MT BIBI SAFIA Vs. SAHDEO SINGH

JUDGEMENT

(1.) This Is a Letters Patent appeal from a decision of Agarwala, J. affirming concurrent decrees of the Courts below passed in favour of the defendants.

(2.) The plaintiffs are proprietors of Mauza Alipur Sohra, and in their capacity as proprietors they brought the suit out of which this appeal arises claiming damages in respect of fish taken by the defendants from a ditoh situate in the village. They also claimed a declaration that the defendants had no right to catch and carry away fish from the said ditch. The suit was brought against a number of persons under Order 1, Rule 8, Civil P.C., as representing the villagers of Alipur Sohra. The ditch in question is plot No. 386 and is recorded in Khata No. 404 as gair mazrua- am. This ditch becomes flooded occasionally, and when such floods occur fish come into the ditch, and the suit is concerned with a right to catch and take away such fish. Fish do not appear in the ditch every year, but the evidence showed that there were fish in the ditch in the years 1329, 1331 and 1339 F. They did not appear again in the ditch apparently until 1344 F. (1937). In this latter year the villagers caught and took away fish from the ditch, hence the suit. It was conceded by the plaintiffs that the villagers were entitled to take water from the ditch and mud or earth from the bed of the ditch. The villagers in evidence attempted to show that they had also a customary right to take away fish from the ditch; but this was found not proved by the Courts below. However, both the learned Munsif and the learned Subordinate Judge were of opinion that as the ditch was gair mazrua-am the plaintiffs had lost control over the same and, therefore, could not prevent the villagers from catching and taking away the fish which occasionally appeared in the ditch. It would appear that the number of fish taken away was very small, because the learned Judge observed that if he had had to assess damages he would have assessed the same at Re. 1.

(3.) In second appeal it was contended on behalf of the plaintiff-appellants that the Courts below were wrong in holding that the plaintiffs had lost control over this ditch. On the contrary, it was urged that the plaintiffs could exercise all rights of ownership over the ditch which were not inconsistent with the admitted rights of the villagers in the ditch. It was urged that the rights of the villagers were limited, namely, to take earth, mud or water from the ditch. The plaintiffs could not do anything which interfered with these rights, but they had every right to perform acts of ownership which did not interfere with the exercise of such rights. The learned Single Judge, however, felt himself bound by authorities of this Court and held that the plaintiffs had no exclusive right to take fish from this ditch and had no right to prevent the villagers from so doing. He accordingly dismissed the appeal.