimars fishermen are having a customary right to catch and
carry fish from the suit tank for which the plaintiffs are bound to grant lease
or licence. Hence, appeal was dismissed.
order is challenged by filing this appeal.
the record, it is apparent that there was no justifiable reason for the High
Court to observe that the claim of the dhimars fishermen as a customary right
to fish from the tank was not recorded because of their low status and
at the time of admission of this appeal on 21.4.1988, this Court passed
following interim order:
the disposal of the appeal there will be stay.
rights of the parties during the current year shall be as determined by the
award rendered by the District Deputy Registrar, Co-operative Societies, Nagpur subject to the right of the parties
to challenge the quantum of the profits so determined. However, from the
ensuing fishery year and for every succeeding year, i.e. the seeding season
fishery right for each year would be put to auction by the Sub-Divisional
Officer, Ramtek and the right would be given to the highest bidder. The auction
price so recovered shall be deposited in the High Court.
High Court will permit the appellants to withdraw half of the amount on
furnishing of Bank Guarantee to the satisfaction of the trial court. The High
Court shall deposit the remaining amount in a fixed deposit with the State Bank
of India." As no proper bidder came
forward because of short period of one year for fishery rights, an application
was moved seeking modification of the above order. After calling the report of
Sub- Divisional Officer, this Court vide order dated 11.5.2001 modified the
aforesaid order dated 21st
April, 1988 and passed
the following order:
attention has been drawn to the Government Circular dated 5th July, 1995, which
has categorised the ponds one having the area of 200 hectares and another more
than 201 hectares. According to this, it recommends five years to be the period
for giving of lease to the Society concerned. This also reveals that it takes
about three years for getting fishing production.
to the aforesaid facts and the report filed by S.D.O., we feel it appropriate
and accordingly direct by modifying our order dated 21st April, 1988 by increasing the period from one year to three years. Rest
of the conditions may remain the same
" At the time of hearing of this
matter, learned senior counsel Mr. Bobde contended that once it is established
on record that the respondents were exercising right to fish on the basis of
lease or licence, the High Court manifestly erred in arriving at the conclusion
that the respondents had acquired a customary right to obtain lease. It is his
contention that once there is a lease, the rights of the parties are governed
by the lease-deed. He also contended that if licence was granted for fishing
from tank, licence can be cancelled at any point of time. He relied upon the
decision rendered by this Court in Tulsi Ram's case (supra), wherein the Court
dealt with similar dispute from the same area and finally negatived the
contention raised by dhimars of Ramtek. The Court held that as a matter of
fact, only a licence to fish was granted and for grant of such licence,
consideration was paid by the fishermen which was used for the maintenance of
tanks for the sake of owners and not for the sake of fishermen. The tanks were
utilized for cultivating betel leaves which was and is their occupation.
tanks which were the sole source of water for cultivation for the betel leaves
were maintained by the owners namely a body of barais.
learned counsel further submitted that order in terms of the said matter be
also passed as the question involved in this matter is the same.
that case, the Court has directed that fishing rights be auctioned and the
rights thereof be conferred on dhimars.
view, there is no reason to take any other view than what is held by this Court
in Tulsi Ram's case (supra). On this aspect, the trial court has rightly relied
on the documents produced on record which indicates that the proprietors used
to give a right to catch and carry away fish from the suit tank under the
lease/leases that used to be granted by them annually. Some of the documents
referred to by the trial court are
for 1894-95 vide Ex.138
bulurz for 1912-13 vide Ex.139 and
for 1942-43 vide Ex.140.
these documents and the averments made in the plaint, the Court arrived at the
conclusion that the dhimars were having permissive right to catch fish from the
tank. Once there is a permissive right under the lease or licence, it would be
difficult to arrive at the conclusion that the respondents have acquired
customary right to get lease or licence and that is settled by this Court in
Raja Braja Sundar Deb v. Moni Behara and others [1951 SCR 431] wherein the
Court after considering similar contentions held as under: "It is again
not possible to hold that the fishermen residing in these villages are a
corporate body and that being fishermen by profession it has the effect of
incorporating them. We find ourselves unable to subscribe to the view of the
High Court that the defendants constitute some kind of a unit simply because
they are a body having a common interest to fish in this fishery; unless the defendants-fishermen
form a corporate body, or it is found that a trust was created for their
benefit, such a body of persons could acquire no right by the doctrine of lost
grant. A right to fish from the fishery based on mere inhabitancy is capable of
an increase almost indefinite and if the right exists in a body which might
increase in number it would necessarily lead to the destruction of the subject
matter of grant. Moreover, there could not be a valid grant to a body so
incapable of succession in any reasonable sense of the word, so as to confer a
right upon each succeeding inhabitant.
the reasons given above, the defendants' right to remain in possession of the
fishery on the basis of a lost grant or on the basis of prescription or adverse
possession stands negatived. All that appears from the evidence is that a
number of fishermen from time to time have been exercising the right of fishing
with the leave and licence of some of the owners. This is not sufficient for
the acquisition of the right either by adverse possession or by prescription.
Further, no finding can be given in their favour as the evidence does not
establish that they have been paying uniformly the same amount of rent."
The aforesaid judgment is followed by this Court in Tulsi Ram's case (supra).
this view of the matter, the appeal is partly allowed. The judgment and decree
passed by the High Court is modified. The judgment and decree passed by the
trial Court is confirmed with a modification that right to fish in the suit
tank would be granted by a public auction to the dhimars of that area. There
shall be no order as to costs.