Tulsi
Ram & Ors Vs. Mathura Sagar Pan Tatha Krishi & Anr
[2002] Insc 465 (12
November 2002)
Umesh
C. Banerjee & Y.K. Sabharwal. Banerjee, J.
Appeal (civil) 645 of 1981
Since
the decision of this Court in Braja Sundar (Raja Braja Sundar Deb v. Moni Behara
& Ors. : 1951 SCR 431), the legal phenomena pertaining to the doctrine of
'lost grant' seems to be well settled. This Court in Braja Sundar (supra) upon
reliance on the observations of Lord Radcliffe in Laxmidhar Misra v. Rangalal
(AIR (37) 1950 PC 56) stated as below :
"..
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.
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."
This Court further in Braja Sundar (supra) upon reference to a Bench decision
of the Calcutta High Court in Asrabulla v. Kiamatulla (AIR 1937 Cal. 245) was
pleased to observe that no 'lost grant' can be presumed in favour of a
fluctuating and unascertained body of persons.
It
would be convenient at this stage, however, to note in slightly more greater
detail the observations of Lord Radcliffe in Laxmidhar Misra (supra) as below :
"6.
The doctrine of lost grant gives no firmer basis for the appellants' case. This
doctrine originated as a technical device to enable title to be made by
prescription despite the impossibility of proving "immemorial user".
By English common law prescription had to run from time immemorial which by
convention began in the year 1189. If it was possible to demonstrate that the user
in question, though ancient, originated since 1189 the proof of title by the
prescription of immemorial user failed. To get round this difficulty, Judges
allowed or even encouraged juries to find that the right in question, though
less ancient than 1189, originated in a lost grant since that date. Thus the
right acquired the necessary legal origin. But such a right just as much as an
easement, had to be attached to and to descend with an estate : moreover, 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 under
English law. 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 are no admissible grantees.
In fact the doctrine of lost grant has no application to such rights as those
of the inhabitants of a particular locality to continue an ancient and
established user of some piece of land." Turning attention on to the fact
situation of the matter in issue be it noted that the present litigation has
been between the Barai community being the proprietors of certain tanks in the
village known as Mathurasagar and the fishing community called the Dhimars of Ramtek,
which happen to be represented by Tulsi Ram & Ors., being the appellants
herein. It is not in dispute that there was a group of five tanks in this
village, water from which was drawn for the purpose of irrigation by the Barais
who had betel leaves plantations. These tanks at one time presumably were also
a good fishing ground and fish used to be caught and collected by the fishermen
community in the neighbourhood. The tanks are artificial and as the record goes
to show and suggest, were privately owned. As both the communities were
interested in the maintenance of the tanks and water therein for their benefit,
some arrangements seem to have been arrived at and the same came to be recorded
and noted in a document popularly described as Wajib-ul-arz having statutory
recognition under the C.P. Land Revenue Act. Significantly, both parties to the
litigation presently under consideration admit that arrangement which prevailed
between them since a long time, first made its appearance in the Wajib-ul-arz
in the year 1862 at the time of settlement of the year 1862-63. This continued
in the next settlement of the year 1892- 93. Then again in the third settlement
year 1914-15 and subsequently also in 1942-43.
On the
factual score it further appears that in the year 1951, the Madhya Pradesh
Abolition of Proprietary Rights Act came into force and the rights of Malguzars-proprietors
in these lands were extinguished. In some cases, however, as provided under the
Act certain rights were conferred upon the Malguzars and it is not in dispute
that so far as the present tanks and lands are concerned, the tanks were
treated as of the ownership of Barais.
In the
year 1954, the present plaintiffs commenced a suit being Civil Suit No.10A/54
praying for an injunction to restrain the defendants being the Appellants
herein from catching fish in the said tanks and also for damages. When that
suit reached the stage of second appeal in the High Court being Second Appeal
No.398 of 1959, it was allowed to be withdrawn with liberty to file a fresh
suit. The present suit is a sequel to the suit which was withdrawn and was
filed on 9.8.1963. Leave under Order 1 Rule 8 Civil Procedure Code was obtained
and the suit thereafter was proceeded with and contested in a representative
capacity - the plaintiffs being the Barais and the defendants, the Dhimars or
fishermen of Ramtek.
On a
perusal of the pleadings it appears that the defendants (presently the
appellants herein) have been rather candid with their defence to the effect
that question of there being any permission for the catch and collection of
fish or its removal, would not arise since such activities were within their
own rights by reason of the grant. It is on this score, the High Court in the
second appeal commented to the effect : "It is significant to note that
the written statement does not show or claim that the right to catch fish was
claimed only on behalf of some Dhimars or some Dhimar family only and not on
behalf of all Dhimars of Ramtek." The suit however, came to be decided in favour
of the defendants upholding the right in terms of the grant.
Aggrieved
by the decision, the plaintiffs came in appeal before the District Judge, Nagpur in Civil Appeal No.308/65 and the
learned District Judge, however, also was pleased to dismiss the appeal and
affirmed the judgment and decree passed by the learned trial Judge. The first
appellate Court held that the right to catch and carry away fish from the tanks
was "profit-a-prendre" and that "defendants and their ancestors
have been enjoying the right to catch fish in the suit tanks
uninterruptedly." In fine, the first appellate Court stated : "The
right of fishing in the suit tanks is being enjoyed by the Dhimars
uninterruptedly for over 100 years and in view of long uninterrupted user, it
could be presumed that the origin of the right of the Defendant was in a grant
which cannot now be traced." In other words, according to the learned
Appellate Judge, the nature of the right was the right to share in the profit-a-prendre
which was in an immovable property and was a permanent grant made in favour of Dhimars.
There was, therefore, no question of any licence being granted by the
plaintiffs and the suit, therefore, in his opinion was rightly dismissed.
Accordingly,
the appeal was dismissed and the judgment and decree passed by the learned
trial Judge was confirmed.
The
matter, however, did not rest there and the plaintiffs moved the High Court in
second appeal, wherein the rights of the defendants stand expressly negatived
and hence the appeal before this Court under Article 136 of the Constitution
upon the grant of leave.
Before
proceeding with the matter further the conclusion as recorded by the High Court
in paragraph 64 of the impugned judgment ought to be noticed.
"The
result, therefore, is that the defendants Dhimars of Ramtek cannot claim this
right to fish in the Mathurasagar tank either by way of a lost grant or by way
of custom. A lost grant of this kind cannot be presumed as existing or could
have been made in favour of an indefinite and indeterminate body of persons
being inhabitants of a particular place capable of increase and decrease. The
right cannot also be considered and recognised, for such a right would be
unreasonable, being destructive of the subject matter itself if exercised, and
if could be exercised as permitted and to that extent. If an indefinite body of
person, and if a large number of persons were authorised to exercise such a
right and if there was no restriction of whatever kind, then a customary right
which could produce such a result must be deemed to be unreasonable, and
therefore, unenforceable in a court of law. There has been no claim of this
right to fish either as a lease or as an easement. The observation above and a
reference to the aforesaid authorities would clearly also go to show that such
a right cannot be claimed either by way of easement or as a tenancy right much
less by an indeterminate body of persons belonging to a certain community or
from a certain area. Consequently, the Second Appeal must succeed.
The
decision of the Courts below is set aside and the plaintiffs suit decreed with
costs." Mr. Uday Umesh Lalit, Advocate, appearing in support of the appeal
have been rather vocal as regards the factum of Wajib-ul- arz, which in fact recognises
the right of the defendant (Appellants herein) not as a licensee but as a
definite and ascertained body of persons having irrevocable hereditary right
from generation to generations absolutely and upon reference thereon contended that
the effect of such documentary evidence cannot be wiped out or be rendered a
nullity without a declaration to that effect by the Civil Court. It has been
his definite contention that Wajib-ul-arz cannot but be termed to be a record
of rights. Alternatively, it is Mr. Lalit's further submission that at least
the appellants cannot be decried of their right as Haqdars and in the second
alternative Mr. Lalit contended that it is a right based on custom from time
immemorial as such question of interference by the High Court in second appeal
would not arise. Lastly, Mr. Lalit contended that it is not an unascertained
body but a class determinate.
We
shall deal with the submissions presently, but before so doing, the
observations of the Judicial Committee of Privy Council in Bholanath Nundi
& Ors. v. Midnapore Zemindary Company Ltd. & Ors. (LR (31) Indian
Appeals 75) on which very strong reliance has been placed by Mr. Lalit, ought
to be noticed. Lord Macnaghten, speaking for the Bench stated :
"The
case, as presented by the plaintiffs, on the face of it and in substance, seems
simple enough. It appears to their Lordships that on proof of the fact of
enjoyment from time immemorial there could be no difficulty in the way of the
Court finding a legal origin for the right claimed. Unfortunately, however,
both in the Moonsiff's Court and in the Court of the Subordinate Judge, the
question was overlaid, and in some measure obscured, by copious reference to
English authorities, and by the application of principles of doctrines, more or
less refined, founded on legal conceptions not altogether in harmony with
Eastern notions. The result is that, although the decree appear to be justified
by the main facts, which both the lower Courts held to be established, it is
impossible to say that the judgments delivered are entirely satisfactory."
It is on this judgment, Mr. Lalit appearing in support of the appeal, has been
rather emphatic on to his submission that the right did not exist in an
unascertained family of Dhimars but among certain families of which the
appellants are the representatives and since it was given to a certain number
of persons, question of there being any infraction of any law does not arise
and the same ought to be treated as in the nature of lost grant. The existence
of such a right for such a long period of time for over a century was enjoyed
by the group of Dhimars continuously and uninterruptedly and the Barais also
did obtain the benefit of cash payment in lieu of half the catch and this cash
benefit used to be spent for the development and maintenance of tanks rather
than individual enjoyment therefrom. Mr. Lalit further contended that a Khasra
record available with the State depict this long and uninterrupted user of the
tanks to the exclusion of all others and question of dispossession from the
same would not arise : the revenue record is a record of right capable of being
enforced and enjoyed by a specified group of people though unascertained. By
reason of the uninterrupted user of the tank, a right stands conferred on to
the appellants herein as a customary right and thus enforceable.
In the
judgment impugned the issue pertaining to the Dhimars of Ramtek and the
particular connotation to be attributed thereon has been dealt with in the
manner set out hereinbelow.
The
High Court in the judgment impugned upon consideration of the submissions as
recorded in the plaint as well as the written submissions stated as below :
"In
the face of the aforesaid statement in the written statement understood in the
context of the plaint laid, which refers to the defendants as All Dhimars of Ramtek",
I do not think it possible for Mr. Padhye to contend that the right was claimed
by the named defendants only, and not by all Dhimars of Ramtek or by these
defendants and not as representing all the Dhimars of Ramtek. As I pointed out,
the defendants did not dispute in their written statement that they cannot be
representing all the Dhimars of Ramtek as their interest do not coincide. It is
also not contended that some Dhimars from Ramtek are excluded." The High
Court thereafter, however, went on to observe that in the very nature of things
such a right would be a matter of contract and would not be classified. As a
customary right, the same can never be claimed since it is a right in respect
of a contract between the Barais and Dhimars relating to certain property,
entered into between the parties at that point of time and it is on this score
further the High Court negated the submission that the right existed or was
granted to only some of the Dhimars from the village. The High Court further observed
:
"..
That this was continued and was to run from the period of one settlement to the
other. Such a concept necessarily presupposes a contract being renewed from
time to time and the rights of the contracting parties in accordance with the
terms of the contract itself and lapsing after the period of contract.
No
such suggestion appears at any time anywhere in the entire conduct and trial of
this suit. One must, therefore, proceed on the footing, as was done in the
Courts below that the dispute between the parties was in respect of rights
which were claimed by one community against the proprietors of the tanks
represented by some members of other community. It was in that sense a representative
suit against the Dhimars brought by one of the numerous holders of interest in
the tanks of the Barais in a representative capacity. That disposes of the
first contention which was raised by Mr. Padhye." Incidentally, be it
noted that the first appellate court came to a conclusion that even if a right
cannot be accepted as can be acquired by custom in a fluctuating body of
persons, it cannot be said that the villagers of a particular community in a
village can be regarded as a fluctuating body of persons. The High Court
negated that submission and we do feel it expedient to record our concurrence
therewith since there seems to be ample justification therefor. The decision of
the Calcutta High Court in Asrabulla (supra), which stands subsequently
approved by this Court in Braja Sundar (supra), the law seems to be well
settled that if a right cannot be conferred, no grant can be presumed in favour
of an indefinite body of persons and members of a particular community though
of a village in such a body of persons.
This
Court in Bihar v. S.G. Bose (1968 (1) SCR 313)
stated:
"A
claim in the nature of a profit-a-prendre operating in favour of an
indeterminate class of persons and arising out of a local custom may be held
enforceable only if it satisfies the tests of a valid custom. A custom is a
usage by virtue of which a class of persons belonging to a defined section in a
locality are entitled to exercise specific rights against certain other persons
or property in the same locality. To the extent to which it is inconsistent
with the general law, undoubtedly the custom prevails. But to be valid, a
custom must be ancient, certain and reasonable, and being in derogation of the
general rules of law must be construed strictly. A right in the nature of a profit-a-
prendre in the exercise of which the residents of locality are entitled to
excavate stones for trade purposes would ex facie be unreasonable because the
exercise of such a right ordinarily tends to the complete destruction of the
subject-matter of the profit. It is said in Halsbury's Laws of England, 3rd Edn.
Vol.11, Art. 324 at p. 173 :
"If
a right in alieno solo amounts to a profit-a-prendre it cannot be claimed under
an alleged custom; for no profit-a-prendre and therefore no right of common can
be claimed by custom except in certain mining localities; nor can there be a
right to a profit- a-prendre in an undefined and fluctuating body of
persons." The view as appears stands supported by a considerable body of
authority in a long catena of cases.
In
Lord Rivers v. Adams (L.R. 3 Ex. Div. 361) it was held that the right claimed
by inhabitants of a parish to cut and carry away for use as fuel in their own
houses faggots or haskets of the under-wood growing upon a common belonging to
the lord of the manor is a right to a profit-a- prendre in the soil of another
: such a right cannot exist by custom prescription, or grant, unless it be a
Crown grant which incorporates the inhabitants. The House of Lords in Harris
and Another v. Earl of Chesterfield and Another (1911 A.C. 623) held that a
prescription in a que estate for a profit-a-prendre in alieno solo without
stint and for commercial purposes is unknown to the law. In the case of Harris
and Another (1911 A.C. 623) the freeholders in parishes adjoining the river Wye
were in the habit of fishing a non-tidal portion of the river for centuries,
openly, continuously, as of right and without interruption, not merely for
sport or pleasure, but commercially in order to sell the fish and make a living
by it. The riparian proprietors claiming to be owners of the bed of the river
brought an action of trespass against the freeholders for fishing. It was held
by a majority of the House of Lords that the legal origin for the right claimed
by the freeholders could not be presumed and that the action by the plaintiffs
was maintainable.
Mr. Bobde,
however, contradicted the basic submission of Mr. Lalit and contended :
A body
of persons, which is indeterminate and fluctuating by reason of births and
deaths, influxes and effluxes, can neither be the recipients of a grant nor
claim a customary right to enter upon and take away profit-a-prendere in alieno
solo (Latin for on another's land and in French the equivalent term is 'en autre
soile').
Mr. Bobde
further made a sharp distinction between a customary right to profit-a-prendere
for commercial purposes from that of home use or sport, and the same is unknown
to law.
In
India, Mr. Bobde contended further that under the Easement Act, 1882,
prescription of easements is permissible under Section 15. An easement may
include profit-a-prendre, but not profit-a- prendre in gross i.e. where there
is no dominant heritage for which there is corresponding servient heritage. The
profit-a-prendre in gross in English law flows from the English common law and
the Prescriptions Act, 1832. As the customary rights to other profit- a-prendre
or other easements in India, it will be necessary to prove a legal and valid
local custom and to be a legal and valid custom in relation to profit-a-prendre,
a custom alleged must above all, be reasonable. Whether the exercise of a right
claimed is by a body of persons which can grow or change indefinitely and which
is not capable of having a succession in any reasonable sense of the term, or
where the exercise of the right tends to destroy the subject matter of the
right, the alleged custom is ex-facie unreasonable and cannot be sustained in
law. It is in this context that Mr. Bobde has taken recourse to Section 47 of
the Abolition Act and Section 225 of the Land Revenue Code and stated that the
same are the legal filters through which an alleged practice/contract must pass
to be even claimed as a custom. Once a claim is made, scrutinised and rejected
by the competent authority and no suit is filed by the aggrieved party, it is
not open to that party to allege and prove the custom in a Court of Law as a defence
to a suit.
It was
next contended that the vast and vital difference between a suit and a defence,
in the context of Section 225 of the Land Revenue Code, is that a suit by an
aggrieved party can reopen the question closed by the order under the statute.
Once limitation for suit expires, the extinguishment of remedy extinguishes the
right ubi jus ibi remedium and the other party is entitled to act on the basis
of the order as a final and conclusive decision on the existence or otherwise
of the alleged custom.
When
the successful party goes to Court to injunct or evict a trespasser, it is not
open to the Defendants then to reagitate the question whether there was a
customary right.
The
public policy reflected in the post-independence laws cannot be allowed to be
defeated, the policy being that 'rights in or over land' which is a State
subject in Entry 18, List VII, fall within the exclusive domain of the State and
once the State authorities have determined the existence or absence of those
rights, finality must attach to such determination in the public interest and
the interests of justice, submitted Mr. Bobde. The object of the policy also is
to prevent long litigation spanning decades or generations on a subject that is
made the exclusive and final domain of statutes, unless of course the aggrieved
party goes to Court in accordance with Section 225. It is trite law that when a
law says that a thing is to be done in a certain way, it must be done in that
way alone and no other. The Courts' sole function-indeed its "sworn duty
and trust" (De Grey CJ in the Duchess of Kingston's case (1775- 1802) All
E.R. Rep. 623 at 628 C) is to uphold and administer the law and do justice in
accordance therewith.
Mr. Bobde
further contended that the alleged grant was never in favour of individuals. No
such plea was ever raised in the lower Courts which decided the suit and first
appeal. The Courts proceeded on the footing that it was a representative
action. If the Wazib-ul-arz of 1942-43 is construed as showing a grant having
been in favour of the individuals mentioned in Ex.117 (viii), it is plain that
it was not in favour of their families, heirs or descendants in perpetuity, and
must therefore expire with the expiry of individuals mentioned therein. If it
is construed as a grant in favour of, or custom enuring to the benefit of
families, heirs, descendants and all manner of successors or assigns, the body
of persons again becomes fluctuating and thus renders the same incapable of
legal recognition of the grant or claiming a customary right. The exercise of
right destroys the subject matter is clear from the Written Statement. itself
wherein, at p. 142, the Defendants state that they put in seeds of fishes.
Obviously, the fish are caught and consumed or sold for gain. The fishery gets
exhausted. Then it is replenished with fresh seeds to have a new lot of fishes.
It is as though some people claimed the right to come upon another's land, sow
and reap crops repeatedly for eternity. It would leave the owner with merely
the husk of ownership while it would really virtually vest in those who claim such
an absurd right, not as permissive user or activity but as of right, and in the
bargaining process, even have the Barais maintain the tanks for the Dhimars. As
a matter of fact only a licence to fish was granted and the same stands
corroborated by the fact that there was even consideration therefor viz. the
amount that was to be paid by the fishermen. It was used for the maintenance of
the tanks not for the sake of the fishermen but for the purposes of the owners;
for utilizing the tanks for cultivating betel leaves which was and is their
occupation. This was particularly so because the body of Barais was large in
fact, larger than that of Dhimars and it was in their common interest that the
tanks which were the sole source of water for cultivation for the betel leaves
were maintained. For that reason alone, fishing was allowed for a price.
On the
wake of the above discussion, we do not feel it inclined to interfere with the
order of the High Court. The appeal, therefore, fails and is dismissed. No
costs.
Re CA
No.645 of 1981 Admittedly, the appellants herein do not deal in fish:
whereas
the Dhimars do deal with the same!! Strict enforcement of individual rights
will create a situation not only of further stiffening of attitude of each of
the parties towards the other but this may lead to economic instability which
the Dhimars may suffer: It is on this score Mr. Bobde in his usual fairness
suggested that some such orders should be passed so as to allow the parties to
co-exist and avoid economic deprivation. We place on record our appreciation
therefore and thus direct that the fishing rights be auctioned and the rights
thereof be conferred on to the highest bidder.
It is
further ordered that till the auction as directed above, takes place, mesne
profits as determined by this Court shall continue to be paid.
The
appeal thus stand disposed of as above. No costs.
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