PERIASAMI Vs. KANDAPPAN

JUDGEMENT

(1.) ON the view we take of this case, it seems to us that this reference is unnecessary. Apparently, the learned Judge who made this reference thought that there was conflict of decisions on the question of public policy in allowing grant or acquisition, by prescription through long immemorial usage or custom, of fishery right in territorial waters in the sea coast of the State. On that question, in Viresa v. Tatayya, (1885) ILR 8 Mad 467, decided by Turner, C. J. and Muttusami Ayyar, J., it was held that the right of the public to fish in tidal waters in British India might be curtailed by an exclusive privilege acquired by grant or prescription by certain persons within certain limits, and that such an exclusive privilege being an infringement of the general rights of the public, it could be acquired by a period of enjoyment which would suffice for the acquisition of an easement against the Crown. That was a case of tidal river. In the district of Krishna, there was a lake by name Kolleru, whence a stream, Upputeru, took its rise and flowed into the sea, being throughout its whole course tidal. At a distance of 6 to 8 miles from the head of Upputeru, there was a village called Kondangi which was the residence of the plaintiffs. At a particular season, the plaintiffs threw nets across the river in the neighbourhood of their village and fished and they did so to prevent any other person from placing similar nets at any point between their village and the place at which the stream issued from Kolleru lake. Their complaint was that the defendants in that litigation interfered with the exercise of that right and prayed for a perpetual injunction restraining the defendants from interference. The learned Judges examined the question whether such an exclusive right, as was claimed by the plaintiffs, was given at all or acquired. Adverting to the law in England on the subject, the Court said -

(2.) WE do not think that this case was at all in conflict with the earlier decisions. It was not decided in that case that the order set aside was opposed to public policy as such, because it was only a dispute between the two parties and the public in general was not involved. We are of opinion that in none of the three cases we have referred to, each of which was concerned with, a dispute as between two sets of parties each of whom claimed exclusive right to fish in tidal rivers or territorial waters, the question of public policy forbidding fishing right in tidal rivers or territorial waters was raised or decided. No doubt. ILR 58 Mad 876 : (AIR 1935 Mad 350) considered that none could acquire a right, exclusively against the public or any other person, to fish in any particular area of the open sea, or in that part of it within three miles of the shore, known as territorial waters. But the question was not adequately considered and the decision could be rested on the ground which the learned Judges had given. The question of public policy being opposed to acquisition of a right to fish in territorial waters did not arise and the observations, which we have referred to in ILR 58 Mad 876 : (AIR 1935 Mad 350) could only be taken as obiter. We say so, particularly because that was a case between two sets of parties not involving the general public. It was for these reasons we mentioned at the outset that there was no conflict between any of the three decisions.

(3.) THE parties in this case having openly come to a compromise, which was embodied in a decree in O.S. 96 of 1946, on the file of the Court of the District Munsif, Pattukottai, we are of the view that they are bound by it and the compromise was not opposed to public policy.