PARAMANANDA MOHANTY Vs. BIRA BEHERA

JUDGEMENT

(1.) This appeal by the defendants, arises but of a suit for recovery of damages for wrongful catching and removal of fish from a tank leased to the plaintiff. The plaintiff claimed Rs 7,000/-. The claim was decreed to the extent of Rs. 4,500/- with proportionate costs.

(2.) Plaintiff and defendants 1 to 11 are residents of village Chhelia under Madhapur Gram Panchayat. There is a big tank locally known as Bada Pokhari in village Chhela under the management and control of Madhapur Gram Panchayat. The fishery right of this tank is leased out from time to time on each occasion for a term of three years, by public auction held by the Gram Panchayat. The lease granted in favour of defendant no. 1 expired on 31-3-62. The tank was put to auction on 5-4-62, and the plaintiff gave the highest bid for a premium of Rs. 33/-per year. He was granted lease for three years, that is 1962-63, 1963-64 and 1964-65 expiring at the end of March 1965. The plaintiff deposited the first year's premium and was granted the patta. But on an application by defendant no. 1, the outgoing lessee, he was allowed time till 20-4-62, to catch the fish reared by him. Thereafter on 21-4-62, the plaintiff put fish fries in the tank. It is alleged that on 8-6-63, the defendants with a malicious intention of putting the plaintiff to loss filed an application before the S.D.O.-Cum-Executive Magistrate, first class for taking action under S. 145 Cr. P.C. alleging that the villagers of Chhelia had taken lease of the tank through the plaintiff, but the latter was falsely claiming to have taken lease in his personal capacity. The S. D. O., Cum-Executive Magistrate, first class, by his order dated 29-11-63, initiated a proceeding under S. 145 Cr. P. C. and attached the tank prohibiting both the parties from catching fish. This proceeding was finally disposed of on 30-3-65, just a day before the expiry of the plaintiff's term of lease, declaring the plaintiff's possession over the tank and further observing that with effect from 1-4-65, the Madhapur Grama Panchayat would be at liberty to lease out the fishery right of the tank. Thereafter during the period from 9-5-65 to 23-5-65 the villagers of Chhelia including the defendants 1 to 11 are alleged to have caught and carried away about 60 maunds of fish valued at Rs. 6,000/-. The plaintiff contended that there was still about 10 maunds of fish left in the tank the value of which would be about Rs. 1000/-. His contention was that if he had not been restrained by the preliminary order under S. 145 Cr. P. C. he would have caught the fish from the tank valued at Rupees 7,000/- and that due to the malicious action of the villagers of Chhelia he was deprived of the same. So, he brought the suit for recovery of Rupees 7,000/- from the villagers of Chhelia through the defendants, representing the villagers.

(3.) The case for the defendants was that the villagers of Chhelia used to take lease of the fishery right of the tank through any one of them and utilised the sale proceeds of the fish for the development of the village school. Accordingly the lease was taken in the name of defendant No. 1 and the term of lease expired on 31-3-1962. But the villagers had not been able to catch the entire fish reared by them. When auction for fresh lease was advertised the plaintiff approached the villagers for taking the lease in his name and undertook to manage the affairs of the school with the income from the lease. The school Managing Committee approved the plaintiff's proposal in a meeting held on 1-4-1962. Accordingly the plaintiff gave the bid on behalf of the villagers in the public auction held on 5-4-1962, and defendant No. 1 deposited a sum of Rs. 20/- from the village fund towards the bid amount. But subsequently the plaintiff falsely claimed to have taken the lease in his personal capacity. So the villagers had to file the application before the S. D. O. for initiation of the proceedings under Section 145 Cr. P. C. After expiry of the plaintiff's term of lease the villagers with the permission of the Grama Panchayat caught fish weighing three maunds from the tank. It was accordingly contended that the defendants were not liable for damages.