dedol-hf/india-case-legal-rag huggingface dataset:
sive;it is subject to the supervision by this Court.  In the
matter of fundamental rights, the Supreme Court watches  and
guards  the  rights guaranteed by the  Constitution  and  in
exercising  its functions it has the power to set  aside  an
Act of the Legislature if it is in violation of the freedoms
guaranteed by the Constitution.  We are therefore of opinion
98
766
that the impugned statute does not stand the test of reason-
ableness and is therefore void.
The  result therefore is that the orders issued  by  the
Deputy  Commissioner  on 13th June 1950 and  26th  September
1950  are  void, inoperative and ineffective.  We  therefore
direct  the respondents not to enforce the  provisions  con-
tained  in section 4 of the Act against the  petitioners  in
any  manner  whatsoever.  The petitioners  will  have  their
costs of these proceedings in the two petitions.
                       Petitions allowed.
      Agent for the petitioners in Nos. 78 and 79:
Rajinder  Narain.
      Agent for the respondent in Nos. 78 and 79:
          P.A. Mehta.
PETITIONER:
RAJA BRAJA SUNDAR DEB
        Vs.
RESPONDENT:
MONI BEHARA AND OTHERS
DATE OF JUDGMENT:
27/03/1951
BENCH:
MAHAJAN, MEHR CHAND
BENCH:
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  fisher-
men  were in possession of the disputed fishery and  he  di-
rected  the  issue of an order  declaring  their  possession
until evicted therefrom 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  fisher-
men  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.
JUDGMENT:
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  respond-
ents.
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  ''Madhur-
dia,  "Marichpurdia"  and  "Maladia" appertain to  this  es-
tate.   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  re-
spect 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  Bai-
sakh) and that the plaintiff was not entitled to a  declara-
tion or an injunction in respect of that period. The  plain-
tiff  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  fisher-
men  and sometimes by letting out the fishery to them,  that
the plaintiff has ever since his acquisition of the  zamind-
ari interest been the owner in khas possession of the  fish-
ery 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  wrong-
fully 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  por-
tion  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  undis-
turbed  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 posses-
sion  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 capac-
ity  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  fluc-
tuating   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  de-
fendants'  right to fish in the disputed fishery was  estab-
lished.  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 proprie-
tary 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 plain-
tiff 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 proceed-
ings  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  pos-
session  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  pre-
ferred by the defendants though they had only been found  to
be  in possession of the fishery in the status of mere  ten-
ants  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  extin-
guished  by operation of articles 47 and 144 of the  Limita-
tion 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  land-
lords
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  defend-
ants 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 fluctuat-
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 provisions of section 28 of
the  Indian Limitation Act, it was contended that  the  pro-
ceedings  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  settle-
ment,  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 there-
in  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  subse-
quently 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 instalment 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  par-
ties 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  permis-
sion 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
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  de-
fendants' 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,