KISHORI RAM MALLA Vs. ABDUL MAJID

JUDGEMENT

(1.) THIS is an appeal from the judgment and decree of the Addl. Sub Judge, A. V. D., dated 31st July 1947 in a suit for compensation for wrongful catching and removal of fish by the defendant from a fishery leased to the plaintiff. The plaintiff claimed Rs. 5380 -1 -0. The claim was decreed to the extent of Rs. 4911 6 -0 with proportionate costs. The decretal amount was to carry interest at the rate of 2 per cent, per annum from the date of the decree till realisation. The cross -claim of the defendant was disallowed.

(2.) PLAINTIFFS case was that he was the lessee of fishery Mahal No.11 in the Sadiya Frontier Tract of the Lakhimpur district for three years, (1944 -45, 1945 -46 and 1946 -47) in succession. The lease in each year commenced from 1st of April, Bardighalibeel was alleged to be included in plaintiff's fishery Mahal No. 11. Defendant was the lessee of Songkhong Mahal No. 8 in the said tract for the year 1941 -45. The two fisheries were said to be at considerable distance from each other. On 21st February 1945 defendant sent about 75 or more fishermen to collect fish from the Bardighalibeel and they at his instance caught and removed fish from that beel from 21st February to 25th February (both days inclusive) and from 3rd March to 11th March (both days inclusive), The fish was sent to Dibrugarh market where it was sold. Plaintiff reported the matter to the Superintendent of Police, Lakhimpur and the Political Officer, Sadiya Frontier Tract, on 21st February 1945. On 24th February, plaintiff's uncle went to the site and found the fishermen busy catching fish in the beel in question. They admitted that they had been fishing in the beel since 2lst February at the instance of defendant in this case. On that day they gave an undertaking to deliver all fish caught from the beel to the plaintiff, in future. A writing Ex. 1, was executed. In the document it was stated by the executants that they were all defendant's men and that they were catching fish in Borbeel under his orders. On their learning that Borbeel was settled with Abdul Majid and not with Kishori Ram Malla, defendant, they agreed to send fish to the town to plaintiff's men on receipt of a certain share agreed to between the parties. They further promised to realise the price of fish sent on previous days to the defendant from him. Six out of the fisher men signed the document as executants and it was attested by witnesses.

(3.) DEFENDANT repudiated the claim. He averred that there was no beel by the name of 'Bardighali' and no such beel was included in plaintiff's fishery. He denied that his men caught fish illegally or dishonestly from the alleged Bardighalibeel and claimed that the water from which fish was caught by his men from 21st February onwards was included in his Songkhong Mahal No. 8. He admitted receiving a notice dated 21th February 1945 from the Political Officer Sadiya Frontier Tract to stop fishing, but alleged that he protested against the order by sending a telegram that he had been fishing in the waters covered by his lease. Liability for compensation under both heads of claim was denied. Exhibit 1, referred to in the plaint, was said to have been obtained by intimidation. Defendant preferred a counterclaim of Rs. 631.7 -4 on the ground that plaintiff had caught fish from the disputed water on 26th February, 27th February and and March 1945 without any right.