CHAND MIA MUNSHI Vs. TUKAMIA

JUDGEMENT

(1.) This appeal is against the judgment and decree of the District Judge of Noakhali reversing those of the Munsif of Lakhmipore. The plaintiffs are the appellants and the appeal arises out of a suit for confirmation of possession after declaration of the plaintiff's title to the tank in suit.

(2.) The cause of action arose in this way : There was a record-of-rights of the mouzah in which the tank is situated; under Chap. X of the Bengal Tenancy Act. The tank was recorded as within the tenancy of the plaintiffs, but it was also recorded that the defendants would be entitled to rear fishes and use the water of the tank. With regard to the use of the water of the tank there is no question and the plaintiffs had not disputed that right. But the plaintiffs say that the defendants have no right to rear fishes in the tank and the record-of-rights is erroneous to that extent.

(3.) The suit has been brought for a declara tory decree as provided in the proviso to Section 111-A of the Bengal Tenancy Act. The defendant No. 1 contested the suit, and he pleaded that he and his predecessors before him were the proprietors of 6 annas share of the tank and another person Malika Banu was the proprietor of the remaining 10 annas shave and he further pleaded that he and his ancestors have been exercising possession over the 6 annas share of the tank for the last 50 years by using its water and rearing and catching fishes. The learned Judge on appeal has dismissed the suit entirely, and the first ground on which he holds against the plaintiffs is that they have no cause of action. He thinks that as the record- of-rights shows the plaintiffs title and possession, the mere fact that the record shows the defendants as having got the right complained of does not give them a right to bring the present suit. We are unable to agree with him with regard to this proposition. The record, if it is allowed to stand, restricts the absolute ownership of the plaintiffs and disentitles them from excluding the defendants from exercising some acts of possession. They have therefore the right to complain against the entry in the record-of-rights and this gives them a good cause of action.