MIDNAPORE ZAMINDARY CO LTD Vs. TRAILOKYA NATH HALDAR

JUDGEMENT

(1.) A preliminary objection has been taken to the hearing of this appeal on the ground that, the appeal having been dismissed by an order of Chatterjea and Cuming, JJ., dated the 18th December, 1922, against some of the respondents, it is not competent as against the others. I am of opinion that there is no substance in this contention and it cannot be sustained. We therefore proceed to hear the appeal on the merits.

(2.) In this case, the plaintiff - the Midnapore Zamindary Company - appeals from the decision of the learned District Judge of Murshidabad who has dismissed their suit brought in 1918 against about 120 fishermen. The right of the plaintiff company is that they have a patni and darpatni interest in a certain mehal bearing touzi No. 432 of the Murshidabad Collectorate. They claim to have the exclusive right of fishery in a navigable river, namely, the Ganges over a length of its course approximating to twenty miles; and, as part of this exclusive right of the fishery - although only the navigable channel is in question in this case - they also claim a similar right in the various dobas, bils and jhils which are on the side of the river. Now, it will be desirable to begin by observing that the appeal in this case is a special and limited appeal confined to points of law and that, although a great many documents including some ancient documents have to be canvassed in the course of the case it is not true that the inferences of fact to be drawn from the numerous documents are themselves to be regarded as inferences of law. It is quite true that it is a part of our duty to see that no document has been misconstrued and also to see that the learned Judge of the Court of appeal below has not omitted to take into account all the important and relevant item of evidence. But the case comes before us, not as a case of first appeal like the case of Srinath Roy V/s. Dinabandhu Sen A.I.R. 1914 P.C. 48 which came before the Privy Council, but much more after the manner that would have been applicable if this case had occurred in England and had been tried by a jury at Assizes. Now, applying those principles we have to ask ourselves, what are the points of law on which the judgment of the learned Judge has been challenged?

(3.) Two points of law have been taken before us on behalf of the appellants. It is said that the learned Judge of the Court of appeal below has canvassed the earlier documents which are evidence of the plaintiff's title (such as the Hudabundi of 1795), and the documents containing the result of the Revenue Survey of 1853 and other papers, but that he has omitted to consider these documents in the light of certain intermediate documents which would, in fact, have thrown a light on their meaning. That is the first objection and it has special reference to the question of the determination of the boundaries of the fishery right, if any, mentioned in the earlier documents. The second objection is this:-that whereas on the pleadings there is no dispute as to the identity or the extent of the fishery right, the Judge has entertained a question as to that and has found wrongly against the plaintiffs. Further questions have been raised by the learned Counsel arguing for the appellants. In particular, he has pointed out that the learned Judge has not purported to found his judgment upon any custom and that, in any case, the defendants are a fluctuating body of persons not from some particular village or villages and the exercise of the alleged fishery right can give them no right in law.