SECY OF STATE Vs. DEBENDRA LAL KHAN

JUDGEMENT

(1.) The only question which has been argued before their Lordships in these consolidated appeals is whether the High Court of Judicature at Calcutta have rightly decided that Debendra Lal Khan, the plaintiff in the suit, "has right by adverse possession to the fishery" in a portion of the river Cossye. The Secretary of State for India in Council (hereinafter referred to as "the Crown"), who is the defendant in the suit, contests in his appeal the soundness of this decision. Debendra Lal Khan (hereinafter referred to as "the plaintiff"), besides supporting the decision of the High Court in his favour, raises in his appeal certain other issues which have been decided against him. His counsel however intimated that in the event of the decision of the High Court with regard to the fishery in question being upheld by their Lordships, the plaintiff did not propose to proceed with his appeal.

(2.) The river Cossye, also known as the Kangsabati, rises in the hills of Chota Nagpur, and is a tributary of the Haldi which flows into the Hoogly. It has been found both by the Subordinate Judge and by the High Court to be a "large navigable river" within the meaning of the Bengal Regulation 11 of 1825. Prima facie therefore the property of the alveus and of the fishery is in the Crown. The dispute relates to the fishery in some twelve to fourteen miles of the river in the District of Midnapore extending from Kankabati Ferry Ghat eastward and down stream to Pathra Teroohani, with the exception of a short stretch of the river in the vicinity of a dam known as the Midnapore Anicut, the fishery in which is admittedly still the property of the Crown. By S. 28, Limitation Act, 1908, it is provided that : "at the determination of the period (by the Act) limited to any person for instituting a suit for possession of any property his right to such property shall be extinguished."

(3.) By Art. 149, Sch.1 to the Act the period limited to the Crown for instituting a suit is 60 years from the time when the period of limitation would begin to run under the Act against a like suit by a private person. In the case of a suit by a private person for possession of immovable property, or any interest therein not otherwise specially provided for, the time when the period of limitation would under Art. 144 begin to run is the time when the possession of the defendant becomes adverse. By S. 2 (4) : '' ?defendant? includes any person from or through whom a defendant derives his liability to be sue" and by S. 2 (8): '''plaintiff? includes any person from or through whom a plaintiff derives his right to sue."