Raja Braja Sundar Deb V. Moni Behara
& Ors [1951] INSC 22 (27 March 1951)
MAHAJAN, MEHR CHAND MUKHERJEA, B.K.
AIYAR, N. CHANDRASEKHARA
CITATION: 1951 AIR 247 1951 SCR 431
CITATOR INFO :
R 1955 SC 228 (7)
ACT:
Fisheries--Fishermen of particular villages
allowed to fish for several years by zemindar Acquisition of right to
fish--Presumption of lost grant--Prescription--Adverse possession--Proceedings
under s. 145, Cr. P.C., effect of.
HEADNOTE:
A right exercisable by the inhabitants of a
village from time to time is neither attached to any estate in land nor is it
such a right as is capable of being made the subject of a grant, there being no
ascertainable grantees.
The doctrine of lost grant originated as a
technical device to enable title to be made by prescription despite the
impossibility of proving immemorial user and since it originated in grant, its
owners, whether original or by devolution, had to be such persons as were
capable of being the recipients of a grant.
Where all that appeared from the evidence was
that the fishermen who were residents of certain villages had been for a long
time exercising the right of fishing in certain rivers which flowed through a
zemindari with the consent of some of the zemindars: Held, that the fishermen
residing in these villages cannot be treated as a corporate body or a kind of
unit in whose favour a lost grant could be presumed or who could acquire a
right to fish either by adverse possession or by prescription.
Where, however, there were proceedings under
section 145 of the Criminal Procedure Code between the zemindars and certain
fishermen and the Magistrate found that the fishermen were in possession of the
disputed fishery and he directed the issue of an order declaring their
possession until evicted there from in due course of law and forbidding all
disturbance of such possession until such eviction, and no steps were taken by
the zemindars to set aside the order of the Magistrate within three years as
required by article 47 of the Limitation Act: Held., that so far as the fishermen
who were parties to the proceedings under section 145, the order of the
Magistrate had become final and they were entitled to remain in possession of
the fishery.
An exclusive right of fishing in a given
place means that no other person has a co-extensive right with the claimant of
the right. The mere fact that some other person has a right to a particular
class of fish in the fishery or that another person is 56 432 entitled to fish
at a certain time of the year does not destroy the right of exclusive fishing
in any manner.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 42 of 1948.
Appeal against the judgment and decree dated
the 21st April, 1943, of the High Court of Judicature at Patna (Fazl Ali C.J.
and S.C. Chatterji J.) in First Appeal No. 17 of 1939 arising out of decree
dated the 19th July, 1939, of the Subordinate Judge at Puri in Original Suit
No. 62 of 1936.
Manohar Lal (G. P. Das, with him) for the
appellant.
B.N. Das (Sri Kant Mahanti, with him) for the
respondents.
1951. March 27. The Judgment of the Court was
delivered by MAHAJAN J .--The dispute in this appeal is between the fishermen
residing in nine villages of Kills Marichpur, a permanently settled zamindari
in the Puri Collectorate (Orissa State) and the Raja of Aul, the owner of seven
annas, seven pies, and ten karants share in the zamindari.
The other sharers in the zamindari are
defendants 19 to 29.
Within the ambit of the estate flows
"Devi Nadi" with its several branches and tributaries. Three
fisheries ''Madhurdia, "Marichpurdia" and "Maladia"
appertain to this estate. The controversy in this appeal concerns the fishery
known as the "Madhurdia" fishery.
In the year 1936, three suits, Nos. 62, 63
and 64, were brought by the Raja of Aul against defendants 1 to 18 on behalf of
themselves and other fishermen residing in the nine villages of Killa Marichpur
for a declaration in respect of his rights in the three above mentioned
fisheries.
All these suits were decided in his favour by
the trial court. The defendants preferred no appeal in suits 63 and 64, with
the result that the controversy regarding the two fisheries involved in these
two suits stands concluded by the decision of the trial court. In suit No. 62
of 1936, however, the 433 defendants preferred an appeal to the High Court and
it was partially allowed. The decree of the trial Judge in favour of the
plaintiff was modified and it was held that the defendants had exclusive rights
as tenants at will to fish in this fishery during the Hilsa season (Margasir to
Baisakh) and that the plaintiff was not entitled to a declaration or an
injunction in respect of that period. The plaintiff thereupon obtained leave to
appeal to His Majesty in Council and that appeal is now before us for decision.
It was alleged in the plaint that the
proprietors of Marichpur zamindari are the exclusive owners of the fishery in
question and have all along been exercising their right of catching fish in the
same sometimes by employing fishermen and sometimes by letting out the fishery
to them, that the plaintiff has ever since his acquisition of the zamindari
interest been the owner in khas possession of the fishery right according to
his share in the zamindari, that the defendants-fishermen were never in
possession of the said fishery, nor have they any right to it, that in the year
1918 they started proceedings under section 145, Criminal Procedure Code, to
create evidence of their possession but in spite of those proceedings the
plaintiff continued to be in possession of the fishery and has been catching
fish by employing fishermen, that by taking advantage of the fact that there
are several co-sharers in the zamindari and there is mismanagement of the
estate, the defendants wrongfully and unlawfully trespassed on the fishery from
time to time between May, 1933, and November, 1933, and disturbed the plaintiff
in the enjoyment of his right and have caused loss to him and his co-sharers by
catching large quantity of fish without any leave or licence. On these
allegations, the plaintiff claimed a declaration to the effect that defendants
1 to 18 in their personal and representative capacity have no right or title in
the fishery known as "Madhurdia" fishery or to the fishery in the
southern portion of the area recorded as the river block, Risilo and Husgarh.
Prayer was also made for the grant of a perpetual injunction restraining the
defendants from 434 fishing in the above fishery and in the above mentioned
blocks and for the award of a sum of money by way of damages and on account of
price of fish., The defendants contested the allegations made in the plaint and
asserted that the fishermen of Killa Marichpur including the principal
defendants and their ancestors, about 846 persons in all, have all along
remained in undisturbed actual physical possession of the fishery known as
"Charkhatia" alias "Madhurdia" fishery on a fixed annual
rental of Rs. 135-7-0, and have a right to remain in possession in perpetuity
on payment of that rent; that they have acquired this right in all possible
ways, i.e., by grant, custom, adverse possession and easement.
On these pleadings of the parties the trial
Judge framed as many as nine issues, the material ones being issues 6 and 7, which
are in these terms :-"6. Has the plaintiff any title to the disputed
fishery ?
7. Have the defendants Nos. 1 to 18 acquired
any right, by adverse possession, prescription or custom ?" The trial
Judge on these issues held that the defendants neither in their personal nor in
their representative capacity had any right or title in the fishery in question
and issued a permanent injunction against them from fishing in it. The claim
for damages was disallowed. It was observed by the learned Judge that the
defendants did not claim the right to catch all the fish found in the fishery
but that they had confined their claim in respect to Hilsa fish only during the
Hilsa season between the months of Margasir and Baisakh (November to April) and
that as regards the other varieties of fish found in these waters during the
rest of the year they did not assert any right to catch fish. He also observed
that 'the defendants did not deny that the plaintiff was the owner of the
zamindari and as such owner of the soil and of the waters of the fishery, but
that they claimed a subordinate right, i.e., the right of fishing in the 435
waters belonging to the plaintiff and his co-sharers during the Hilsa season to
the exclusion of the plaintiff and his co-sharers. In view of these contentions
the onus was laid on the defendants to prove their permanent right of fishing
in these waters by grant, custom, prescription or adverse possession and it was
held that the defendants failed to discharge the onus that rested on them. Acquisition
of the right by grant, prescription and adverse possession was held not
provable in law in favour of an indeterminate and fluctuating body of persons.
The claim for permanent tenancy in the fishery was negatived on the ground that
there was no evidence to show that the tenancy came by descent to these 846
persons from the persons who actually took it in the year 1842, or that it was
obtained from all the sixteen anna landlords, or that there was any fixity of
rent. It was further said that there was no certainty as to who were the owners
of the right, as to the local area over which the right was to be exercised, as
to the measure of the right and of the periods during which the right could be
exercised and that in these circumstances the defendants' claim could not be
upheld. The defendants' contention that under article 47 of the Indian
Limitation Act the plaintiff had lost his right was held unsustainable and the
plea of custom was ruled out on the ground that the custom alleged would be of
an unreasonable kind.
All the questions raised in the trial court
excepting the question of custom were canvassed by the defendants before the
High Court. The High Court in a judgment, by no means clear or satisfactory,
reached the conclusion that the defendants since the time of their predecessors
had all along been fishing in the disputed fishery as of right under a lost
grant and that the plaintiff's story that he had been in enjoyment of the
fishery was not true and that the defendants' right to fish in the disputed
fishery was established. One would have thought that in view of this finding
the plaintiff's suit would have been dismissed 436 but this did not happen. The
High Court proceeded to find that though from the evidence it appeared that the
right was being exercised by the defendants or their predecessors from a very
long time, that is to say, from the year 1842, yet there was no evidence to
justify the inference that they had got a permanent right. The defendants' plea
therefore that they were permanent tenants of the fishery in dispute was not
upheld. As regards the defendants' contention that the plaintiff was bound by
the order passed in proceedings under section 145, Criminal Procedure Code, it
was found that he not having challenged that order within the prescribed
period, his right to khas possession of the disputed fishery except to the
extent of five pice share was extinguished under section 28 of the Limitation
Act but that his proprietary right subsisted as it was never denied. It was further
held that the plaintiff's right to khas possession of this fishery was also
extinguished by operation of article 144 of the Indian Limitation Act.
Plaintiff's evidence that he had been catching fish during the Hilsa season by
employing other fishermen was disbelieved and it was held that the defendants
had been exercising exclusive right to fish in the disputed fishery during the
Hilsa season adversely to the plaintiff and the other co-sharers for more than
twelve years. In spite of these findings the High Court reached the somewhat
strange conclusion that the defendants acquired by adverse possession a mere
tenancy at will and that it could be determined by the entire body of landlords
and the plaintiff being only a co-sharer could not bring the present suit in
his own behalf and it had not the effect of determining the tenancy and hence
the plaintiff could not be granted the declaration and the injunction
restraining the defendants from fishing during the Hilsa season. As regards the
point raised by the plaintiff that by reason of the change in the course of the
river the fishery in dispute was not the same regarding which an order was made
under section 145 proceedings or in which the defendants have been exercising
their right, it was held that this contention was without force because 437 the
river was identical and the channels, whether old or new, which comprise the
Madhurdia or Charikhati fishery, have always formed one connected sheet of
water and that fishing in different parts of such a connected sheet of water
comprised in the same fishery can hardly be said to be a separate act of
aggression so as to disturb the continuity or extent of adverse possession and
that the fishermen though a fluctuating body, have unity of interest and possession
and could not be described as several independent trespassers. As a result of
these findings the decree of the trial Judge was modified and the plaintiff was
given a permanent injunction restraining the principal defendants from fishing
in the disputed fishery except during the Hilsa season (Margasir to Baisakh)
during which the defendants were declared to have exclusive right of fishing.
Against the decision of the High Court no
appeal was preferred by the defendants though they had only been found to be in
possession of the fishery in the status of mere tenants at will. The plaintiff
challenged this decision and contested the finding that the defendants were
lawfully in possession of the fishery and could exercise their right of fishing
during the Hilsa season exclusively. The real grievance of the plaintiff seems
to be that by the decision under appeal the High Court has declared a
fluctuating body of persons tenants at will, and that such a tenancy cannot be
determined as its constitution is liable to vary with each birth and death and
with influx or efflux of fishermen to and from these villages. It was argued
that the High Court has erroneously found that the defendants were in
possession of the fishery and were in enjoyment of the fishing right under a
lost grant and that the plaintiff's right to khas possession of the fishery had
been extinguished by operation of articles 47 and 144 of the Limitation Act
read with section 28 of the Act. It was contended that from the evidence placed
on the record the only correct conclusion to draw was that from time to time
some fishermen were allowed tot fish in these waters by a number of landlords
438 on payment of rent but that the present defendants were not the descendants
of those fishermen who were occasionally granted leave to fish and that those
isolated acts of letting the fishery were not connected with one another and
from these it could not be inferred that the defendants or their predecessors
were in continuous possession of the fishery on payment of a fixed rent and
that the present defendants were mere trespassers and had no right to fish in
the disputed fishery. It was further contended that no title of any kind could
be presumed to exist in the defendants to the fishery in suit and on the basis
of a lost grant as in this case there was no capable grantee and that even
title by adverse possession or prescription could not be acquired by them as
they form an indeterminate and fluctuating body of persons. As regards the
finding of the High Court that the plaintiff's suit was barred by article 47 of
the Limitation Act and his title to khas possession was extinguished by
operation of the provisions of section 28 of the Indian Limitation Act, it was
contended that the proceedings that took place in the year 1918 were wrongly
labelled under section 145, Criminal Procedure Code, and that in substance the
order made in those proceedings fell within the ambit of section 147 of the
Code and therefore article 47 had no application to the case and the plaintiff
was not bound to bring his suit within three years of that order to enforce his
right. It was further contended that the order could only benefit the parties
impleaded in those proceedings and the other defendants could not derive any
assistance from it, that in any case the order could not bind the plaintiff to
the extent of the share purchased by him from co-sharers not made parties in
those proceedings and that the river having changed its course in the year
1925, the fishery as it stood in 1918 was no longer in existence and in ,the
substituted fishery the plaintiff's right could not be held to have been
extinguished by the effect of the order made in section 145, Criminal Procedure
Code, proceedings. The learned counsel for the respondents contended that the
defendants had in the status of 439 tenants an exclusive right to fish in the
fishery 'and were entitled to remain in enjoyment of it on payment of a fixed
rent of Rs. 135-7-0 in perpetuity, that the plaintiff's right of fishing in the
fishery during Hilsa season had become extinguished by operation of article 47
and article 144 of the Indian Limitation Act. It was denied that by a change in
the course of the river, if any, the defendants' right had in any way been
affected. In order to appreciate the respective contentions of the parties it
is necessary to state a few facts which emerge from the documentary evidence
produced in the case.
The State of Orissa came under the British
rule in the year 1803. A revenue settlement of the State was made in 1904-05.
From the village note prepared during the settlement, it appears that Killa
Marichpur was Originally owned by one Padmalav Mangaraj and that during the
time of his great grandson Balabhadra Mangaraj the estate was sold in auction
for satisfaction of debts incurred by him and was purchased by (1) Mohan
Bhagat, (2) Chakradhar Mahapatra, and (3) the ancestors of one Haziran Nisa
Bibi in equal shares.
From the jamabandi of the year 1842 (Exhibit
C) it appears that the jalkor income of Killa Marichpur zamindari at that time
was Rs. 135-7-0, and this was being realised from Hari Behera and Brundu Anukul
Singh, two fishermen. It is not clear from this document in what status they
were paying this amount and what was the nature of their tenancy.
Exhibit A is a kabuliyat of the year 1845 by
Brundu Anukul Singh and Hari Behera in favour of Babu Mohan Bhagat and Bibi
Mobarak Nisa, and it shows that these two fishermen took a lease of the fishing
right in Devi river on payment of Rs. 135 as rent, from the landlords. It was
stated therein that these fishermen will catch fish from these waters according
to former custom and will pay "machdia sarbara" of Rs. 135 in
accordance with the instalments. There is no indication in the kabuliyat that
these two persons were executing it in a representative capacity or that the
lease taken by them was of a permanent character or 440 that the rent payable
was not liable to enhancement in the future. It was contended on behalf of the
defendants that these two persons executed the kabuliyat in a representative
capacity and on behalf of all the fishermen who originally resided in four
villages of Killa Marichpur and who subsequently came to reside in the nine
villages mentioned in the plaint. The only evidence placed on the record in
support of the suggestion and relied upon by the High Court is the statement of
D.W. 11 who was born some time in the year 1873, about 28 years after the
execution of the kabuliyat and who has no special means of knowledge to depose
as to the relationship of persons mentioned in the kabuliyat with the
defendants in the present case or to know the capacity of persons who executed
the kabuliyat. It is not possible therefore to hold that the kabuliyat was
executed in a representative capacity by these two persons and on behalf of all
the persons interested in the present controversy.
There is no evidence on the record to prove
the state of affairs of this fishery between the years 1845 and 187 a Reliance
was placed by the defendants on a number of rent receipts produced by them in
evidence. The first of these is dated 30th 'March, 1873, and was executed by
one of the Mahapatra co-sharers on account of the installment of fishery rent
of "Charkhati" paid through Hari Behera and Rama Behera in the sum of
Rs. 8-12-0. All the co-sharers were not parties to this receipt and it is not
stated what was the total rent payable for the whole fishery. On the 11th May,
1875, another receipt was executed by Bibi Masudannisa and Others, co-sharers
of five anna four pies in the zamindari in favour of Hari Behera and Ananta
Behera and others for a sum of Rs.
18. It seems that different co-sharers were
giving permission to different persons to fish in the fishery on payment of
certain sums of money. There is no evidence whatsoever connecting the receipt
of 1873 given by two co-sharers to two persons with the receipt given by
another set of cosharers to these two persons and it is not possible to say
that these payments were made towards a fixed 441 rent of Rs. 135-7-0 payable
for the whole fishery. The state of affairs of this fishery between 1876 to
1893 remains shrouded in mystery as no evidence for that period has been filed
on the record. On the 1st May, 1894, Mohan Bhagat's descendant gave a receipt to
Pandab Behera and Phagu Behera for Rs. 10, which was to be set off against
fishery rent.
It is difficult to connect this receipt with
the other receipts or to treat it as evidence in support of the defendants'
case of a permanent tenancy. Similar receipts by different co-sharers in favour
of different persons were executed on the 1st May, 1895, 5th May, 1896, 9th
May, 1897, and 22nd October, 1899; but in none of those receipts is any mention
made of any fixed rental of Rs. 135-7-O for the fishery in respect of the whole
year and payable to all the landlords. A printed rent receipt on behalf of one
of the proprietors to Hurshi Behera and Agani Behera of village Alsahi was
given on the 22nd October, 1899. The receipt relates to payment of twelve annas
as arrears of fishery rent and in the receipt it is stated that the cash rent
payable was Rs. 150. This receipt, if it relates to the rent payable to all the
co-sharers, is inconsistent with the defendants' case that the fishery had been
leased out from time immemorial on a fixed rent of Rs. 135-7-0. On the 23rd
August, 1902, a receipt was given on behalf of nine anna seven pie co-sharers
in the zamindari to Maguni Behera and Ram Behera of Kalia Kona and to Sapani
Behera of some other village in the sum of Rs. 83-12-11 stating that the amount
of total rent of which Rs. 83-12-11 was the fractional share of these landlords
was a sum of Rs. 135-7-0. It was contended on behalf of the defendants that the
sum of Rs. 135-7-0 mentioned in this receipt was the identical amount that was
mentioned in the jamabandi of 1842 as payable to the zamindars as income of the
jalker and from this entry an inference should be drawn that the fishery had
been continuously leased for this sum from 1842 to the date of this receipt.
The coincidence relied upon undoubtedly
exists, but on that basis it is not possible to draw the reference suggested as
such an inference would be 442 of a conjectural nature. All these receipts are
consistent with the contention of the plaintiff that from time to time
different co-sharers permitted different fishermen to fish in the fishery on
payment of a certain rental. A receipt similar to the one above mentioned was
also executed on the 5th March, 1906, by certain co-sharers owning eight pies
in the zamindari in favour of some fishermen, the annual rent being Rs.
135-7-0. The "Remarks Column" states that if the rent is more than
mentioned therein, the further amount due would be made good. Same remarks are
applicable to this receipt as to the previous one. The next rent receipt is
dated 19th April, 1907, and is for a sum of Rs.
168-6-0. No inference either way can be drawn
from this receipt. On the 21st June, 1912, a receipt was given in favour of
twelve persons in respect of rent for the year 1317. The receipt was given by
the nine anna seven pie cosharer in the zamindari but it is not clear how this
amount was made up. On the 4th February, 1914, a receipt was given by an eight
pie co-sharer in the zamindari to 174 persons, described as tenants and
residing in different villages of the zamindari for a sum of Rs. 5-13-6 as rent
for the year 1319. The entry in the "Remarks" column is similar to
the receipt above mentioned. The amount of annual rent is mentioned as Rs.
135-7-0 and it is stated that it is being paid in accordance with a decree of
court No. 181. It is difficult to connect this receipt with the other documents
previously discussed. Another receipt dated 30th March, 1914, was given by nine
anna seven pie co-sharers in the fishery to twelve persons for the year 1320.
It seems to us that these occasional receipts given to different persons by
different sets of co-sharers can lead to no definite conclusion in regard to
the rights of the parties. They are consistent with the case argued on behalf
of the plaintiff that by leave and licence a number of fishermen used to fish
in' the waters from time to time and they do not necessarily lead to the
inference of the existence of a permanent tenancy of the fishery in favour of
the defendants on a fixed rent of Rs. 135-7-0.
443 By a registered deed dated 24th May,
1914, the plaintiff for the first time acquired an eight pie interest in the
zamindari in the name of Smt. Mahisthali Patamahadei, his wife, from one
Balaram Das Bhagat, a descendant of Mohan Bhagat. Subsequently he in his own
name and sometimes in the name of the Rani purchased some further shares in the
zamindari and eventually became the owner of seven anna seven pie and ten
kranth share in it. The acquisition of interest by the plaintiff (Raja of Aul)
in the zamindari coincides with the period of the first world war, the
aftermath of which was a rise in prices. Fish which was a cheap commodity and
brought no appreciable income to the fishermen or to the owners became a source
of considerable income and this circumstance led to disputes between the owners
of the fishery and the fishermen. A number of letters of the years 1914 to 1918
have been proved on behalf of the plaintiff showing that he was deriving income
from this fishery.
Similar letters for subsequent periods have
also been proved but no regular accounts of the income so realized were
produced in the case. The enhanced income of the fishery created a scramble for
its possession between the landlords and the fishermen and there was an
apprehension of a breach of peace which resulted in proceedings under section
145, Criminal Procedure Code. A report was made to the police on the 11th
February, 1918, that a dispute had arisen which was likely to cause a breach of
the peace between the landlords of Killa Marichpur and twelve fishermen in
regard to the possession of Charikhati fisheries in Debi river. The Magistrate
on receipt of the police report issued notice to the parties for the 10th
February, 1018, and decided the case on the 10th June, 1918. From his order it
appears that notice was given to all concerned and they were invited to put
their respective claims as regards the facts of the actual possession of the
fishery in dispute before him. On behalf of certain co-sharers evidence was led
to prove that they were in possession of the fishery through one Sundari Behera
and other fishermen numbering about 100. The Rani 444 of Aul who had then eight
pie interest in the zamindari as benamidar of her husband led evidence to establish
that she was in possession of the fishery through fishermen employed by her
agent. Ram Behera, Hrushi Behera and other fishermen of the second party,
twelve in number, led evidence to show that they were in possession of the
fishery on payment of rent and that the owners of the zamindari had never been
in actual possession of the fishery. The Magistrate found that this contention
was true. He disbelieved the story of the witnesses produced by the Rani of
Aul, and also rejected the testimony of the witnesses produced by other owners.
Some Aul fishermen were produced on behalf of the Rani but their evidence was
also not accepted. The same kind of documentary evidence that has been placed
on this record on behalf of the plaintiff was also placed before the Magistrate
but it was not accepted by him. From these proceedings, it further appears that
all the sixteen anna owners of Killa Marichpur issued a notice to the second
party, the fishermen, for surrendering possession of the fishery with effect
from September, 1917, but after service of notice they took no legal steps to
eject them from possession of the fishery; on the other hand, they took the law
into their own hands and made attempts to take forcible possession of the
fishery.
These attempts, however, were unsuccessful.
The result of these proceedings was that the Magistrate found that the
fishermen (the second party) were in possession of the disputed fishery and he
directed' the issue of an order declaring their possession until evicted there from
in due course of law and forbidding all disturbance of such possession until
such eviction. This order indicates that though all the landlords were not
named as parties in the case, yet all of them had notice of the proceedings and
all of them were actually interested in turning out the fishermen from
possession by forcible means, and notice had been given to them on behalf of
all of them. It also appears from those proceedings that though one dozen
people were named as second party in the case, there were certain other persons
also interested in the 445 fishery along with them, but it is difficult to
ascertain their number, names and addresses from these proceedings.
Evidence has been led on behalf of the
plaintiff to prove that after the determination of these proceedings the plaintiff
has been deriving income from this fishery by leasing his right through the
agency of fishermen of Aul. The High Court has not placed any reliance on this
evidence and, in our opinion, rightly. It is not possible to believe that after
a successful fight in the criminal court, the fishermen would have allowed the
men of the Raja or of the Rani to fish in these waters during the Hilsa season.
Both parties led oral evidence to prove that each party exercised exclusive right
of fishing during Hilsa season in the fishery. We have been taken through the
evidence and after examining it, have reached the conclusion that it is of an
unsatisfactory character and valuable rights cannot be decided on its footing.
No steps were taken by the landlords to question the order of the Magistrate
within three years from its date as required by article 47 of the Limitation
Act. The landlords, however, refused to receive any rent from these persons
after the termination of the proceedings and they have been depositing it in
court under the provisions of the Orissa Tenancy Act.
The last purchase by the Raja of Aul of some
interest in the zamindari was made in the year 1935 and having acquired by this
date a substantial interest in it and having discovered that the fishery was a
paying proposition, he brought this suit in the year 1986 on the allegations
set out above and asserted that since about three years the defendants had
started disturbing his possession of the fishery in dispute.
In the circumstances mentioned above this
assertion cannot be taken seriously. In order to get out of the effects of the
proceedings under section 145, Criminal Procedure Code, he alleged that he had
been in possession of the fishery in spite of the proceedings taken under that
section and that his possession had only been disturbed recently. The evidence
on this point was 446 rejected by the High Court and we see no reason to
disagree with that finding.
It is now convenient to consider the
different points canvassed before us by the learned counsel appearing on behalf
of the parties. We find it difficult to uphold the view of the High Court that
the defendants were in possession of the disputed fishery under a lost grant.
This doctrine has no application to the case of inhabitants of particular
localities seeking to establish rights of User to some piece of land or water.
As pointed out by Lord Radcliffe in Lakshmidhar Misra v. Rangalal(1) the
doctrine of lost grant originated as a technical device to enable title to be
made by prescription despite the impossibility of proving immemorial user and
that since it originated in grant, its owners, whether original or by
devolution, had to be such persons as were capable of being the recipients of a
grant, and that a right exercisable by the inhabitants of a village from time
to time is neither attached to any estate in land nor is it such a right as is
capable of being made the subject of a grant, there being no admissible
grantees.
Reference in this connection may be made to a
Bench decision of the Calcutta High Court in Asrabulla v. Kiamatulla(2),
wherein the law on this subject has been examined in some detail. In that case
the question arose whether the right of pasturage claimed by a whole body of villagers
could be acquired by grant, express or presumed. After an examination a number
of English and Indian cases it was held that no lost grant could be presumed in
favour of a fluctuating and unascertained body of persons who constitute the
inhabitants of a village and that such a right could only be acquired by
custom. The defendants in this case are a fluctuating body of persons and their
number increases or decreases by each birth or death or by influx or efflux of
fishermen to or from these villages. From the evidence of D.W. 11 it appears
that formerly the Kouts (fishermen) claiming the right to fish were residents
of four villages, then some of them shifted to other villages on account of
their (1) A.I.R. 1950 P.C. 56. (2) A.I.R. 1937 Cal. 245.
447 houses being washed away, and settled
themselves in other villages. At the time of the suit they were residing in
nine villages. He further deposed that during the last ten or twelve years
there were 600 bohanias and that their families increased, their present number
being 846. It is in evidence that since this evidence was given their number
has gone up to 1500. From the documentary evidence it appears that up to the
year 1918 their number was not very large. Only twelve persons were impleaded
in the section 145, Criminal Procedure Code, proceedings and it was said that
there were some more interested. The maximum number given in one or two
receipts is 174.
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
the 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.
For 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 448
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 next finding of the High Court that the
landlords have lost their right to khas possession of the fishery in dispute by
reason of the operation of article 47 of the Indian Limitation Act is, in our
opinion, sound. The High Court, however, was not right in holding that the
order made in the section 145, Criminal Procedure Code, proceedings was not
binding on the plaintiff to the extent of five pies share. Its true scope and
effect do not seem to have been fully appreciated. The order appears to have
been made after notice to all the landlords and was brought about by reason of
the action of all of them and binds the full sixteen anna interest in the
zamindari. In clear and unambiguous terms the Magistrate declared that the
second party were in exclusive possession of the disputed fishery and that the
landlords had no right to disturb their possession and they were directed to
bring a suit to establish their right to possession. This they failed to do
with the result that the order became final and the right of the landlords to
get into possession of the fishery became extinguished. This order therefore
affirmed the defendants' possession of the fishery on payment of a certain
rental. This right, however, can only be exercised by those who were parties to
the section 145, Criminal Procedure Code, proceedings or their successors in
interest. It was argued by the learned counsel for the appellant that the
proceedings that took place in the year 1918 were in substance under section
147, Criminal Procedure Code, and were wrongly labelled under section 145 of
the Code. We are not able to accede to this contention because the dispute
raised in the year 1918 related to possession of the fishery itself and was a
dispute ,concerning any water or the boundaries thereof in the language of
section 145, Criminal Procedure Code. Sub-section 2 of section 145 provides
that for the purpose of the section the expression "land or water"
includes fisheries. It 449 was then argued that in any case the benefit of the
order made under section 145, Criminal Procedure Code, could only be taken by
the persons in whose favour that order was made and that it could not operate
for the benefit of all the 846 fishermen represented by the eighteen defendants
or in favour of all fishermen who would come to reside in these nine villages
in times to come. In our opinion, this contention has force and the High Court
was in error in holding otherwise. There is no evidence whatsoever to show that
besides the twelve persons mentioned as second party in the section 145,
Criminal Procedure Code, proceedings who else was represented by them and we
are therefore bound to hold that the benefit of that order can only be given to
those defendants who are represented by those twelve persons. The learned counsel
for the appellant gave us a list of the persons who were parties in section 145
proceedings and of those out of the defendants who stand in their shoes.
According to this list, defendants 1, 2, 3,
5, 6, 7, 9 and 12 are the persons who themselves or through their predecessors
in interest were parties in the former case and are entitled to the benefit of
the result of those proceedings.
All the other defendants, whether impleaded
personally in this suit or in a representative capacity, or those whom they
represent, are not entitled to take advantage of those proceedings. The result
therefore is that the defendants above mentioned only are entitled to remain in
possession of the fishery on payment of a rent of Rs. 135-7-0 per annum till it
is enhanced in due course of law or for good cause they lose their right to
remain in possession of the fishery. In an earlier litigation it has been
decided that the right to possession of the fishery for fishing during Hilsa
season is not assignable or transferable, it however can be enjoyed by the
heirs and successors.
The contention that there has been a change
in the course of the river and that the fishery now in dispute is not the same
fishery which was in dispute in the proceedings of 1918 cannot be sustained. We
see no reason to differ from the view of the High Court 450 that the change in
the course of the river has not in any way affected the defendants' possession,
as the channels, whether old or new, which comprise the Madhurdia or Charkhati
fishery form one connected sheet of water. It is well settled that the fish
follow the course of the river and the fishermen follow the fish.
It was then argued that an exclusive right of
fishing could not be acquired in respect of a particular kind of fish and during
any particular season. This argument is not tenable in view of section 145,
Criminal Procedure Code, proceedings. Moreover an exclusive right of fishing in
a given place means that no other person has a coextensive right with the
claimant of the right. The mere fact that some other person has a right to a
particular class of fish in the fishery or that another person is entitled to
fish at a certain time of the year does not destroy the right of exclusive
fishing in any manner (Vide Halsbury's Laws of England, Hailsham Edn., Vol. 15,
para. 59).
The result is that the appeal is allowed
partially, the decree of the High Court is modified and the plaintiff's suit
for a declaration and injunction is decreed as follows:-(i) It is declared that
the plaintiff is entitled to fish in the disputed fishery except during the
Hilsa season (Margasir to Baisakh) during which season defendants 1, 2, 3, 5,
6, 7, 9 and 12 have an exclusive right of fishing in the fishery in respect to
Hilsa fish which right they can exercise either personally or with the help of
other fishermen, on payment of a rent of Rs. 135-7-0 per year till it is
enhanced in due course of law or for good cause they lose their right to remain
in possession of the fishery;
(ii) The defendants are restrained from
interfering with his right of fishing during the months during which the
defendants named above have not the exclusive right of fishing;
(ii) That defendants other than defendants
1,2, 3, 5, 6, 7, 9 and 12 have no right of any kind whatsoever 451 in this
fishery and cannot interfere with the plaintiff's right. In the circumstances
of the case we will make no order as to costs of the appeal.
Appeal allowed in part.
Agent for the appellants: P. Varma.
Agent for the respondents: R.C. Prasad.
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