RAM DIN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS second appeal arises out of a suit for permanent injunction which the plaintiffs-appellants filed against the State of Uttar Pradesh. The plaintiffs claimed that their ancestors and thereafter the plaintiffs themselves were Adna-Maliks of the village Garhmau situated in district Jhansi. The Ala-Zamindars were also there who were the proprietors of the said village. There is a tank situated in the said village which had been used as a fishery for a very long time past. The plaintiffs' predecessors had been exercising the right of fishing for about half a century in the said tank and the plaintiffs claimed that as the descendants of the said ancestors and as sub-proprietors before the abolition of zamindari, the plaintiffs had also been exercising the said right. However, after the abolition of zamindari the Executive Engineer, Betwa Canal Division began to obstruct the plaintiffs from exercising the right of fishing in the said tank. Hence the suit had to be filed wherein the plaintiffs claimed that the abolition of zamindari had not affected their right of fishing in the said tank. The defendant, State, contested the suit inter alia, on the ground that even if the plaintiffs had such a right, the same stood extinguished with the abolition of zamindari. The courts below accented the plaintiffs' claim that before the abolition of zamindari they or their predecessors had been fishing in the said tank and had been appropriating other produce from the said tank. The lower appellate court, however, held that for the last several years before the institution of the suit, the plaintiffs had not been exercising the said right and they were not in possession of the tank on the date when the suit was instituted and were not exercising any right of fishing on the said date. Both the courts below, therefore, dismissed the suit. In the instant second appeal, Shri K.S. Saxena, learned counsel for the plaintiffs-appellants, contained that the courts below were not correct in holding Section 6 read with Section 4 of the U.P. Act I of 1951 extinguished the rights of the plaintiffs to fish in the tank. He relied on Section 8 of the said Act which lays down as follows: - "Contract entered into after August 8, 1946, to become void from the date of vesting: Any contract for grazing or gathering of produce from land or the collection of forest produce or fish from any forest or fisheries entered into after the eight day of August, 1946, between an intermediary and any other person in respect of any private forest, fisheries, all land lying in such: estates shall become void with effect from the date of vesting." He also contended that a right of fishing should be, deemed to be something which can stand apart from an interest in land and, therefore, the abolition of the interest of the intermediaries in the land brought about by the Notification under Section 4 did not affect the right of fishing enjoyed by the plaintiffs. In my opinion, Section 8 has no relevance to the facts of the instant case. It makes certain contracts entered into after August 8, 1946, void from the date of vesting. His contention is that the contracts which were entered into before the said date continued to subsist even after the date of vesting. In the instant case, we are not considered with any contract between the parties and the rights which the plaintiffs or their predecessors enjoyed is not on the basis of any contract. So far as the other contention of Shri Saxena is concerned, in my opinion, the plaintiffs themselves set up their right on the basis of their claim to be the sub-proprietors of the land in question. The extract of the Dasturdehi on which reliance has been placed also refers to the plaintiffs' status as the Malik Adna and thus courts below were right in holding that the right which the plaintiffs claimed in the suit was a right in respect of land and was being claimed by them in their status as sub-proprietors of the land. Section 6 (a) (i) has abolished all the rights, title and interest of all the intermediaries in every estate including fisheries and tanks, In the definition of 'intermediaries' in Section 3 (12) 'sub-proprietors' have- been specifically included. In the Dasturdehi the respective rights and liabilities of the proprietors and the sub-proprietors in respect of the tank in question have been mentioned. It, therefore, seems to me a clear case where the rights which, as I stated above, were enjoyed by them or their predecessors by virtue of their status as the sub-proprietors and the extinction of all the rights of the intermediaries brought about by the issuance of the Notification under Section 4 meant the extinction of all such rights. Certain cases were cited in the courts below where the dispute was about the ferry rights etc. but those cases the courts below have correctly distinguished as not applicable to the instant case. The rights in respect of ferries etc. have nothing to do with the abolition of zamindari and, therefore, those cases will not be applicable to the instant case. THIS appeal fails and is hereby dismissed but in the circumstances I shall make no order as to costs.