ARJUN KAIBARTA Vs. MANORANJAN DE BHOUMICK

JUDGEMENT

(1.) These appeals are directed against the decision of the learned Subordinate Judge, Third Court, Dacca, substantially affirming the decision of the Munsif, First Court, Narayanganj, in four suits instituted by the plaintiffs, for recovery of damages against the defendants, on the allegation that they caught fish in a part of the public navigable river Meghna, specifically described in the plaints, the exclusive fishery in which had been granted to Nawab Sir Ashanulla of Dacca, and of which the plaintiffs were in possession as patnidars. The case of the plaintiffs was that the Nawab had, by virtue of a grant from the Crown, an exclusive right of fishery in the part of the river in question. The defendants in the suits denied that plaintiffs right to the fishery and asserted that Nawab Sir Ashanulla had not obtained a grant from the Crown, so far as the exclusive fishery was concerned, and the plaintiffs could not therefore derive any title to the same by a settlement in their favour. It was asserted by the defendants that they had acquired an easement right to fish in the jalkar in question, and that they had also a customary right to do so. The case of the defendants was that a very large number of people of various districts openly catch fish without making any payment to anybody, as they had a right to catch fish in the jalkar in question as an easement as also by custom. The Court of first instance and the Court of appeal below agreed in deciding the cases, so far as the material questions in controversy were concerned, in favour of the plaintiffs: the variation made by the lower appellate Court in the decision of the trial Court related only to the measure of damages. The defendants have appealed to this Court.

(2.) In these appeals it has to be considered, first, whether the plaintiffs-respondents, could claim a right to the jalkar in in a public, navigable river as patnidars under the grantee under the Crown; whether there was a grant by the Crown of an exclusive fishery, which had been established by the plaintiffs, so as to enable them to assert their rights as patnidars under the grantee from the Crown. It must be taken to be established that an exclusive right of fishery in public, tidal and navigable rivers may be granted by the Crown to private individuals. As their Lordships of the Judicial Committee of the Privy Council have laid down in the case of Srinath Roy V/s. Dmabandhu Sen AIR 1914 PC 48, accepting the rule laid down by this Court in the case of Hori Das Mal V/s. Mahomed Jaki (1885) 11 Cal 484, the evidence of a Government grantee of an exclusive fishery in navigable waters ought to be conclusive and clear; but, in so far as such could be expected to be forthcoming as to particular grants, which were old, the evidence must be sufficient to show that the competent authority?the Government of India?in right of the Crown did actually grant a jalkar right of several fishery. In the cases before us, the Courts below have carefully reviewed the materials placed before the Court, and have come to the conclusion, on those materials, that there was direct and conclusive evidence of grant by the Crown ; that Nawab Sir Ashanulla of Dacca obtained a grant from the Crown, and then leased the jalkar to the plaintiffs. Our attention was drawn to two of the documents bearing upon the question of a grant from the Crown?Exs. 2 and 41 in the cases. These two documents, taken together, indicate that the exclusive fishery in question was intended to be sold and was sold along with a zamindari mahal in the year 1863 to Nawab Sir Ashanulla, from whom the plaintiffs obtained a patni settlement of the jalkar.

(3.) The documents, by themselves, may not be conclusive evidence of the grant from the Crown, but taking them into consideration, along with the other materials on the record, including judgments of competent Courts, directly bearing upon the questions in controversy, the Courts below have come to the decision that the case of a Crown grant, as asserted by the plaintiffs, was established. As was observed by their Lordships of the Judicial Committee of the Privy Council in the case of Wall Muhammad V/s. Muhammad Bakhsh , where the question to be decided is one of fact, it does not involve an issue of law merely because the documents which were not instruments of title, or otherwise the direct foundations of rights, but were merely historical materials, have to be construed for the purpose of deciding that question; and a second appeal would not lie because some portion of the evidence might be contained in a document or documents and the first appellate Court had made a mistake as to its meaning. Considered in the light of these observations, the decision concurrently arrived at by the Courts below on the question of fact, whether there was the grant of an exclusive fishery by the Crown, must be taken to be conclusive as between the parties concerned. The question of the plaintiffs title by virtue of a settlement from the grantee of an exclusive fishery from the Crown, must, accordingly, be taken to have been established.