Raja Braja Sundar Deb v. Moni Behara and Others

Fisheries-Fisherm;n of particular villages allowed to fish for .several years by zemindar-Acqu1stion of right to fish-Presump-Jion of lost grant-Prescription-Adverse possession-Proceedings .under s. 145, Cr. P. C., effect of.

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 ascretainable g(ant~es.

The doctrine of lost grant originated as a technical device to enable title to be made hy 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 ~victed therefrom in due course of law and forbidding all disturbance of such possession until such eviction, and no steps were taken by the zcmindars 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} 45, the order of the Magistrate had become final and they were entit-led 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 righ~ The mere fact that some other person has a right to a parncular class of fish in the fishery or that another person is

1951 entitled to fish at a certain, time of the year docs not destroy the

right of exclusive fishing in any manner &jaBr41a Sumlar Deb C1VIL APPELLATE JuRISDICTION : Civil Appeal No. 42

v.

Moni Beluzra of 1948.

and Others.

Appeal against the judgment and decree dated the 21st April, 1943, of the High Court of Judicature at Patna (Faz! 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 appel-lant.

B. N. Das (Sir Kant Mahanti, with him) for the respondents.

1951, March 27. The Judgment of the Court was delivered by Mahajan]. MAHAJAN J.-The dispute in this appeal is between

the fishermen residing in nine villages of Killa 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 shares 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 die 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 appe:il 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 defendants preferred an appeal to the High Court and 1951 it was partially allowed. The decree ·of the trial Judge Raja Broja in favour of the' plaintiff was modified and it was held Sundar Deb v. that the defendants had exclusive rights as· tenants at Mani Belwra will to . fish in this fishery during the Hilsa season and Others. (Margasir to Baisakh) and that the plaintiff was not Mahajan]. entitled to a declaration or an injunction in respect of that period. The plaintiff thereupon obt;Uned leave to appeal to His Majesty in Council and that appeal is now before us for decision.

It was alleged in the pl:iint that the proprietors of Marichpur zamindari are the exclusive owners . of the fishery in question and have all along been exerc1smg their right of catching fish in the same sometimes by employing fishermen and 5ometimes 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 ~d fishery, nor have they anv right to it, that in the yea.r 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 ~iver block; Risilo and Husgarh. :Prayer was also made f~r the grant of a perpetual injunction restraining the defendants from 1951 fishing in the above fishery and in the above mention-Raja Brqja ed blocks and for the award of a sum of money by way Sundar Deb of damages and on account of price of Ii.sh.

v.

Mani Behara The defendants contested the allegations made in and Othns.

the plaint and asserted thai: the fishermen of Killa Mahqjan]. Marichpur including the principal defendants and

their ancestors, about 846 persons in all, have all along remained in undisturbed actual physical posses-sion 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 plcadi!lgs of the parties the trial Judge framed as many as nine issues, the material ones being issues 6 an.d 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 hdd that the defend-ants neither in their personal nor in their represent-ative 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 Judgi:: that the defendants did not claim the right to catch all the Ii.sh found in the fishery but that they had confined their claim in respect to Hilsa Ii.sh only during the Hilsa season between the months of Margasir and Baisakh (November to April) and that as regards the other varieties of Ii.sh found in these waters during the rest of the year they did not assert any right to catch Ii.sh. He also observed that the defendants did not deny that the plainrilf was the owner· of the zamindari and as such owner of the soil and of the waters of the fishery, hut that they claimed a subordinate right, i.e., the right of fishing in ~e waters belonging to the plaintiff and his co-sharers 1951 during the Hilsa season to the exclusion of the plaintiff RajaBrda and his co-sharers. In view of these contentions the Sundor Deb v. onus was laid on the defendants to prove their per-Mani Bthara manent right of fishing in these waters by grant, and Others. custom, prescription or adverse possession and it was Mahajan] 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 per-manent 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 funher said that there was no cenainty 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 defend-ants' 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 exceotin~ the question of custom were canvassed by the defend-ants before the High Court. The High Court in a judgment, by no means clear or satisfact.ory, reached the conclusion that the defendants since the time of their predecessors had all along been fishinrr in the disputed fishery as of right under a lost ~rant and that the plaintiff'-s story that he had been in enjov-ment of the fishery was not true and that the defend-ants' right to fish in the disputed fisherv was esta-blished. One would have thought that in view of this finding the plaintiff's suit would have been dismissed 1951 but this did not happen. The High Court proceeded RojaBrq.ia to find that though from the evidence it appeared that Sund"' v. D,b the right was being exercised by the defendants or Mani Be!wro their predecessors from a very long time, that is to say, and Others from the year 1842, yet there . was no evidence to Mahajan]. iutisfy 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 proceed-ings under section 145, Criminal Procedure Code, it was found that he not having challenged that order within the prescribed period, his right to khas posses-sion 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 subsist-ed as it · was never denied. It was funher held that the plaintiff's right to khas possession of this fishery was also extinguished by operation of anicle 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 Coun reached the somewhat strange conclu-sion that the defendants acquired by adverse posses-sion a mere tenancy at will and that it could be deter-mined 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 determin-ing 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 the river· was identical and the channels, whether old 1951 or new, which comprise the Madhurdia or Charikhati RajaBraia fishery, have always formed one. connected sheet of Surular D•b v. water and that fishing in different parts of such a con-Moni Behara nected sheet of water comprised in the same fishery can and Othn's. hardly be said to be a separate act of aggression MahaianJ. 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 defend-ants 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.

A~st the decision of the . Hig1i Court no appeal was preferred by the defendants though tliey had only· been found to be in possession _l)f the fishery in the status of mere tenants at will. The plaintiff challenged this decision and contested the finding that the defend-ants we~e 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 fisher-men to and from these villages. It was argued that the High Court has erroneously found that the defend-ants 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 to fish in these waters by a number of landlords 1951 on payment of rent but that the prdent defendants were Ra_;a Broja not the descendants of those fishermen who were occa-Sundar Deb sionally granted leave to fish and that those isolated

v. acts of letting the fishery were not connected with one Moni Behara and Others. another and from these it could not be inferred that Mo.haj,,,n]. 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 Auctuat-ing 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 pro-visions 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 tho5e 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 tenants an exclusive right to fish in the fishery and 1951 were entitled to remain in enjoyment of it on payment RajaBf!ia of a fixed rent of Rs. 135-7-0 in perpetuity, that the Sundar Dlb v. plaintiff's right of fishing in the fishery during Hilsa Marti.Btluwa season had become extinguished by operation of arti-and Othm cle 47 and article 144 of the Indian Limitation Act. Mahqjaa J, 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 ihe 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. B5-7-0, and this was being realised from Hari Behera and Brundu Anukul Singh, two fishermen. It is not clear from this docu-ment 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 land-lords. It was stated therein that these fishermen will catch fish from these waters according to former cus-tom and will pay "machidia sarbara" of Rs. 135 in accordance with the instalments. There is no indi-cation 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 1951 that the rent payable was not liable to enhance-Raja BroJa ent in the future. It was contended on behalf of the .Sundar Deb defendants that these two persons executed the kabuli-

v. yat in a representative capacity and on behalf of all the ..Mani Behara and Others. fishermen who originally resided in four villages Mahajan]. 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. \V. 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 know-ledge 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 repre-sentative capacity by these two -persons and on behalf of all the persons interested in the presenc controversy. There is no evidence on the record to prove the .state of affairs of this fishery between the years 1845 and 1873. Reliance . was placed bv 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 instalment of fishery rent of "Charkbati" 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 Masudan-nisa and others, co-share.rs of five anna four pies in the zamindari in favour of Hari Behera and Ananta Hehera 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 co-sharers to these two persons and it is not possible to say that these payments were made towards a fixed rent of Rs. 135-7-0 payable for the whole fishery. 1951 The state of affairs of this fishery between 1876 to 1893 RajaBraja remains shrouded in mystery as no evidence for that Sundar Deb v. period has been filed on the record. On the 1st May, Mani Beharac 1894, Mohan Bhagat's descendant gave a receipt to and Othns. Pandab Behera and Phagu Behera for Rs. 10, which Mahajan J 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. 135-7-0 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 Bchera of village Alsahi was given on the 22nd October, 1899. The receipt relates to payment of tw:elv.e 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 th~ 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 w:as 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. men.

tione<l in the jamabandi of 1842 as P,?yable 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 reli!!d upon undoubt-edly exists, but on that basis it is not possible to draw the inference suggested as such an inference . would be

1951 of a conjectural nature. All these receipts are consist· liq/a Jhqja cnt with the contention of the plaintiff that from time -Swuiar 1"6 to time different co-sharers permitted different fisher-

v. men to fish in the· fishery on payment of a certain Mofti &hara ""'1 Otiw1. rental. A receipt similar to the one above mentioned Ma/14ian]. 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 i~ the rent is more than mentioned therein, the further amourtt due would be made good. Same remarks arc 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 co-sharer 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, aescribed as tenants and residing in different villages of the zamin-dari for a sum of Rs. 5-13-0 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.

By a registered deed dated 24th May, 1914, the 1951 plaintiff for the first time acquired an eight pie interest &ija Bri ·a in the zamindari in the name of Smt. Mahisthali Sundar 'Eb v. Patamahadei, his wife, from one Balaram Das Bhagat, Moni Be/UJra .a descendant of Mohan Bhagat. Subsequently he in and Othlrs his own name and sometimes in the name of the Rani Mahajan],_ purchased some further shares in the zarnindari 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 coin-cides 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 s111urce 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 bet-ween the landlords and the fishermen and there was an apprehension of a breach of pc;tce 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 land-lords of Killa Marichpur and twelve fishermen in regard to the possession of Charikhati fisheries in Debi river. The Magistrate on receipt of the police repotl issued notice to the parties for the 19th February, 1918, and decided the case on. the 10th June, 1918.

From his order it appears that notice was given to all concerned and they were irivited 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 1951 of Aul who had then eight pie interest in the zamindari 114fer· Brqja as benamidar of her husband led evidence to establish Sund"' Deb that she was in possession of the fishery through

v.

MOllilhhara fishermen employed by her agent. Ram Behera, and Olhtrt. Hrushi Behera and other fishermen of the second · party,