# &jaBr41a Sumlar Deb v. Moni Beluzra and Others

- **Citation:** [1951] 1 S.C.R. 431
- **Court:** Supreme Court of India
- **Decided:** 1951
- **Case number:** Civil Appeal No. 42 of 1948
- **Bench:** Mehar Chand Mahajan, MuKHERJEA, Chandrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jabr41a-sumlar-deb-v-moni-beluzra-and-others-95
- **Pages:** 21

## Headnote

431
Fisheries-Fisherm;n of particular villages allowed to fish for
.several years by zemindar-Acqu1stion of right to fish-PresumpJion 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 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
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
March 21;
1951
&jaBr41a
Sumlar Deb
v.
Moni Beluzra
and Others.
Mahajan].
432
SUPREME COURT REPORT.S
[1951}
entitled to fish at a certain, time of the year docs not destroy the
right of exclusive fishing in any manner
C1VIL
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 (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 appellant.
B. N. Das (Sir Kant Mahanti, with him)
for the
respondents.
1951, March 27. The
Judgment of the Court was
delivered by
MAHAJAN J.-The dispute in this appeal is between
the
fishermen
residing
in
nine
villages of 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

## Text

_Characters 0–39,518 of 46,022. This is a partial read: ask again with offset=39518 for what follows._

_,
S.C.R.
SUPREME COURT REPORTS
RAJA BRAJA SUNDAR DEB
ti.
MONI BEHARA AND OTHERS
[MEHAR CHAND MAHAJAN, MuKHERJEA and
CHANDRASEKHARA AIYAR JJ.]
431
Fisheries-Fisherm;n of particular villages allowed to fish for
.several years by zemindar-Acqu1stion of right to fish-PresumpJion 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 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
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
March 21;
1951
&jaBr41a
Sumlar Deb
v.
Moni Beluzra
and Others.
Mahajan].
432
SUPREME COURT REPORT.S
[1951}
entitled to fish at a certain, time of the year docs not destroy the
right of exclusive fishing in any manner
C1VIL
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 (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 appellant.
B. N. Das (Sir Kant Mahanti, with him)
for the
respondents.
1951, March 27. The
Judgment of the Court was
delivered by
MAHAJAN J.-The dispute in this appeal is between
the
fishermen
residing
in
nine
villages of 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
S.C.R.
SUPREME COURT REPORTS
433
defendants preferred an appeal to the High Court and
it was partially allowed. The decree ·of the trial Judge
in favour of the' plaintiff was modified and it was held
that the defendants had exclusive rights as· tenants at
will to . fish in this fishery during the Hilsa season
(Margasir to
Baisakh) and that the plaintiff was not
entitled to a declaration or an injunction in respect of
that period. The plaintiff thereupon 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
Raja Broja
Sundar Deb
v.
Mani Belwra
and Others.
Mahajan].
1951
Raja Brqja
Sundar Deb
v.
Mani Behara
and Othns.
Mahqjan].
434
SUPREME COURT REPORTS
[1951}
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 Ii.sh.
The defendants contested the
allegations made in
the plaint and asserted thai: the fishermen of
Killa
Marichpur
including the
principal
defendants
and
their ancestors, about 846 persons
in all,
have
all
along remained in undisturbed actual physical possession of the
fishery
known
as "Charkhatia"
alias
"Madhurdia"
fishery on
a fixed
annual
rental of
Rs. 135-7-0, and have a right to remain in possession
in perpetuity on payment of that rent ; that they have
acquired
this right in all possible ways, i.e., by grant,
custom, adverse possession and easement.
On these 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 defendants neither in their
personal nor in their
representative capacity had any right or title in the fishery in
question
and issued a permanent injunction
against
them from fishing in it. The claim
for damages was
disallowed. It was obserVed
by
the
learned
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
S.C.R.
SUPREME COURT REPORTS
435
waters belonging to the plaintiff and
his
co-sharers
during the Hilsa season to the exclusion of the plaintiff
and his co-sharers.
In view of these contentions
the
onus was laid on the defendants to prove their permanent right of fishing
in
these
waters by
grant,
custom, prescription or adverse possession and it was
held that the defendants failed to discharge the onus
that rested on
them.
Acquisition of the right by
grant, prescription and adverse
possession
was
held
not provable in law in favour of an indeterminate
and
fluctuating body
of
persons.
The claim
for
permanent tenancy in the fishery was negatived on· the
ground that there was no evidence to show that the
tenancy
came
by
descent
to
these
846
persons
from
the persons
who actually
took
it
in the
year
1842,
or
that
it was
obtained
from all
the sixteen
anna
landlords,
or
that
there
was
any fixity of rent. It
was
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 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 exceotin~
the question of custom were canvassed by the defendants 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 enjovment of the fishery was not true and that the
defendants' right
to fish in the disputed
fisherv was established. One would have thought that in view of this
finding the plaintiff's suit would have been dismissed
1951
RajaBrda
Sundor Deb
v.
Mani Bthara
and Others.
Mahajan]
1951
RojaBrq.ia
Sund"' D,b
v.
Mani Be!wro
and Others
Mahajan].
436
SUPREME COURT REPORTS
[1951]
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
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 proceedings under section 145,
Criminal Procedure Code, it
was found that he not having challenged that order
within the prescribed period, his right to khas possession of the disputed fishery except to the extent of five
pice share was extinguished under section 28 of the
Limitation Act but that his proprietary right
subsisted as it · was never denied. It was 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 conclusion that the defendants acquired by adverse
possession a mere tenancy at will and that it could be determined by the entire body of landlords and the plaintiff
being only a co-sharer could not
bring the present suit
in his own behalf and it had not the effect of determining the tenancy and hence
the plaintiff could not be
granted the declaration and the injunction restraining
the defendants from fishing during the Hilsa season.
As regards the point raised by the
plaintiff that by
reason of
the change in the course of the river the
fishery . in. dispute was not the same
regarding
which
an order· was made under section 145 proceedings or in
which the defendants have been exercising their right, it
was held that this contention was without force because
S.C.R.
SUPREME COURT REPORTS
437
the river· was identical and the channels, whether old
or new, which comprise the Madhurdia
or Charikhati
fishery, have always formed one. connected sheet of
water and that fishing in different parts of such a connected sheet of water comprised in the same fishery can
hardly be said
to be a separate act of aggression
so as to disturb
the continuity or extent of adverse
possession and that the fishermen though a fluctuating
body, have unity of interest and possession and could
not be
described
as
several independent trespassers.
As a result of these findings the decree of the trial
Judge was modified and the plaintiff
was
given a
permanent injunction restraining the principal defendants from fishing in the disputed fishery except during
the Hilsa season (Margasir to Baisakh) during which
the defendants were declared to have exclusive right
of fishing.
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 defendants 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 fishermen to and from these
villages. It was argued that
the High Court has erroneously found that the defendants were in
possession of the fishery and were in
enjoyment of the fishing right under a lost grant and
that the plaintiff's
right to khas
possession
of
the
fishery had been extinguished by operation
of articles
47 and 144 of the Limitation Act read with section 28
of the Act. It was contended that from
the evidence
placed on the record the only
correct
conclusion
to
draw was that from time to time some fishermen were
allowed to fish in these waters by a number of landlords
1951
RajaBraia
Surular D•b
v.
Moni Behara .
and Othn's.
MahaianJ.
1951
Ra_;a Broja
Sundar Deb
v.
Moni Behara
and Others.
Mo.haj,,,n].
438
SUPREME COURT REPORTS
[1951]
on payment of rent but that the prdent defendants were
not the descendants of those fishermen who were occasionally granted leave to fish and that those isolated
acts of letting the fishery were not connected with one
another and from these it could not be inferred that
the defendants or their predecessors were in continuous
possession of the
fishery on
payment of a fixed rent
and that the present defendants were mere trespassers
and had no right to fish in the disputed
fishery.
It
was further contended that no title of any kind could
be presumed to exist in the defendants to the fishery
in suit and on the basis of a lost grant as in this case
there was no capable grantee and that even title
by
adverse possession or prescription could not be acquired
by them as they form an indeterminate and
Auctuating body of persons. As regards the
finding
of the
High
Court
that
the plaintiff's suit was barred by
article 47 of the
Limitation Act and his title to khas
• possession was extinguished by operation
of the provisions of section 28 of the Indian Limitation Act, it
was contended that the proceedings that took place in
the year 1918 were wrongly labelled under section 145,
Criminal
Procedure
Code, and that in substance the
order made in 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
S.C.R.
SUPREME COURT REPORTS
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 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 document in what status they were paying this amount and
what was the nature of their tenancy.
Exhibit A is
a kabuliyat of the year 1845 by Brundu Anukul Singh
and Hari Behera in favour of
Babu Mohan Bhagat
and Bibi
Mobarak
Nisa, and it shows that these two
fishermen
took a lease of the fishing right in Devi
river on payment of Rs. 135 as rent, from the landlords.
It was stated therein that these fishermen will
catch fish from these waters according to former custom and will pay "machidia 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
1951
RajaBf!ia
Sundar Dlb
v.
Marti.Btluwa
and Othm
Mahqjaa J,
1951
Raja BroJa
.Sundar Deb
v.
..Mani Behara
and Others.
Mahajan].
440
SUPREME COURT REPORTS
[1951]
that the rent payable
was
not
liable
to enhanceent in the future. It was contended on behalf of the
defendants that these two persons executed the kabuliyat in a representative capacity and on behalf of all the
fishermen who originally
resided
in four
villages
of
Killa
Marichpur and who subsequently
came to
reside in the
nine villages mentioned
in the
plaint.
The only evidence placed on the record in support of
the suggestion and relied upon by the
High Court is
the statement of D. \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 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 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
Masudannisa 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
S.C.R,
SUPREME COURT REPORTS
441
rent of
Rs. 135-7-0
payable for the
whole
fishery.
The state of affairs of this fishery between 1876 to 1893
remains shrouded in mystery as no evidence
for that
period has been filed on the record. On the 1st May,
1894, Mohan
Bhagat's descendant gave
a receipt to
Pandab Behera and Phagu Behera for Rs. 10, which
was to be set off against fishery rent.
It is difficult to
connect this receipt with the other receipts or to treat
it as evidence in .support of the defendants'
case
of a
permanent
tenancy.
Similar
receipts
by
different
co-sharers in favour of different persons
were executed
on the 1st May, 1895, 5th May, 1896, 9th
May, 1897,
and 22nd October, 1899 ; but in' none of those receipts
is any mention made of any fixed rental of Rs. 135-7-0
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 undoubtedly exists, but on that basis it is not possible to draw
the inference suggested as such an inference . would be
1951
RajaBraja
Sundar Deb
v.
Mani Beharac
and Othns.
Mahajan J ..
1951
liq/a Jhqja
-Swuiar 1"6
v.
Mofti &hara
""'1 Otiw1.
Ma/14ian].
442
SUPREME COURT REPORTS
[1951]
of a conjectural nature. All these receipts are consist·
cnt with the contention of the plaintiff that from time
to time different co-sharers permitted
different fishermen to fish in the· fishery on payment of a certain
rental. A receipt similar to the one above mentioned
was also executed on the 5th March, 1906, by certain
co-sharers owning eight pies in the zamindari in favour
of some fishermen, the annual rent ·being Rs. 135-7-0.
The "Remarks Column" states that
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 zamindari 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.
" '
S.C.R.
SUPREME COURT REPORTS
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 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
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
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 between 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 landlords of Killa
Marichpur
and
twelve fishermen in
regard to the possession of Charikhati fisheries in Debi
river. The
Magistrate on receipt of the police 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
&ija Bri ·a
Sundar 'Eb
v.
Moni Be/UJra
and Othlrs •
Mahajan],_
1951
114fer· Brqja
Sund"' Deb
v.
MOllilhhara
and Olhtrt.
Ma!iqjanJ.
444
SUPREME COURT REPORTS
[ 1951)
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
othc1 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
wn also placed before the Magistrate but it was not
acceptea 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
Magistarte found that the
fishermen
(the
second party) were in possession of the disputed fishery
and he directd 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. 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
S.C.R.
SUPREME COURT REPORTS
445
fishery along with them, but it is difficult to ascertain
their nwnber, names and addresses from these proceedings. Evidence has been led on behalf of the plaintiff
to prove that afrer the· determination of these proceeding5 the plaintiff has been deriving income from this
fishery by leasing }}is
right through the
agency of
fishermen of Aul. The High Court has not placed any
reliance on this evidence and, in our opinion, rightly.
It is not possible to believe that after a successful fight
in the criminal court, the fishermen would have allowed
the men of the
Raja or of the Rani to fish in these
waters during the
Hilsa season.
Both parties led oral
evidence to prove that each party exercised exclusive
right of fishing during Hilsa season in the fishery.
We
have been taken
through
the evidence
and
after
examining it, have reached the conclusion that it is of
an unsatisfactory character and valuable rights cannot
be decided on its footing. No steps were taken by the
landlords to question the order of the
Magistrate
within
three
years
from
its date
as
required
by
article 47 of the
Limitation Act.
The landlords, how~
ever, refused
to receive any rent from these persons·
after the termination of the proceedings and they have
been depositing it in court under the provisions of the
Orissa Tenancy Act.
The last purchase by the Raja of Aul of some interest
in the zamindari
was
made
in the year 1935 and
having acquired by this date a substantial interest in
it and having discovered that the fishery was a paying
proposition, he brought this suit in the year 1936 on
the allegations set out above and asserted that since
about three years the defendants
had started disturb..
ing 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 urider section 145, Criminal Procedure Code, he alleged that he had been in possession
of the fishery in spite of the proceedings taken under
that section and that his possession
had
only been
disturbed
recently. The evidence
on this point was
2-62 S. C. India/58
1951
R4fa Br<!fo;
SOllrttlar D11>
v.
M""i lhltllrt1
tl1ld Oth1r1.
Moluija11J.
1951
Riga Br1!i4
Su"'1ar Ih6
SUPREME COURT REPORTS
[l~l]
rejected by the High Court and we sec no reason to
disagree with that finding.
It is now convenient to consider the different points
canvassed before us by the learned counsel appearing
on behalf of the parties. We find it difficult to uphold
the view of the
High Court that the defendants were
in possession of the disputed fishery under a lost g~ant.
This doctrine has no application to the case of inhabitants of particular loc;ilities seeking to establish rights
of user to some piece of land or water. As pointed out
by Lord Radcliffe in Lakshmidhar Misra V. Rangalal ( 1)
the doctrine of lost grant originated
as a
technical
device to enable title to be made by prescription despite the impossibility of proving immemorial user and
that since it originated in grant, its owners, whether
original or by devolution, had to be such persons as
were capable of being the recipients
of a grant, and
that a right exercisable by the inhabitants of a village
from time to time is neither attached to any estate in
land nor is it such a right as is capable of being made
the subject of a grant, there being no admissible
grantees. Reference in this connection may be made
to a Bench decision of the
Calcutta
High Court in
Asrabulla V. Kiamatulla(•) 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. Aft,r
an examination
of a · number of English and Indian cases it was held
that no lost grant could be presumed in favour of a
Buetuating 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 clBux of fishermen to or from
these villages. From the evidence of D. V•!. 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.l.R. 1950 P.C. 56.
(•) A.l.R. 1937 Cal. •45.
S.C.R.
SUPREME COURT REPORTS
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 som~ 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 arc a corporate body and
that being fishermen by profession it has the effect of
incorporating them. We find ourselves unable to sub-
:Scribe to the view of the High Court that the defendants constitute some kind of a unit
simply
because
they are a body having a common interest to fish in
this fishery; unless the defendants-fishermen form a
corporate body, or it is found that a trust was created
for their benefit, such a body of persons could acquire
no right by the doctrine of lost grant. A right to fish
from the fishery based on mere inhabitancy is capable
of an increase almost indefinite and if the right exists
in a body which might increase in number it would
necessarily lead
to the
destruction of
the
subject
matter of the grantt Moreover, there could not be a
valid grant to a body so incapable of succession in any
reasonable sense of the word, so as to confer a right
upon each succeeding inhabitant.
For the reasons given above, the defendants' right to
remain in possession of the fishery on the basis of
::i
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
1951
Raja Braja
Sundar Dt~
v.
Mani Bthara
and Others.
Mahajan J.
1951
Raja BraJa
$uNlar D16
v.
• «ttni Bthara
.JIUi 0th,,,.
-'lfalugan ]_.
448
SUPREME COURT REPORTS
adverse possession or by prescription.
finding can be given in their favour as
does not establish that they have been
formly the same amount of rent .
[1951}
Further, no
the evidence
paying uniThe 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 nqtice to
:ill the landlords
and was brought about by reason of
the action of all of them and binds the full sixteen
a1llla interest in the zamindari. In clear and unambiguous terms the Magistrate declared that the second
party were in
exclusive possession
of the disputed
fishery and that the landlords had no right to disturb
their possession and they were directed to being a suit
to establish their right to possession. This they failed
to do with the result that
the order became final and
the right of the landlords to get into possession of the
fishery
became
extinguished.
This
order therefore
affirmed the defendants' possession of the
fishery on
payment of a certain rental.