BRAJENDRA KISHORE ROY Vs. ISWAR KAIBARTA

JUDGEMENT

(1.) Plaintiffs 1 to 25 are proprietors of a beel of which they have in 1324 granted settlement to plaintiff 26 for catching fish near the banks by setting up dalkatas or kheos (twigs and branches of trees put up as a contrivance for intercepting the fish). They instituted this suit in 1919 for restraining the defendants from catching fish in the said beel on certain declarations, the object of which was to negative a right of fishing which the defendants set up, and they also claimed damages from the defendants for having caught fish from the beel under colour of such a right. The Subordinate Judge having dismissed the suit, the plaintiffs have preferred this appeal. The right which the defendants claimed is described in the written statement of the answering defendants in these words: Para. 16.-The answering defendants are dealers in fish and fishing is their only means of livelihood. Thinking that it would be convenient to earn their livelihood by fishing, the predecessors of the answering defendants came to reside in the vicinity of the heel in dispute and erected houses there, and the answering defendants and numerous other men of the Kaivarta class and their co-villagers and residents of the adjoining villages, who are also fishermen, have been earning their livelihood by catching fish by means of various kinds of floating nets in the said jalashay from generation to generation and from time immemorial, openly and as of right without interruption and peacefully. Thus the jalkar of the said beel is the absolute right of the answering defendants and their neighbours. To whomsoever the bed of the said beel may belong the answering defendants and their neighbours have been enjoying the jalkar right in the said beel from generation to generation and from time immemorial. No one had or has any right to object thereto. Para. 17.-The answering defendants have been catching fish in their respective kheos by erecting kheos by dalkata in the places near the banks of the said beel from generation to generation and from time immemorial. And for the convenience of catching fish in their respective kheos, they have been erecting khalas on the banks of the beel and have been using and possessing their respective kheos and khalas. And in respect thereof, every one has been paying a jama of 8 annas year by year to the owners of the bed of the said beel from generation to generation according to long-standing usage from time immemorial. The maliks have no right to claim any money in excess of the said amount of 8 annas. The said jama is fixed for ever and is unchangeable. The answering defendants and their predecessors have been enjoying the right to erect kheos and khalas as above from time immemorial peacefully, without interruption, as of right and openly. The maliks have no right to jeopardise that right. The places of those kheos and khalas are fixed and demarcated for ever.

(2.) It should be stated at the outset that the two paragraphs of the written statement just quoted should be read together, and that though in para. 16 it was stated that the jalkar of the beel belonged to the defendant in absolute right, what was really claimed was the right to fish at the places and in the manner specified in para. 17. The Subordinate Judge found as a fact that the defendants and their forefathers have been fishing in the beel from time immemorial by establishing kheos in its sides on payment of 8 annas per head of the persons fishing and that each defendant and his father, grandfather and so on have been in possession of each particular kheo on such payment. He held that it was a customary right which the defendants were thus enjoying. He also held that from such long user a lost grant or some legal origin might be presumed, and that inasmuch as right of fishery is immovable property the defendants having paid rents all along and regularly were people with the status of settled raiyats and the plaintiffs were incompetent to take khas possession of the kheos without determining the rights of the defendants in a legal manner. He held further that the defendants having had possession of the different kheos separately and continuously as an interest in land i.e., of a right of fishery, for a period of long over 12 years before the beel was attached in 1902 as a consequence of proceedings under Section 145 between the plaintiffs and the proprietors of a neighbouring estate, the suit was barred by limitation, estoppel and acquiescence.

(3.) A very unsatisfactory feature of this case is that neither in the pleadings nor in the evidence has any attempt been made to describe, elucidate or establish the different elements of the right that was claimed, and nowhere has it been clearly, definitely or expressly said what the origin of the right claimed was. The witnesses examined in support of the claim have spoken to one or other of the characteristics of the right and it is only by taking into consideration the cumulative effect of their testimony that one has got to form an idea of the nature of the claim. The general trend of the evidence, it cannot be disputed, establishes that the defendants and their ancestors have been fishing in the respective kheos in the manner indicated above, without any interruption or opposition and on payment of 8 annas per head for each person fishing. To resist the plaintiffs claim for injunction however a right on the part of the defendants to fish in the aforesaid manner will have to be found.