RAJA KRITANAND SINGH BAHADUR Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This appeal is by defendants 1 to 3 in a suit instituted by the Secretary of State for India in Council on 27 March 1929, for recovery of nine Jalkars or Fisheries. They are known as (1) Patalchandi (2) Nimajole (3) Chandmari (4) Gangaprosad (5) Mayamari (6) Goaltuli (7) Laldhubri (8) Tulsiganga. The ninth Jalkar is over a portion of the river Bhagirathi which for brevity's sake will hereafter be called by the name of Ganga Bhagirathi or Bhagirathi simply. At the trial the plaintiff gave up his claim to Goaltuli and Laldhubri on the admission that they are no longer fisheries, being now dry lands. Tulsiganga is a long narrow channel, but the remaining five jalkars are in beels or almost land locked waters connected by narrow channels or daras with the river Bhagirathi, except Mayamari which is connected with another river called Pagla. The plaintiff claims the exclusive right to fish not only in those beels but also in some of those connecting channels or daras.

(2.) There were five defendants to the suit. The first three are the proprietors of eight annas share and the last two of the remaining eight annas share in a zemindary known as pergunah Ekbarabad formerly touzi No. 1937 of the Purneah Collectorate, now No. 65 of the Maldah Collectorate, which was permanently settled with their predecessor-in-interestRaja Vedananda Singha Bahadur on 16 June 1819, under Regulation, I of 1793. Before the said permanent settlement the said pergunah appears to have been settled successively for terms of five years with Maharaja Radha Nath of Dinajpore and others till 1809 when the decennial settlement was concluded with Dular Singh Choudhury under Regulation, 8 of 1793. The sites of the aforesaid five beels, Patalchandi etc. are within the geographical limits of the zemindary Pergunah Ekbarabad and the channel Tulsiganga and the material portion of the river Bhagirathi, which is not navigable at all seasons of the year, also flow through their zemindary. The learned Subordinate Judge passed a decree in favour of the plaintiff in respect of the seven jalkars, the claim to Goaltuli and Laldhubri having been, as we have already stated, abandoned by the plaintiff. Defendants 4 and 5 have not appealed.

(3.) A several fishery known as "Pergunah Gangapat Islampore" was granted by Nawab Alivardi Khan, a Mahomedan ruler of Bengal in pre-British times, to the grandmother of one Hoolaus Chand. This grant was confirmed by Nawab Mohabat Jung in favour of Hoolaus Chand's father Bhagmal. Before 1789 the Government gave talooki settlements to Hoolaus Chand, i.e., settlement on the basis that he was the proprietor. When the question of decennial settlement under Regulation, 8 of 1793 was being considered, the Collector wrote a letter on 2 October, 1789 to the president and members of the board of revenue (Ex. Q B 1) We have marked the paper books thus : Part I as A Part II Vol. I as B and Part II Vol. 2 as C. to the effect that Hoolaus Chand was not really a talookdar but subordinate tenure holder under the zemindars of Conkjole. The Board of Revenue, however, directed the Collector to conclude the decennial settlement with him with the reservation that in case the zemindars of Conkjole established their claim within six months the settlement to Hoolaus Chand would be nullified and settlement would be made with the former. By a document dated 15 November 1790, the decennial settlement of the Jalkar "Pergunah Gangapat Islam-pore," was concluded with Hoolaus Chand, (Ex. C (1) B 4) from 1197 to 1206 B.S. and the zemindars of Conkjole not having preferred thereafter any claim to have settlement of the said mehal, the permanent settlement under Regulation 1 of 1793 was concluded with Hoolaus Chand from 1207, at an annual revenue of Rs. 3048-7-8.1 (sicca). On 1 January 1800 Hoolaus Chand executed the permanent settlement kabuliat (Ex. C; B42). In the decennial and permanent settlement kabuliats no detailed specification of the jalkar was given, save and except that it was described by the name "Jalkar Pergunah Gangapat Islampore." It is admitted in the case that an exclusive right of fishery was granted by the Crown to Hoolaus Chand over waters which then went by the name of Pergunah Gangapat Islampore. There is also no controversy that the said right was conferred on him on the waters of the navigable stream of the Ganges from the up stream limit at Pointy to the down (sic) am limit at Sooty. Both these villages are shown in the map prepared by Major Rennel between 1767 to 1772 (Ex. 6(C); Map No. 8). The controversy is as to whether the said jalkar covers waters claimed in the suit which are not in the bed of the navigable river Ganges.