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PETITIONER: RAJA BRAJA SUNDAR DEB

       Vs.

RESPONDENT: MONI BEHARA AND OTHERS

DATE OF JUDGMENT: 27/03/1951

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND MUKHERJEA, B.K. AIYAR, N. CHANDRASEKHARA

CITATION:  1951 AIR  247            1951 SCR  431  CITATOR INFO :  R          1955 SC 228  (7)

ACT:     Fisheries--Fishermen  of particular villages allowed  to fish for several years by zemindar --Acquisition of right to fish--Presumption   of   lost   grant--Prescription--Adverse possession--Proceedings under s. 145, Cr. P.C., effect of.

HEADNOTE:     A  right exercisable by the inhabitants of   a   village from time to time is neither attached to any estate in  land nor  is  it  such a right as is capable of  being  made  the subject of a grant, there being no ascertainable grantees.    The  doctrine  of lost grant originated as  a  technical device  to enable title to be made by  prescription  despite the  impossibility of proving immemorial user and  since  it originated  in  grant, its owners, whether  original  or  by devolution, had to be such persons as were capable of  being the recipients of a grant.     Where  all that appeared from the evidence was that  the fishermen  who were residents of certain villages  had  been for  a long time exercising the right of fishing in  certain rivers which flowed through a zemindari with the consent  of some of the zemindars: Held, that the fishermen residing  in these  villages cannot be treated as a corporate body  or  a kind of unit in whose favour a lost grant could be  presumed or  who  could  acquire a right to fish  either  by  adverse possession or by prescription.     Where, however, there were proceedings under section 145 of  the  Criminal Procedure Code between the  zemindars  and certain fishermen and the Magistrate found that the  fisher- men  were in possession of the disputed fishery and  he  di- rected  the  issue of an order  declaring  their  possession until evicted therefrom in due course of law and  forbidding all disturbance of such possession until such eviction,  and no steps were taken by the zemindars to set aside the  order of the Magistrate within three years as required by  article 47 of the Limitation Act: Held., that so far as the  fisher- men  who were parties to the proceedings under section  145, the  order of the Magistrate had become final and they  were entitled to remain in possession of the fishery.

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   An  exclusive  right of fishing in a given  place  means that  no  other  person has a co-extensive  right  with  the claimant of the right.  The mere fact that some other person has a right to a particular class of fish in the fishery  or that another person is                 56 432 entitled  to  fish at a certain time of the  year  does  not destroy the right of exclusive fishing in any manner.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 42 of 1948.    Appeal  against  the judgment and decree dated  the  21st April, 1943, of the High Court of Judicature at Patna  (Fazl Ali  C.J. and S.C. Chatterji J.) in First Appeal No.  17  of 1939 arising out of decree dated the 19th July, 1939, of the Subordinate Judge at Puri in Original Suit No. 62 of 1936.   Manohar Lal (G. P. Das, with him) for the appellant.    B.N.  Das (Sri Kant Mahanti, with him) for the  respond- ents.     1951. March 27.  The Judgment of the Court was delivered by     MAHAJAN  J .--The dispute in this appeal is between  the fishermen   residing in nine villages of Kills Marichpur,  a permanently  settled  zamindari  in  the  Puri  Collectorate (Orissa  State)  and  the Raja of Aul, the  owner  of  seven annas,  seven pies, and ten karants share in the  zamindari. The other sharers in the zamindari are defendants 19 to  29. Within  the ambit of the estate flows "Devi Nadi"  with  its several branches and tributaries. Three fisheries  ’’Madhur- dia,  "Marichpurdia"  and  "Maladia" appertain to  this  es- tate.   The controversy in this appeal concerns the  fishery known as the "Madhurdia" fishery.     In the year 1936, three suits, Nos. 62, 63 and 64,  were brought  by  the Raja of Aul against defendants 1 to  18  on behalf  of  themselves and other fishermen residing  in  the nine  villages of Killa Marichpur for a declaration  in  re- spect of his rights in the three above mentioned  fisheries. All  these  suits were decided in his favour  by  the  trial court.  The defendants preferred no appeal in suits  63  and 64,  with the result that the controversy regarding the  two fisheries  involved in these two suits stands  concluded  by the  decision of the trial court.  In suit No. 62  of  1936, however, the  433 defendants preferred an appeal to the High Court and it  was partially  allowed. The decree of the trial Judge in  favour of  the  plaintiff  was modified and it was  held  that  the defendants  had exclusive rights as tenants at will to  fish in  this fishery during the Hilsa season (Margasir  to  Bai- sakh) and that the plaintiff was not entitled to a  declara- tion or an injunction in respect of that period. The  plain- tiff  thereupon obtained leave to appeal to His  Majesty  in Council and that appeal is now before us for decision.     It  was  alleged in the plaint that the  proprietors  of Marichpur zamindari are the exclusive owners of the  fishery in  question and have all along been exercising their  right of catching fish in the same sometimes by employing  fisher- men  and sometimes by letting out the fishery to them,  that the plaintiff has ever since his acquisition of the  zamind- ari interest been the owner in khas possession of the  fish- ery right according to his share in the zamindari, that  the defendants-fishermen  were never in possession of  the  said

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fishery,  nor  have they any right to it, that in  the  year 1918  they started proceedings under section  145,  Criminal Procedure  Code, to create evidence of their possession  but in spite of those proceedings the plaintiff continued to  be in  possession of the fishery and has been catching fish  by employing  fishermen, that by taking advantage of  the  fact that  there are  several  co-sharers  in the  zamindari  and there is mismanagement of the estate, the defendants  wrong- fully and unlawfully trespassed on the fishery from time  to time  between May, 1933, and November, 1933,  and  disturbed the plaintiff in the enjoyment of his right and have  caused loss to him and his co-sharers by catching large quantity of fish  without any leave or licence.  On  these  allegations, the  plaintiff  claimed  a declaration to  the  effect  that defendants  1  to 18 in their  personal  and  representative capacity  have  no right or title in the  fishery  known  as "Madhurdia"  fishery or to the fishery in the southern  por- tion  of  the area recorded as the river block,  Risilo  and Husgarh.  Prayer was also made for the grant of a  perpetual injunction restraining the defendants from 434 fishing  in  the above fishery and in  the  above  mentioned blocks and for the award of a sum of money by way of damages and on account of price of fish.,     The  defendants  contested the allegations made  in  the plaint  and asserted that the fishermen of  Killa  Marichpur including  the  principal defendants  and  their  ancestors, about 846 persons in all, have all along remained in  undis- turbed  actual physical possession of the fishery  known  as "Charkhatia"   alias "Madhurdia" fishery on a  fixed  annual rental of Rs. 135-7-0, and have a right to remain in posses- sion  in perpetuity on payment of that rent; that they  have acquired  this right in all possible ways, i.e.,  by  grant, custom, adverse possession and easement.     On these pleadings of the parties the trial Judge framed as many as nine issues, the material ones being issues 6 and 7, which are in these terms :--   "6.       Has  the  plaintiff any title  to  the  disputed fishery ?   7.        Have  the defendants Nos. 1 to 18  acquired  any right, by adverse possession, prescription  or custom ?"     The trial Judge on these issues held that the defendants neither in their personal nor in their representative capac- ity  had any right or title in the fishery in  question  and issued  a permanent injunction against them from fishing  in it.  The claim for damages was disallowed.  It was  observed by  the learned Judge that the defendants did not claim  the right  to catch all the fish found in the fishery  but  that they had confined their claim in respect to Hilsa fish  only during  the Hilsa season between the months of Margasir  and Baisakh  (November to April) and that as regards  the  other varieties  of fish found in these waters during the rest  of the  year they did not assert any right to catch  fish.   He also  observed  that ’the defendants did not deny  that  the plaintiff  was the owner of the zamindari and as such  owner of the soil and of the waters of the fishery, but that  they claimed  a subordinate right, i.e., the right of fishing  in the 435 waters belonging to the plaintiff and his co-sharers  during the  Hilsa season to the exclusion of the plaintiff and  his co-sharers.  In view of these contentions the onus was  laid on the defendants to prove their permanent right of  fishing in  these waters by grant, custom, prescription  or  adverse possession  and  it was held that the defendants  failed  to

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discharge the onus that rested on them.  Acquisition of  the right by grant, prescription and adverse possession was held not provable in law in favour of an indeterminate and  fluc- tuating   body of persons.  The claim for permanent  tenancy in the fishery was negatived on the ground that there was no evidence to show that the tenancy  came by  descent to these 846 persons from  the persons who actually took  it  in  the year  1842, or  that  it  was obtained from  all the sixteen anna landlords,  or that there  was any fixity of rent.   It was further said that there was no certainty as to who  were the owners of the right, as to the local area over which the right  was to be exercised, as to the measure of  the  right and of the periods during which the right could be exercised and  that  in  these  circumstances  the  defendants’  claim could not be upheld.  The defendants’ contention that  under article  47 of the Indian Limitation Act the  plaintiff  had lost his right was held unsustainable and the plea of custom was ruled out on the ground that the custom alleged would be of an unreasonable kind.     All  the questions raised in the trial  court  excepting the  question  of custom were canvassed  by  the  defendants before the High Court.  The High Court in a judgment, by  no means clear or satisfactory, reached the conclusion that the defendants  since  the time of their  predecessors  had  all along been fishing in the disputed fishery as of right under a lost grant and that the plaintiff’s story that he had been in  enjoyment of the fishery was not true and that  the  de- fendants’  right to fish in the disputed fishery was  estab- lished.  One would have thought that in view of this finding the plaintiff’s suit would have been dismissed 436 but  this did not happen.  The High Court proceeded to  find that though from the evidence it appeared that the right was being exercised by the defendants or their predecessors from a  very long time, that is to say, from the year  1842,  yet there was no evidence to justify the inference that they had got a permanent right.  The defendants’ plea therefore  that they  were permanent tenants of the fishery in  dispute  was not upheld.  As regards the defendants’ contention that  the plaintiff was bound by the order passed in proceedings under section  145, Criminal Procedure Code, it was found that  he not  having  challenged  that order  within  the  prescribed period, his right to khas possession of the disputed fishery except  to  the extent of five pice share  was  extinguished under section 28 of the Limitation Act but that his proprie- tary right subsisted as it was never denied.  It was further held  that the plaintiff’s right to khas possession of  this fishery was also extinguished by operation of article 144 of the Indian Limitation Act. Plaintiff’s evidence that he  had been  catching  fish during the Hilsa  season  by  employing other  fishermen  was disbelieved and it was held  that  the defendants  had been exercising exclusive right to  fish  in the  disputed fishery during the Hilsa season  adversely  to the plaintiff and the other co-sharers for more than  twelve years. In spite of these findings the High Court reached the somewhat strange conclusion that the defendants acquired  by adverse possession a mere tenancy at will and that it  could be determined by the entire body of landlords and the plain- tiff being only a co-sharer could not bring the present suit in  his own behalf and it had not the effect of  determining the tenancy and hence the plaintiff could not be granted the declaration  and the injunction restraining  the  defendants from  fishing during the Hilsa season. As regards the  point raised by the plaintiff that by reason of the change in  the course of the river the fishery in dispute was not the  same

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regarding which an order was made under section 145 proceed- ings  or in which the defendants have been exercising  their right,  it was held that this contention was  without  force because 437 the  river  was identical and the channels, whether  old  or new,  which  comprise the Madhurdia or  Charikhati  fishery, have  always  formed one connected sheet of water  and  that fishing  in  different parts of such a  connected  sheet  of water comprised in the same fishery can hardly be said to be a separate act of aggression so as to disturb the continuity or  extent  of  adverse possession and  that  the  fishermen though  a fluctuating body, have unity of interest and  pos- session  and could not be described as  several  independent trespassers. As a result of these findings the decree of the trial  Judge  was  modified and the plaintiff  was  given  a permanent  injunction restraining the  principal  defendants from fishing in the disputed fishery except during the Hilsa season  (Margasir  to Baisakh) during which  the  defendants were declared to have exclusive right of fishing. Against  the decision of the High Court no appeal  was  pre- ferred by the defendants though they had only been found  to be  in possession of the fishery in the status of mere  ten- ants  at  will. The plaintiff challenged this  decision  and contested  the finding that the defendants were lawfully  in possession of the fishery and could exercise their right  of fishing  during  the  Hilsa season  exclusively.   The  real grievance of the plaintiff seems to be that by the  decision under appeal the High Court has declared a fluctuating  body of  persons tenants at will, and that such a tenancy  cannot be  determined  as its constitution is liable to  vary  with each birth and death and with influx or efflux of  fishermen to  and  from these villages.  It was argued that  the  High Court  has  erroneously found that the  defendants  were  in possession  of  the  fishery and were in  enjoyment  of  the fishing  right under a lost grant and that  the  plaintiff’s right  to  khas possession of the fishery  had  been  extin- guished  by operation of articles 47 and 144 of the  Limita- tion Act read with section 28 of the Act.  It was  contended that from the evidence placed on the record the only correct conclusion to draw was that from time to time some fishermen were  allowed tot fish in these waters by a number of  land- lords 438 on payment of rent but that the present defendants were  not the  descendants  of those fishermen who  were  occasionally granted  leave  to  fish and that those  isolated   acts  of letting the fishery were not connected with one another  and from  these it could not be inferred that the defendants  or their  predecessors  were in continuous  possession  of  the fishery  on  payment of a fixed rent and  that  the  present defendants were mere trespassers and had no right to fish in the  disputed  fishery.  It was further  contended  that  no title of any kind could be presumed to exist in the  defend- ants to the fishery in suit and on the basis of a lost grant as  in this case there was no capable grantee and that  even title  by  adverse possession or prescription could  not  be acquired by them as they form an indeterminate and fluctuat- ing  body  of persons.  As regards the finding of  the  High Court that the plaintiff’s suit was barred by article 47  of the  Limitation  Act and his title to  khas  possession  was extinguished by operation of the provisions of section 28 of the  Indian Limitation Act, it was contended that  the  pro- ceedings  that  took  place in the year  1918  were  wrongly labelled  under  section 145, Criminal Procedure  Code,  and

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that  in substance the order made in those proceedings  fell within  the ambit of section 147 of the Code  and  therefore article 47 had no application to the case and the  plaintiff was  not bound to bring his suit within three years of  that order  to enforce his right.  It was further contended  that the order could only benefit the parties impleaded in  those proceedings  and the other defendants could not  derive  any assistance  from  it, that in any case the order  could  not bind  the plaintiff to the extent of the share purchased  by him  from co-sharers not made parties in  those  proceedings and  that  the river having changed its course in  the  year 1925,  the  fishery  as it stood in 1918 was  no  longer  in existence  and in ,the substituted fishery  the  plaintiff’s right  could  not be held to have been extinguished  by  the effect of the order made in section 145, Criminal  Procedure Code, proceedings.  The learned counsel for the  respondents contended that the defendants had in the status of 439 tenants an exclusive right to fish in the fishery ’and  were entitled to remain in enjoyment of it on payment of a  fixed rent  of  Rs. 135-7-0 in perpetuity,  that  the  plaintiff’s right  of  fishing in the fishery during  Hilsa  season  had become  extinguished by operation of article 47 and  article 144  of the Indian Limitation Act. It was denied that  by  a change  in the course of the river, if any, the  defendants’ right  had in any way been affected. In order to  appreciate the respective contentions of the parties it is necessary to state a few facts which emerge from the documentary evidence produced in the case.     The  State of Orissa came under the British rule in  the year  1803.  A revenue settlement of the State was  made  in 1904-05.  From the village note prepared during the  settle- ment,  it appears that Killa Marichpur was Originally  owned by  one  Padmalav Mangaraj and that during the time  of  his great  grandson Balabhadra Mangaraj the estate was  sold  in auction  for satisfaction of debts incurred by him  and  was purchased by (1) Mohan Bhagat, (2) Chakradhar Mahapatra, and (3) the ancestors of one Haziran Nisa Bibi in equal  shares. From  the jamabandi of the year 1842 (Exhibit C) it  appears that the jalkor income of Killa Marichpur zamindari at  that time was Rs. 135-7-0, and this was being realised from  Hari Behera  and Brundu Anukul Singh, two fishermen.  It  is  not clear  from  this document in what status they  were  paying this  amount  and  what was the  nature  of  their  tenancy. Exhibit  A is a kabuliyat of the year 1845 by Brundu  Anukul Singh  and  Hari Behera in favour of Babu Mohan  Bhagat  and Bibi  Mobarak  Nisa, and it shows that these  two  fishermen took  a lease of the fishing right in Devi river on  payment of Rs. 135 as rent, from the landlords. It was stated there- in  that these fishermen will catch fish from  these  waters according to former custom and will pay "machdia sarbara" of Rs.  135  in accordance with the instalments.  There  is  no indication  in  the kabuliyat that these  two  persons  were executing it in a representative capacity or that the  lease taken by them was of a permanent character or 440 that the rent payable was not liable  to enhancement in  the future.  It was contended on behalf of the  defendants  that these two persons executed the kabuliyat in a representative capacity  and on behalf of all the fishermen who  originally resided  in four villages of Killa Marichpur and who  subse- quently came to reside in the nine villages mentioned in the plaint. The only evidence placed on the record in support of the  suggestion  and relied upon by the High  Court  is  the statement  of  D.W. 11 who was born some time in   the  year

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1873,  about 28 years after the execution of  the  kabuliyat and  who has no special means of knowledge to depose  as  to the relationship of persons mentioned in the kabuliyat  with the defendants in the present case or to know the   capacity of persons who executed the kabuliyat.  It  is not  possible therefore  to  hold that the kabuliyat   was executed  in  a representative  capacity by these two persons and on  behalf of  all the persons interested in the  present  controversy. There  is  no evidence on the record to prove the  state  of affairs  of  this fishery between the years 1845 and  187  a Reliance  was placed by the defendants on a number  of  rent receipts produced by them in evidence. The first of these is dated  30th  ’March, 1873, and was executed  by one  of  the Mahapatra co-sharers on account of the instalment of fishery rent of "Charkhati" paid through Hari Behera and Rama Behera in  the sum of Rs. 8-12-0. All the co-sharers were not  par- ties to this receipt and it is not stated what was the total rent  payable for the whole fishery. On the 11th May,  1875, another receipt was executed by Bibi Masudannisa and Others, co-sharers of five anna four pies in the zamindari in favour of Hari Behera and Ananta Behera and others for a sum of Rs. 18.  It seems that different co-sharers were giving  permis- sion to different persons to fish in the fishery on  payment of  certain sums of money. There is no  evidence  whatsoever connecting  the receipt of 1873 given by two  co-sharers  to two  persons  with the receipt given by another set  of  co- sharers  to these two persons and it is not possible to  say that these payments were made towards a fixed 441 rent of Rs. 135-7-0 payable for the whole fishery. The state of  affairs  of this fishery between 1876  to  1893  remains shrouded in mystery as no evidence for that period has  been filed  on the record.  On the 1st May, 1894, Mohan  Bhagat’s descendant gave a receipt to Pandab Behera and Phagu  Behera for  Rs. 10, which was to be set off against  fishery  rent. It  is  difficult  to connect this receipt  with  the  other receipts  or to treat it as evidence in support of  the  de- fendants’ case of a permanent tenancy.  Similar receipts  by different  co-sharers  in favour of different  persons  were executed on the 1st May, 1895, 5th May, 1896, 9th May, 1897, 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

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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,

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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

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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.

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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

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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

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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.