RATI KANTA HALDAR Vs. BURRO

JUDGEMENT

(1.) These Letters Patent Appeals arise out of suits for recovery of rent in respect of a jalkar in the river Ichhamati which again is a part of a bigger jalkar called Jalkar Jainti Gachi. The defendants are the appellants in this Court. The plaintiffs claim rent at the rate of Rs. 1-6-0 per boat and 0-11-0 as per man. The claim is for the period 1344 to 1317 B. S. The plaintiffs claim the right to recover rent as lessees from 91/2 AS. as proprietors of the jalkar. The proprietors are said to be entitled to an exclusive right of fishery in the said jalkar. The remaining 61/2 as. proprietors are not parties to the present suits. The plaintiffs however claim 16 As. rent on the ground that they have acquired a right thereto on the basis of the lease granted by 91/2 As. proprietors and by long possession. The basis of the claim is a settlement alleged to have been taken by the defendants from the plaintiffs. In the plaint the plaintiffs claim either rent on the basis of the settlement or in the alternative if the settlement is not proved, a fair compensation.

(2.) The principal defences to these suits were (1) that the plaintiffs are not the 16 As. proprietors and in the absence of the 61/2 As. co-sharer proprietors the suits are not maintainable. (2) The plaintiffs' right to the several fisheries on the basis of the lease was disputed. (3) It was also asserted that the tenancy set up by the plaintiffs was unknown to law. (4) It was further pleaded. that the defendants as members of the public are entitled to fish in the disputed fishery without payment of any rent, the fishery being a part of the public domain.

(3.) The trial Court was of the opinion that the plaintiffs were entitled to claim 16 As. rent on the basis of their lease from 91/2 AS. proprietors and long possession. On this ground it was held that the 61/2 As. proprietors were not necessary parties. The tenancy pleaded was held to be not unknown to law. The Court found that the settlement by the plaintiffs to the defendants for the period in suit was not proved. The Court, however, passed a decree for the amounts claimed on the ground that even in the absence of proof of tenancy right the plaintiffs should be entitled to damages from the defendants. The suits were accordingly decreed.