SECRETARY OF STATE FOR INDIA IN COUNCIL; KHAGENDRA NANDA ASRAM SHEBAIT OF SREE SREE ISWAR BRINDABAN CHANDRA JEW THAKUR Vs. NEMAI CHAND MUKHERJEE

JUDGEMENT

(1.) These appeals are from decrees of the District Judge of Hooghly confirming decisions, of the Subordinate Judge, Second Court, Hooghly, and arise out of three suits brought, by the plaintiffs-respondents for declaration of their title to certain heels on the allegation that they form part of their jalkar Bankipore, and for recovery of possession thereof.

(2.) The plaintiffs claimed that the said jalkar of the river Hooghly with all its heels, canals, water-courses, waterways, etc., appertaining to, connected with, and forming part thereof formed one of the mouzahs of the permanently settled estate known as huda barabahorkuli, being Touzi No. 46 of the Burdwan Collectorate, that they, and their predecessors had been in possession thereof since the time of the Decennial Settlement, and that they had been dispossessed by the defendants in these suits on certain dates, in the years 1914 and 1915. They claimed title both by virtue of settlement as well as by adverse possession.

(3.) The defendants, while not disputing the plaintiff's title to jalkar Bankipore, contested the suits on various grounds, the main defence being that the heels in suit formed no part of jalkar Bankipore, that they are not situated in the old bed of the river, but are far away from it with cultivable lands intervening between them and the river, that the plaintiffs never exercised any fishery rights therein, and that their rights, if they ever had any, had become barred by limitation. The Court of first instance found the issues in favour of the plaintiffs and gave them decrees in all three suits. On appeal the District Judge confirmed the decisions of the Subordinate Judge and dismissed the appeals. The defendants then appealed to this Court.