LALIT MOHAN RAY Vs. KALI MOHAN SAHA

JUDGEMENT

(1.) The suit which has given rise to this appeal was instituted by the appellants as plaintiffs for a permanent injunction restraining the defendants from constructing a bridge over a watercourse which goes by the name of Haridhoa and for a mandatory injunction ordering the defendants to remove such portions of the bridge as have been already constructed. The appellants have been unsuccessful in both the Courts below. It is not necessary to repeat here the facts of the case which have been set out in detail in the judgments of the Courts below. The plaintiffs claim is based upon the allegation that the channel in question, or at least the part of it from its mouth on the Meghna river up to the point where the bridge is being constructed, is a public navigable river. The defence case is that the channel is not a river but only a khal which is neither tidal nor navigable all the year round, that for about six months in the year the channel remains fordable and during the remaining months only small boats can pass through it, that the bed of the channel is not the property of the Crown, and the public have no rights of navigation over it.

(2.) The appellants contentions, in substance, are (.) that the Court's below, in their endeavour to find out whether the channel is a navigable one or not, have applied to the case a test which is not the real test for determining such a matter; (2) that the District Judge has been in error in supposing that the Court, in the present case, is not at all concerned with an investigation into the past history of the channel but should confine itself to an examination of its actual condition at the present moment; (3) that certain documents from which an inference in plaintiffs favour as regards the navigability of the channel and the rights of the public in it might reasonably have been drawn have not been properly construed and their legal effect has been misconceived; and (4) that certain other documents have been ignored or their legal bearing on the question has been overlooked.

(3.) The findings of the Courts below may be conveniently summarized here. The Munsif after a somewhat elaborate research arrived at the conclusion that the channel Haridhoa, variously stated to be a river or a khal, was at one time a branch of the big river Brahmaputra which had died out at various parts even before the Permanent Settlement; that at the time of Major Rennell's Survey (1764-67) Haridhoa was connected with the river Lakshya by which name a portion of the river Brahmaputra used to be called: that such connexion has Haridhoa had with Lakshya gradually ceased in course of time; that there was positive evidence (Survey Maps of 1911-14) that about the years 1911-14 Haridhoa had no connexion at all with the river Lakshya during the dry season; and that at the present moment the channel Haridhoa is not a channel connecting two navigable streams at its two ends but that it gets its supply of water from the Meghna alone at one of its ends. He then found that the channel follows a serpentine course, meeting with obstructions, natural as well as artificial, at various points, and so only a part of it at its mouth on the river Meghna is under the influence of the tides in that river. On the question of the present condition of the river he was not prepared to accept in its entirety the evidence adduced on either side. There is just a little conflict in the conclusions that he has drawn from the evidence which he was prepared to rely on. But taking the finding which is most in favour of the appellants and overlooking the findings which may detract from it to their disadvantage it runs thus: The portion of the river from the Meghna to the railway godown is tidal and at low t (SIC)de in the dry season is navigable for small boats and during high tides for little bigger boats. The portion of the river from the railway godown up to Putia hat is navigable for only very small boats and this portion of the river is not tidal.