Raja Braja Sundar Deb vs Moni Behara And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 42 of 1948

Decision Date: 27 March, 1951

Coram: Mehr Chand Mahajan, B.K. Mukherjea, N. Chandrasekhara Aiyar

In this case, the Supreme Court of India heard an appeal titled Raja Braja Sundar Deb versus Moni Behara and others, decided on 27 March 1951. The judgment was authored by Justice Mehr Chand Mahajan, who sat with Justices B. K. Mukherjea and N. Chandrasekhara Aiyar. The petitioner was Raja Braja Sundar Deb and the respondents were Moni Behara and the other parties. The citation for the decision is 1951 AIR 247 and 1951 SCR 431. The dispute involved fishing rights in the rivers flowing through a zamindari estate. Fishermen from certain villages had, for many years, been permitted by the zamindar to fish in those waters. The questions presented to the Court concerned whether those fishermen could acquire a permanent right to fish by prescription or by adverse possession, whether a presumption of a lost grant could be applied, and what effect the provisions of section 145 of the Criminal Procedure Code and the limitation provisions under article 47 of the Limitation Act would have on the status of the fishermen’s possession. The Court observed that a right exercised intermittently by the inhabitants of a village is not attached to any estate in land and cannot be the subject of a grant because there are no identifiable grantees. The doctrine of a lost grant, the Court explained, is a technical device designed to enable a title to be created by prescription where it is impossible to prove immemorial use. Since the doctrine presupposes an original grant, the supposed owners of the right must be persons who could have been the original grantees, either directly or by lawful succession. From the evidence, the Court found that the fishermen were simply residents of the villages who, with the consent of some zamindars, had for a long time exercised the right to fish in the rivers. Accordingly, the Court held that the fishermen could not be regarded as a corporate body or a unit for whose benefit a lost grant could be presumed, nor could they acquire a permanent fishing right by adverse possession or by prescription. However, the Court noted that in certain cases proceedings under section 145 of the Criminal Procedure Code had been instituted between the zamindars and some of the fishermen. The magistrate, after hearing those proceedings, had found that the fishermen were in possession of the disputed fishery. The magistrate then issued an order declaring that the fishermen would continue in possession until they were lawfully evicted, and that no disturbance of that possession was permitted until such eviction occurred. The zamindars did not move to set aside the magistrate’s order within the three-year period prescribed by article 47 of the Limitation Act. The Court therefore held that, for those fishermen who were parties to the section 145 proceedings, the magistrate’s order had become final. Consequently, those fishermen were entitled to remain in possession of the fishery. The Court explained that an exclusive right of fishing in a particular place means that no other person holds a co-extensive right over the same area. The existence of a right to catch a particular class of fish, or a seasonal fishing right, does not defeat the claimant’s exclusive fishing right.

The Court recorded that the appeal originated as Civil Appeal No. 42 of 1948, filed against the judgment and decree dated 21 April 1943 rendered by the High Court of Judicature at Patna, whose bench comprised Chief Justice Fazl Ali and Justice S.C. Chatterji, in First Appeal No. 17 of 1939. That judgment itself arose from a decree dated 19 July 1939 issued by the Subordinate Judge at Puri in Original Suit No. 62 of 1936. Counsel for the appellant was identified as the advocate with G. P. Das assisting, while counsel for the respondents included an advocate with Sri Kant Mahanti assisting. The judgment of the Court was delivered on 27 March 1951 by Justice Mahajan. The dispute before the Court concerned fishermen residing in nine villages of Killa Marichpur, which formed a permanently settled zamindari in the Puri Collectorate of Orissa State, and the Raja of Aul, who held the share of seven annas, seven pies and ten karants in that zamindari. The remaining co-sharers in the zamindari were identified as defendants numbered 19 through 29. Within the geographical limits of the estate flowed the river known as Devi Nadi together with its various branches and tributaries. Three distinct fisheries – Madhurdia, Marichpurdia and Maladia – were recognised as belonging to the estate. The matter that gave rise to the present appeal related specifically to the fishery designated as the Madhurdia fishery. In the year 1936 the Raja of Aul had instituted three separate suits, numbered 62, 63 and 64, against defendants numbered 1 to 18 on his own behalf as well as on behalf of other fishermen residing in the nine villages of Killa Marichpur, seeking a declaration of his rights in the three fisheries mentioned above. All three suits had been decided by the trial court in favour of the Raja. No appeal was taken by the defendants in suits 63 and 64, so the decisions in those two suits remained final and settled the controversies concerning the Marichpurdia and Maladia fisheries. In suit No. 62 of 1936, however, the defendants did prefer an appeal to the High Court, which was partially allowed. The High Court modified the trial judge’s decree that had been in favour of the plaintiff, holding that the defendants possessed exclusive rights as tenants at will to fish in the Madhurdia fishery during the Hilsa season, which extended from Margasir to Baisakh, and that the plaintiff was therefore not entitled to a declaration or injunction covering that period. Following that modification, the plaintiff obtained leave to appeal to His Majesty in Council. That appeal was now before the Court for determination. The plaintiff’s pleading alleged that the proprietors of the Marichpur zamindari were the exclusive owners of the Madhurdia fishery and had continually exercised their proprietary right to catch fish there, either directly by employing fishermen or by leasing the fishery to them. The plaintiff further claimed that, since he had acquired his interest in the zamindari, he had become the owner in specific possession of the fishery right in accordance with his share in the zamindari. The plaintiff also contended that the defendants, who were fishermen, had never been in possession of the said fishery and possessed no right to it, and that in the year

In the year 1918 the defendants initiated criminal proceedings under section one hundred forty-five of the Criminal Procedure Code with the purpose of creating evidence of their possession of the fishery. Despite those proceedings the plaintiff continued to retain possession of the fishery and kept catching fish by employing fishermen. The plaintiff alleged that, taking advantage of the presence of several co-sharers in the zamindari and of mismanagement of the estate, the defendants trespassed unlawfully on the fishery on several occasions between May 1933 and November 1933. According to the plaintiff, those trespasses disturbed his enjoyment of the fishery, caused loss to him and his co-sharers, and resulted in a large quantity of fish being taken without any leave or licence. On the basis of these allegations the plaintiff prayed for a declaration that defendants numbered one through eighteen, in both their personal and representative capacities, possessed no right or title to the fishery known as “Madhurdia” or to the southern portion of the area described as the river block, Risilo and Husgarh. He also sought a perpetual injunction restraining the defendants from fishing in the said fishery and in the named blocks, and claimed an award of damages to cover the price of the fish that had been taken.

The defendants contested every allegation in the plaint. They asserted that the fishermen of Killa Marichpur, including the principal defendants and their ancestors—constituting about eight hundred and forty-six persons in total—had continuously enjoyed actual physical possession of the fishery known as “Charkhatia” alias “Madhurdia” on a fixed annual rental of rupees one hundred thirty-five and seven annas. They claimed that this possession gave them a perpetual right to remain in the fishery upon payment of the rent, and that they had acquired such a right through every possible mode: by grant, by custom, by adverse possession and by easement. On the pleadings of both parties the trial judge framed nine issues, the material ones being issues six and seven, which asked: (i) whether the plaintiff possessed any title to the disputed fishery, and (ii) whether defendants one to eighteen had acquired any right by adverse possession, prescription or custom. After considering the evidence, the trial judge held that the defendants, whether in their personal or representative capacities, possessed no right or title in the fishery and consequently issued a permanent injunction restraining them from fishing therein. The claim for damages was dismissed. The judge observed that the defendants did not claim a right to catch all fish found in the water but had limited their claim to Hilsa fish during the Hilsa season, which extends from the month of Margasir to Baisakh (November to April). Regarding other varieties of fish caught during the remainder of the year, the defendants made no assertion of any right. He also observed that “the defendants did not deny that the plaintiff was”.

The defendants admitted that the plaintiff owned the zamindari estate, and consequently owned the soil and the waters of the fishery, but they asserted only a subordinate right. They claimed the right to fish in those waters during the Hilsa season, to the exclusion of the plaintiff and his co-sharers. Because of these allegations, the burden of proof was placed on the defendants to establish a permanent right of fishing either by grant, by custom, by prescription or by adverse possession. The Court held that the defendants did not discharge this burden. It was observed that a right could not be established by grant, prescription or adverse possession in favour of an indeterminate and fluctuating body of persons. The claim that the defendants held a permanent tenancy in the fishery was rejected on the ground that there was no evidence showing that the tenancy had been inherited by the 846 persons from the individuals who originally possessed it in 1842, nor that it had been obtained from all sixteen anna landlords, nor that any fixed rent had ever been established. Further, the Court noted the absence of certainty regarding who owned the right, the precise local area over which the right could be exercised, the measurement of the right, and the periods during which it could be exercised. In view of these uncertainties, the defendants’ claim could not be sustained.

The defendants also contended that, under article 47 of the Indian Limitation Act, the plaintiff had lost his right, but the Court found this argument unsustainable and rejected the plea of custom on the basis that the alleged custom would be unreasonable. All questions that the trial court had raised, except for the question of custom, were taken up before the High Court. The High Court, in a judgment that was described as neither clear nor satisfactory, concluded that the defendants, since the time of their predecessors, had always fished in the disputed fishery as a matter of right under a lost grant, and that the plaintiff’s claim of enjoyment of the fishery was untrue. Although one might have expected the plaintiff’s suit to be dismissed on the basis of that finding, the High Court did not dismiss it. Instead, the High Court observed that, while the evidence showed that the defendants or their predecessors had been exercising the right since as early as 1842, there was no evidence to support the inference that they possessed a permanent right. Consequently, the defendants’ plea that they were permanent tenants of the disputed fishery was not upheld. The defendants also argued that the plaintiff was bound by an order passed in proceedings under section 145 of the Criminal Procedure Code.

It was determined that the plaintiff had failed to contest the order issued under section 145 of the Criminal Procedure Code within the time prescribed by law. Because of this failure, the plaintiff’s right to khas possession of the disputed fishery, except for a share of five pice, was extinguished under section 28 of the Limitation Act. Nevertheless, the court held that the plaintiff’s proprietary right continued to exist because it had never been denied. In addition, the plaintiff’s right to khas possession was also extinguished by the operation of article 144 of the Indian Limitation Act. The court found the plaintiff’s testimony that he had caught fish during the Hilsa season by hiring other fishermen to be unreliable. It was concluded that the defendants had been exercising an exclusive right to fish in the disputed fishery throughout the Hilsa season for more than twelve years, thereby acting to the detriment of the plaintiff and the other co-sharers. Despite these findings, the High Court reached an unusual conclusion that the defendants, by adverse possession, had acquired only a tenancy at will. The court said that such a tenancy could be determined only by the entire body of landlords and that the plaintiff, being merely a co-sharer, could not bring the present suit in his own name. Consequently, the court held that the suit could not result in a declaration or an injunction preventing the defendants from fishing during the Hilsa season.

The court also examined the plaintiff’s argument that a change in the river’s course meant that the fishery involved in the order under section 145 was different from the one in which the defendants exercised their right. The court rejected this contention, observing that the river remained the same and that its channels, whether old or newly formed, together constituted the Madhurdia or Charikhati fishery, which had always been a single connected water body. The court reasoned that fishing in different parts of a connected water body could not be regarded as a separate act of aggression sufficient to interrupt the continuity or scope of adverse possession. Moreover, the fishermen, although a fluctuating group, shared a common interest and possession, and therefore could not be described as multiple independent trespassers. As a result of these determinations, the decree of the trial judge was modified. The plaintiff was granted a permanent injunction that prohibited the principal defendants from fishing in the disputed fishery except during the Hilsa season, which runs from Margasir to Baisakh, a period during which the defendants were declared to have an exclusive right to fish. No appeal was filed against the High Court’s decision, even though the defendants had been found to hold the fishery only as tenants at will. The plaintiff subsequently challenged the decision, contesting the finding that the defendants were lawfully in possession of the fishery and could exclusively fish during the Hilsa season. The plaintiff’s underlying grievance appeared to be that the High Court had declared the fluctuating body of fishermen to be tenants at will, a tenancy that could not be determinable because its composition varied with each birth, death, and the movement of fishermen in and out of the villages.

In the judgment that is being appealed, the High Court described the group of fishermen as a fluctuating body of persons who were tenants at will, and it held that such a tenancy could not be defined because its composition changed with each birth, death, and the movement of fishermen into and out of the villages. The appellant argued that this finding was erroneous. He asserted that the High Court had mistakenly concluded that the defendants were in possession of the fishery and were enjoying a fishing right that derived from a lost grant, and that, consequently, the plaintiff’s right to exclusive possession of the fishery had been extinguished by operation of Articles 47 and 144 of the Limitation Act read together with Section 28 of that Act.

The appellant further contended that the record of evidence showed only that, from time to time, some fishermen were permitted to fish in the waters by various landlords on payment of rent. He emphasized that the present defendants were not the descendants of those fishermen who had occasionally been granted leave to fish, and that those isolated instances of permission were unrelated to one another. From this, the appellant argued, it could not be inferred that the defendants or their predecessors had maintained continuous possession of the fishery on a fixed rent, and therefore the present defendants were merely trespassers without any legal right to fish in the disputed fishery. He added that no title of any kind could be imputed to the defendants, that a lost grant could not be relied upon because there was no identifiable grantee, and that even title by adverse possession or prescription was unavailable to them, since the defendants formed an indeterminate and fluctuating body of persons.

Regarding the High Court’s conclusion that the plaintiff’s suit was barred by Article 47 of the Limitation Act and that his right to exclusive possession was extinguished by Section 28 of the Indian Limitation Act, the appellant maintained that the proceedings that had taken place in 1918 were incorrectly characterized as being under Section 145 of the Criminal Procedure Code. He argued that, in substance, the order issued in those proceedings fell within the scope of Section 147 of the Code, and therefore Article 47 did not apply. Consequently, the plaintiff was not obliged to file his suit within three years of that order to enforce his right. The appellant further submitted that the order could benefit only the parties who had been impleaded in those proceedings; the other defendants could not derive any advantage from it, and, in any event, the order could not bind the plaintiff with respect to the share he had purchased from co-sharers who were not parties to those proceedings. Finally, he pointed out that the river had altered its course in 1925, so that the fishery as it existed in 1918 no longer existed, and that in the substituted fishery the plaintiff’s right could not be said to have been extinguished by the effect of the order made under Section 145 of the Criminal Procedure Code.

In this case, the Court observed that the plaintiff’s right to fish could not be said to have been extinguished by the order issued under section 145 of the Criminal Procedure Code. The counsel representing the respondents argued that the defendants, as tenants, possessed an exclusive right to fish in the fishery and were entitled to continue enjoying that right upon payment of a perpetual fixed rent of Rs 135-7-0. The counsel further submitted that the plaintiff’s seasonal right to fish for Hilsa had been barred by the operation of article 47 and article 144 of the Indian Limitation Act. The respondents denied that any alteration in the course of the river, if it had occurred, had any effect on the defendants’ entitlement.

To understand the parties’ respective positions, the Court found it necessary to set out several facts derived from the documentary evidence placed before it. The State of Orissa had come under British rule in 1803, and a revenue settlement of the State was completed in 1904-05. A village note prepared during that settlement indicated that the estate of Killa Marichpur had originally been owned by Padmalav Mangaraj. During the lifetime of his great-grandson, Balabhadra Mangaraj, the estate was sold at auction to satisfy his debts and was purchased in equal shares by Mohan Bhagat, Chakradhar Mahapatra, and the ancestors of Haziran Nisa Bibi.

The jamabandi of 1842 (Exhibit C) showed that the jalkor revenue of the Killa Marichpur zamindari at that time amounted to Rs 135-7-0 and that this sum was being collected from two fishermen, Hari Behera and Brundu Anukul Singh. The document did not specify the legal status of these fishermen or the nature of their tenancy. Exhibit A, a kabuliyat dated 1845, recorded that Brundu Anukul Singh and Hari Behera had leased the fishing right in the Devi River from the landlords Babu Mohan Bhagat and Bibi Mobarak Nisa, agreeing to pay a rent of Rs 135. The lease stipulated that the fishermen would catch fish according to customary practice and would remit the “machdia sarbara” of Rs 135 in installments. The kabuliyat contained no language indicating that the signatories were acting as representatives of a larger group, that the lease was of a permanent nature, or that the rent could not be increased in the future.

Nevertheless, the defendants contended that the two fishermen had executed the 1845 kabuliyat on behalf of all fishermen originally residing in four villages of Killa Marichpur and later in the nine villages named in the plaint. The only evidence the High Court relied upon to support this contention was the statement of D.W. 11, who was born in 1873, approximately twenty-eight years after the kabuliyat was executed and who possessed no special knowledge of the relationships among the persons named in the document.

The Court observed that the testimony of D.W. 11, who was born in the year 1873—approximately twenty-eight years after the kabuliyat was executed—did not provide any special knowledge about the relationship of the persons named in the kabuliyat to the present defendants, nor did it disclose the capacity in which those persons signed the document. Consequently, the Court could not conclude that the kabuliyat had been executed in a representative capacity by the two fishermen on behalf of all persons interested in the dispute. Moreover, the record contained no evidence to establish the condition of the fishery between the years 1845 and 187, despite the defendants attempting to rely upon a series of rent receipts. The first such receipt, dated 30 March 1873, was signed by one of the Mahapatra co-sharers and referred to an instalment of the fishery rent termed “Charkhati,” which had been paid through Hari Behera and Rama Behera in the amount of Rs. 8-12-0. Not all co-sharers were parties to this receipt, and the total rent payable for the entire fishery was not specified. A later receipt, dated 11 May 1875, was executed by Bibi Masudannisa and other co-sharers holding a five-anna-four-pie share in the zamindari, and was made in favour of Hari Behera, Ananta Behera and others for a sum of Rs. 18, indicating that different co-sharers were granting permission to different individuals to fish in exchange for particular sums of money. The Court found no evidence linking the 1873 receipt, which involved two co-sharers and two payees, with the 1875 receipt issued by another group of co-sharers to the same payees; thus it could not be said that these payments were made toward a fixed rent of Rs. 135-7-0 for the whole fishery. The state of affairs of the fishery during the period from 1876 to 1893 remained unknown because no evidence for that interval had been presented. On 1 May 1894, a descendant of Mohan Bhagat gave a receipt to Pandab Behera and Phagu Behera for Rs. 10, which was to be set off against fishery rent, but the Court noted the difficulty of connecting this receipt with the others or treating it as proof of a permanent tenancy. Similar receipts executed by various co-sharers in favour of different persons were recorded on 1 May 1895, 5 May 1896, 9 May 1897 and 22 October 1899; none of these documents mentioned any fixed annual rent of Rs. 135-7-0 payable to all landlords. Finally, a printed rent receipt on behalf of one proprietor addressed to Hurshi Behera and Agani Behera of village Alsahi, dated 22 October 1899, related to the payment of twelve annas as arrears of fishery rent.

In the case, a receipt for the cash rent was shown in which the amount payable was recorded as Rs 150. The record indicated that this receipt, if it related to the rent due from all co-sharers, conflicted with the defendants’ assertion that the fishery had historically been let on a fixed rent of Rs 135-7-0. Subsequently, on 23 August 1902, a receipt was issued on behalf of co-sharers holding nine anna seven pie in the zamindari to Maguni Behera, Ram Behera of Kalia Kona, and Sapani Behera of another village. That receipt reflected a sum of Rs 83-12-11 as the fractional share of those landlords, and it further stated that the total rent, of which Rs 83-12-11 represented the portion of these particular landlords, amounted to Rs 135-7-0. The defendants contended that the figure Rs 135-7-0 appearing in this receipt was identical to the amount recorded in the jamabandi of 1842 as the income of the jalker, and that this coincidence demonstrated an uninterrupted lease of the fishery for that sum from 1842 up to the date of the receipt. While the coincidence indeed existed, the Court observed that it could not be used to infer a continuous lease because such a conclusion would be speculative and not founded on concrete proof. All of the receipts examined were found to align with the plaintiff’s position that, over time, different co-sharers allowed various fishermen to use the fishery in exchange for certain rentals, rather than establishing a permanent tenancy at a fixed rent of Rs 135-7-0.

A receipt of a similar nature was also executed on 5 March 1906 by co-sharers holding eight pies in the zamindari in favour of some fishermen, setting the annual rent at Rs 135-7-0. The “Remarks Column” on that document indicated that any amount exceeding the stated rent would be payable subsequently, and the same explanatory note applied to the earlier receipt. The next rent receipt, dated 19 April 1907, recorded a sum of Rs 168-6-0; no specific inference, either supporting or rejecting the parties’ contentions, could be drawn from that entry. On 21 June 1912, a receipt was issued in favour of twelve persons for the year 1317. Although the receipt was given by the co-sharer holding nine anna seven pie in the zamindari, the composition of that amount was not explained. Further, on 4 February 1914, an eight-pie co-sharer in the zamindari issued a receipt to 174 persons described as tenants residing in various villages of the zamindari, levying a rent of Rs 5-13-6 for the year 1319. The “Remarks” column on this receipt mirrored the language used in the earlier documents, stating that the annual rent of Rs 135-7-0 was being paid in compliance with court decree No 181. It was difficult to correlate this receipt with the previously discussed documents. Another receipt dated 30th March 1914,

It was observed that a receipt had been issued by co-sharers holding nine anna seven pie in the fishery to twelve individuals for the fiscal year 1320. The Court considered that such sporadic receipts, which were provided to various persons by differing groups of co-sharers, did not permit any definite conclusion regarding the legal rights of the parties involved. The Court noted that these receipts were compatible with the argument presented on behalf of the plaintiff, namely that fishermen, by virtue of leave and licence, fished in the waters intermittently and that the existence of these receipts did not necessarily imply a permanent tenancy of the fishery in favor of the defendants at a fixed rent of Rs. 135-7-0.

By a registered deed dated 24 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 Balaram Das Bhagat, a descendant of Mohan Bhagat. Subsequently, the plaintiff, either in his own name or occasionally in the name of the Rani, purchased additional shares in the zamindari and ultimately became the proprietor of a share consisting of seven anna seven pie and ten kranth. This acquisition of an interest by the plaintiff, identified as the Raja of Aul, coincided with the period of the First World War, after which there was a notable increase in prices. Fish, previously a cheap commodity that yielded little income for either the fishermen or the owners, transformed into a source of considerable revenue, a development that gave rise to disputes between the owners of the fishery and the fishermen.

The Court recorded that a series of letters dated from 1914 to 1918 had been produced on behalf of the plaintiff, demonstrating that he was deriving income from the fishery. Similar letters covering later periods were also presented, although no regular accounts of the income so realized were produced in the proceedings. The rise in income from the fishery created a competitive struggle for possession between the landlords and the fishermen, and there was a genuine apprehension that the situation could lead to a breach of the peace. Consequently, proceedings were instituted under section 145 of the Criminal Procedure Code.

According to the record, a police report was filed on 11 February 1918, indicating that a dispute had arisen which was likely to cause a breach of peace between the landlords of Killa Marichpur and twelve fishermen concerning the possession of the Charikhati fisheries in the Debi River. Upon receipt of this report, the Magistrate issued notice to the parties on 10 February 1918 and subsequently decided the matter on 10 June 1918. The Magistrate’s order showed that notice had been served on all concerned parties, inviting each to present their respective claims regarding the factual possession of the disputed fishery. Evidence was later led on behalf of certain co-sharers, indicating that they were in possession of the fishery through an individual named Sundari Behera and about one hundred other fishermen. The Rani of Aul, who at that time held an eight-pie interest

The Rani of Aul claimed an interest in the zamindari as the benamidar of her husband, and the evidence she presented showed that she occupied the disputed fishery through fishermen who were employed by her agent. In contrast, the second party, consisting of Ram Behera, Hrushi Behera and ten other fishermen, produced evidence that they occupied the fishery by paying rent and that the zamindari owners had never actually possessed the fishery themselves. The magistrate examined these rival submissions and concluded that the second party’s contention was correct. He rejected the version offered by the witnesses produced by the Rani of Aul and also dismissed the testimony of witnesses offered by the other zamindari owners. A further group of fishermen from Aul, who were presented on behalf of the Rani, also failed to persuade the magistrate, and their evidence was not accepted. Likewise, documentary material that the plaintiff had placed on record was submitted to the magistrate, but he declined to admit it as proof.

From the record of these proceedings it also emerges that all sixteen “anna” owners of Killa Marichpur had issued a notice to the second-party fishermen, directing them to surrender possession of the fishery with effect from September 1917. After serving the notice, however, the owners did not take any legal steps to evict the fishermen. Instead they attempted to take the fishery by force, an effort that proved unsuccessful. The magistrate therefore found that the fishermen continued to be in actual possession of the disputed fishery. He consequently directed that an order be issued declaring that the fishermen’s possession would remain in force until they might be lawfully evicted, and he ordered that no disturbance of their possession be allowed pending any such eviction.

This order reveals that, although the landlords were not named as parties to the suit, each of them had received notice of the proceedings and was genuinely interested in removing the fishermen by force. The notice had been issued on behalf of all of them. The proceedings also indicate that, although twelve individuals were specifically named as the second party, there were additional persons who shared an interest in the fishery; their exact numbers, names and addresses could not be ascertained from the record. The plaintiff later sought to show that, after the magistrate’s decision, he derived income from the fishery by leasing his rights to fishermen from Aul. The High Court did not rely on this evidence, a view that the present analysis supports. It is implausible that, after achieving a favorable ruling in the criminal proceedings, the fishermen would have permitted the Raja’s or the Rani’s men to fish in the waters during the Hilsa season. Both sides, however, presented oral evidence asserting that each party exercised an exclusive right to fish during the Hilsa season.

In this case the Court examined the evidence relating to the season in the fishery and concluded that the material presented was of an unsatisfactory character, rendering it impossible to decide valuable rights on its basis. The landlords did not file any challenge to the Magistrate’s order within three years of its date, as required by article 47 of the Limitation Act. After the termination of the earlier proceedings, the landlords refused to accept rent from the occupants and instead deposited the amounts in court pursuant to the provisions of the Orissa Tenancy Act. The last acquisition by the Raja of Aul of an interest in the zamindari occurred in 1935; by that time he had obtained a substantial interest and had become aware that the fishery generated revenue. Consequently, in 1986 he instituted the present suit, alleging that about three years earlier the defendants began to disturb his possession of the disputed fishery. The Court found that this allegation could not be accepted as credible. To evade the consequences of the proceedings under section 145 of the Criminal Procedure Code, the Raja claimed that he had remained in possession of the fishery despite those proceedings and that any disturbance of his possession was a recent development. The High Court had rejected the evidence supporting that claim, and the present Court saw no reason to depart from that finding. Having addressed the factual background, the Court turned to the various points raised by counsel for the parties. It expressed difficulty in sustaining the High Court’s view that the defendants held the disputed fishery under a lost grant, observing that the doctrine of lost grant does not apply to situations where inhabitants of particular localities seek to establish user rights over land or water. Referring to the observations of Lord Radcliffe in Lakshmidhar Misra v. Rangalal (1), the Court noted that the lost-grant doctrine was originally a technical device intended to allow title to arise by prescription where immemorial use could not be proved, and that it required a grant-able interest that could be transferred to a grantee capable of receiving a grant. Rights exercised intermittently by village inhabitants are not attached to any estate in land and cannot be the subject of a grant because there are no admissible grantees. The Court further indicated that the principle had been examined in detail by the Calcutta High Court in Asrabulla v. Kiamatulla (2), where the question arose whether a right of pasturage claimed by an entire village could be acquired by an express or implied grant.

The Court observed that after reviewing a number of English and Indian authorities, it could not be held that a lost grant might be presumed in favour of a shifting and indeterminate group of individuals who constituted the villagers. Such a right could be acquired only by custom. The defendants in the present matter were described as a fluctuating body whose membership changed with each birth, death, or the arrival or departure of fishermen from the villages concerned. Evidence recorded by the eleventh witness indicated that originally the fishermen, known as Kouts, who claimed the fishing right lived in four villages; some later moved to other villages after their houses were destroyed by floods and subsequently settled in additional villages. At the time the suit was filed, those fishermen were residing in nine villages. The witness further stated that during the preceding ten to twelve years there were six hundred fishermen, and that their families had grown, bringing the present number to eight hundred and forty-six. The record showed that after the testimony the total had risen to one thousand five hundred. Documentary material demonstrated that up to the year nineteen eighteen the number of fishermen had not been large; only twelve persons had been impleaded in the criminal procedure code section one hundred forty-five proceedings, although it was conceded that there were additional interested parties. The highest figure appearing in one or two receipts was one hundred seventy-four. The Court concluded that it could not treat the fishermen residing in those villages as a corporate body, nor could their professional status as fishermen render them incorporated. Consequently, the Court could not accept the High Court’s view that the defendants formed a unit merely because they shared a common interest in fishing the fishery. Unless the fishermen constituted a corporate entity or a trust was established for their benefit, such a group could not acquire a right through the doctrine of lost grant. The Court reasoned that a fishing right based solely on residence could increase indefinitely as the number of fishermen grew, and that a grant to a body incapable of succession would inevitably destroy the subject matter of the grant. Moreover, a valid grant could not be made to a body so unable to ensure succession to confer a right on each successive inhabitant. For these reasons, the Court rejected the defendants’ claim to remain in possession of the fishery on the basis of a lost grant, prescription, or adverse possession. The evidence merely showed that, from time to time, various fishermen had exercised the right to fish with the permission and licence of certain owners, a circumstance that was insufficient to establish the acquisition of a right by adverse possession or prescription.

In this case, the Court observed that the plaintiffs could not acquire any right to the fishery either by adverse possession or by prescription, because the evidence did not demonstrate that they had consistently paid the same amount of rent. Accordingly, the Court could not make any finding in the plaintiffs’ favour on that basis. The Court then considered the finding of the High Court that the landlords had lost their right to exclusive possession of the disputed fishery by reason of the operation of article 47 of the Indian Limitation Act and held that finding to be correct. However, the Court disagreed with the High Court’s view that the order issued in the proceedings under section 145 of the Criminal Procedure Code was not binding on the plaintiff to the extent of five pies share. The Court explained that the true scope and effect of that order had not been fully appreciated. It noted that the order had been made after notice to all the landlords, had arisen because of the action of all of them, and consequently bound the entire sixteen anna interest in the zamindari. In clear terms, the magistrate had declared that the second party was in exclusive possession of the disputed fishery, that the landlords had no right to disturb that possession, and that the landlords were directed to bring a suit to establish any right of possession. The landlords failed to do so, and therefore the order became final, extinguishing the landlords’ right to enter into possession of the fishery. Consequently, the order affirmed the defendants’ possession of the fishery on condition of payment of a specified rental. The Court stressed that this right could be exercised only by those who were parties to the section 145 Criminal Procedure Code proceedings or by their successors in interest. Counsel for the appellant had argued that the 1918 proceedings were in substance filed under section 147 of the Criminal Procedure Code and had been incorrectly labelled as section 145 proceedings. The Court could not accept that contention because the dispute raised in 1918 concerned the possession of the fishery itself and involved a question of water and its boundaries, which fell within the language of section 145. Moreover, subsection 2 of section 145 expressly includes fisheries within the expression “land or water.” Counsel further submitted that, in any event, the benefit of the order made under section 145 could be taken only by the persons in whose favour that order was made and could not extend to all 846 fishermen represented by the eighteen defendants or to any future fishermen who might reside in the nine villages. The Court agreed with that submission and held that the High Court had erred in holding otherwise. The Court found no evidence to show that anyone other than the twelve persons specifically mentioned as the second party in the section 145 proceedings was entitled to the benefit of that order.

In reviewing the order issued under the Criminal Procedure Code, the Court held that the benefit of that order could be granted only to those defendants who were represented by the twelve persons identified in the earlier section 145 proceedings. The counsel for the appellant supplied a detailed list showing which individuals had been parties to the section 145 proceedings and indicated which of the present defendants stood in the position of those earlier parties. According to the list, defendants numbered 1, 2, 3, 5, 6, 7, 9 and 12 were either themselves or, through their predecessors in interest, parties to the former case and therefore qualified to receive the advantage of the earlier judgment. The Court further observed that every other defendant, whether joined personally in the present suit, acting in a representative capacity, or representing other persons, was not entitled to rely on the benefit of those earlier proceedings. Consequently, the Court concluded that only the eight defendants specifically named could continue to possess the fishery, provided they paid an annual rent of Rs. 135-7-0, pending any lawful increase of that amount, and that they would lose the right to remain in possession if a proper cause arose. The Court also noted a prior decision stating that the right to possess the fishery for fishing during the Hilsa season could not be assigned or transferred, although it could be enjoyed by the heirs and successors of the original holders. The argument that a change in the river’s course meant that the disputed fishery was not the same as the one involved in the 1918 proceedings was rejected as untenable. The Court found no reason to depart from the High Court’s view that the alteration of the river’s channel did not affect the defendants’ possession, because the old and new channels that constitute the Madhurdia or Charkhati fishery together form a single continuous body of water. It is a well-settled principle that fish follow the river’s course and fishermen follow the fish. The Court also addressed the contention that an exclusive right of fishing could not be obtained for a specific species of fish during a particular season, holding that this argument could not succeed under the provisions of section 145 of the Criminal Procedure Code. Moreover, the Court explained that an exclusive right of fishing in a defined location means that no other person holds a co-extensive right over the same area; the existence of another person’s right to a particular class of fish or to fish at a certain time does not nullify the exclusive fishing right, as affirmed in Halsbury’s Laws of England, Hailsham Edition, volume 15, paragraph 59. Accordingly, the Court allowed the appeal in part, modified the decree of the High Court, and granted the plaintiff’s suit for a declaration and injunction, declaring that

The Court declared that the plaintiff was permitted to fish in the contested waterway at all times except during the Hilsa fishing season, which runs from Margasir to Baisakh. During that specific season, the Court recognized that defendants numbered 1, 2, 3, 5, 6, 7, 9 and 12 possessed an exclusive entitlement to catch Hilsa in the same fishery. The exclusive entitlement may be exercised by those defendants personally or through the assistance of other fishermen, provided that they continue to pay an annual rent of Rs. 135-7-0. The rent may be increased in accordance with the law, and the defendants will forfeit their right to remain in possession of the fishery if a valid reason for loss of that right is established. The Court further ordered that the remaining defendants, that is, those not listed among 1, 2, 3, 5, 6, 7, 9 and 12, were prohibited from interfering with the plaintiff’s fishing rights at any time. Additionally, the Court restrained the aforementioned exclusive-right defendants from infringing upon the plaintiff’s fishing activities during those months when they did not hold an exclusive right. The Court also held that defendants other than the specified group had no legal claim of any kind over the fishery and therefore could not meddle with the plaintiff’s entitlement. In view of the overall circumstances, the Court declined to make any order regarding the costs of the appeal and granted relief by allowing the appeal in part. The agents representing the parties were identified as P. Varma for the appellants and R.C. Prasad for the respondents.