dedol-hf/india-case-legal-rag huggingface dataset:
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 contend-
ed  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  zamin-
dars  as income of the jalker and from this entry an  infer-
ence 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  consist-
ent  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  re-
ceipt  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  re-
ceipt  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,
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 conclu-
sion  in regard to the rights of the parties. They are  con-
sistent 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 tenan-
cy  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  za-
mindari 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 Magis-
trate  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 therefrom  in  due
course of law and forbidding all disturbance of such posses-
sion  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 plain-
tiff  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  fisher-
men 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  exclu-
sive 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  land-
lords,  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 discov-
ered  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  evi-
dence 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  posses-
sion  of the disputed fishery under a lost grant. This  doc-
trine  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  Rad-
cliffe  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  incorpo-
rating  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  defend-
ants-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 inhab-
itant.
    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 estab-
lish 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 exclu-
sive  possession of the disputed fishery and that the  land-
lords had no right to disturb their possession and they were
directed to bring a suit to establish their right to posses-
sion. 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  succes-
sors 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 ,concern-
ing  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  con-
tention 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 predeces-
sors  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  fish-
ery.  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  Chark-
hati  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 fisher-
men, 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.
PETITIONER:
RAM DHAN LAL AND OTHERS.
        Vs.
RESPONDENT:
RADHE SHAM AND OTHERS
DATE OF JUDGMENT:
19/03/1951
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
FAZAL ALI, SAIYID
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  210            1951 SCR  370
ACT:
    Bengal  Alluvion and Diluvion Regulation (XI  of  1825),
ss.  2, 4 --Custom of dhar  dhura-Incidents--River  changing
course suddenly--River flowing entirely outside the villages
which    it   divided-Whether   custom   applies--Onus    of
proof--Reasonableness  of custom Regulation  XI--Revival  of
dhar dhura rights.
HEADNOTE:
    The meaning of the custom of dhar dhura is that the deep
stream or channel of a river is to be regarded, irrespective
of its changes, as the constant boundary between two or more
villages, and such a custom is expressly recognised in s.  2
of Regulation XI of 1825.
    Whether  such  custom applies even to  cases  of  sudden
changes in the course of a stream or only to gradual alluvi-
al  action is a matter which has to be determined  upon  the
evidence adduced in each case.  The onus of proving that the
custom  applies to sudden changes also is on the person  who
sets  it up, but such custom is not unreasonable and can  be
established like any other
371
custom  by  cogent evidence.  (Their  Lordships  upheld  the
finding  of the High Court that under the custom  prevailing
in the villages in question it was applicable also to  cases
of the stream suddenly altering its course.)
    As the custom of dhar dhura implies that the deep stream
of the river irrespective of the changes in its course,  is.
to be regarded as a fixed boundary line between two or  more
village.  s,  it is necessary for the  application  of  this
custom  that the main stream of the river must  flow  within
the  limits  of these villages. When the river  changes  its
course  so  widely that it oversteps the boundaries  of  the
villages concerned and ceases to divide these villages,  the
rights of the riparian properties can be determined only  in
accordance with the provisions of Regulation XI of 1825.
    Obiter.  Though a riparian owner  cannot  claim a   land
under  the custom of dhar dhura so long as the  river  flows
outside  the limits of the villages  concerned,  his  rights
under  the  custom would revive as soon as the  river  again
flows within the villages.