(1.) The river Jhinai is a natural stream which rises from the river Brahmaputra and falls into the river Yamuna, which is another name for the main branch of the river Brahmaputra. In the past it was navigable throughout the year but lately on account of the formation of a sand bank near its confluence with the river Brahmaputra and by reason of its bed becoming higher in level by deposit of sand and earth it is almost dry for three or four months but is nevigable during the remaining eight or nine months of the year. It is admitted, and that is also the finding of the Courts below, that the predecessors-in-interest of defendants 1 to 5 the contesting defendants had a several fishery in the river Jhinai, which was a public navigable river, the bed whereof belonged to the Crown. Whether their fishery right in the waters of the said river now exist or not by reason of the river ceasing to be nevigable throughout the year is one of the questions in the appeal. For carrying the railway line of the Singjani-Fulchari branch of the Eastern Bengal Railway (now the Bengal and Assam Railway), which belongs to Government, over the river Jhinai a portion of the bed of the river was acquired under the Land Acquisition Act. The portion so acquired covers Dag Nos. 23 to 27 o! mouza Char Banipakuria, also known as Char Palisa. A railway bridge was constructed over the place. Owing to scouring a depression has been formed under the railway bridge. Water remains in that depression throughout the year. A sort of raised bank has been found round this depression. In the dry season for three or four months of the year when the waters of the river Brahmaputra do not flow into the river Jhinai this depression looks like a pond surrounded by dry land on all sides but during the rains and the remaining part of the year it is swallowed by the flowing waters and becomes a part of the river Jhinai which is then navigable. That is the finding of the Commissioner and of both the lower Courts. The suit concerns this pool of water.
(2.) On 21 January 1936, before Part 3 of the Government of India Act, 1935, had come into operation the Secretary of State for India in Council instituted the suit in which the appeal arises for a declaration of title to fishing rights in that depression, for possession and for a permanent injunction to restrain the defendants from fishing in that place. Before the suit the railway administration had granted a licence to one Ramjatanal to fish there and the suit was the consequence of the obstructions offered by the defendants to Ramjatanal. After Part 3 of the Government of India Act, 1935, had come into operation an application was moved by the plaintiff for amending the cause title. That application was allowed and in place of the Secretary of State for India in Council the Governor-General in Council was substituted. Many defences were raised. The learned Munsif found that defendants 1 to 5 had a several fishery in the river Jhinai but their right extended to eight annas only and the remaining eight annas was still vested in the Crown, as the Crown had not made a grant of the same to a subject, and the defendants right had not been destroyed by the land acquisition proceedings. Although he held that the fishery to the extent of eight annas still belonged to the Crown he refused to give the plaintiff either a declaration of title or joint possession with the defendants on the ground that after Part 3, Government of India Act, had come into force, the Province of Bengal only and not the Central Government could bring the suit.
(3.) On appeal the judgment of the Munsif has been reversed. The learned Subordinate Judge has held: (1) that the defendants right to fish in the pool had ceased because of the silting up of the river; (2) that the defendants right to fish in that pool had been extinguished by reason of the land acquisition proceedings, the said right being an encumbrance on the land acquired; and (3) that the Governor.General in Council was entitled to maintain the suit "as the Governor-General is the representative of the Crown" and as the Railway Administration is under the Governor-General in Council." The contesting defendants have preferred this second appeal. In one place of his judgment the learned Subordinate Judge remarked that the disputed pool of water was a closed water but the finding taken along with his other findings mean that during the dry season, for about three or four months of the year, the pool of water is not connected with the flow of the river Jhinai, for in those months the river Jhinai has no flow. The Commissioner's report, on which both the lower Courts have proceeded makes it clear that the river Jhinai has well defined banks. Its bed therefore is what lies within those banks and the pool of water lies between the defined banks and so is within the bed of the river. During the dry weather there is no water in this bed but water remains in the disputed pool which at some places is deep. It looks at that season like a closed pond or doba but during the rest of the year the pool is engulfed in the stream and becomes a part of a flowing navigable river.