RAJA BRAJA SUNDAR DEB v. MONI BEHARA AND OTHERS
Citation: [1951] 1 S.C.R. 431; 1951 INSC 22
Court: Supreme Court of India
Bench: MEHR CHAND MAHAJAN , BIJAN KUMAR MUKHERJEA, N. CHANDRASEKHARA AIYAR
Judgment date:
Case summary
1951 INSC 22. Supreme Court of India judgment dated 1951-03-27. RAJA BRAJA SUNDAR DEB v. MONI BEHARA AND OTHERS. Read the judgment and case details on...
Judgment text
RAJA BRAJA SUNDAR DEB ti. MONI BEHARA AND OTHERS [MEHAR CHAND MAHAJAN, MuKHERJEA and CHANDRASEKHARA AIYAR JJ. ] Fisheries-Fisherm;n of particular villages allowed to fish for . several years by zemindar-Acqu1stion of right to fish-Presump- Jion 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 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 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 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 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 enjov-ment of the fishery was not true and that the defendants' right to fish in the disputed fisherv was esta-blished. One would have thought that in view of this finding the plaintiff's suit would have been dismissed 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 subsist-ed 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 determin-ing 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 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 on payment of rent but that the prdent defendants were not the descendants of those fishermen who were occa-sionally 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 Auctuat-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 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 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 docu-ment 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 indi-cation 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 that the rent payable was not liable to enhance-ent 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 know-ledge 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 Masudan-nisa 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 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 f those proceedings. · The result therefore is that the <lefcndants 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 fishery. 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 ~ourse of the river and that the fishery now in , dispute is not the same fishery which was in dispute on the proceedings of 1918 cannot be sustained. We see no reason to differ from the view of the High Court, 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 Charkhati 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 argu-ment is not tenable in view of section 145, Criminal . Procedure Code,. proceedings. Moreover an exclusive: right of fishing in a given place means that no other person has a coextensive right with the claimant of the: right. The niere 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 die 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 Daisakh) during which season defendants l, 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 fishermen, on payment of a rent of Rs. 135-7-0 per year till it is enhanced in due · course ? f law o~ for food cause they lose their right to remain m possess10n o the fishery ;· · . (ii) The defendants are · restrained. ftom interfer-ing with his right· of fishing during the months during which the defendants named above have not the exclusive right of fishing; (iii) That defendants other than defendants I, 2, 3, 5, 6, 7, 9 and 12 have no right of any kind whatsoever . RAM SINGH "· THE STATE Of DELHI AND ANOTHER BALRAJ KHANNA t'.
THE STATE OF DELHI AND ANOTHER RAM NATH KALIA. • t'. THE STATE OF DELHI AND ANOTHER [SHRI HARILAL KANIA c. J. , PATANJALI SASTRI, MEHR CHAND MAHAJAN, S. R. DAs and VIVIAN BosE JJ. J Constitution of lnaia, Arts. 19(1) & (2), 22 (5)-Freedom of speech-Preventive detention to prevent speeches with a view to main-tain public ordei-Omission to state objectionable passages ill grounds supplied-Legality of detention. The District Magistrate of Delhi, "being satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so" ordered the detention of the petitioners under s. 3 of the Preventive Detention Act, 1950.
The grounds of detention communicated to the petitioners were "that your · speeches generally in the past and particularly on the 13th and 15th August, 1950, at public meetings in Delhi has been such as to excite disaffection between Hindus and Mussalmans and thereby prejudice the maintenance of public order in Delhi and that in order to prevent you from making sucft speeches it is necessary to make the said order. " The petitioners contended that under the Constitution the maintenance of public order was not a purpose for which restriction can be imposed on the freedom of
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