MOHAMMAD WAHID KHAN Vs. DISTRICT BOARD

JUDGEMENT

(1.) This is a reference by the civil Court, the Munsif of Hawali, Bareilly, in regard to a certain issue 3(a): "is the suit under Section 9, Specific Relief Act, maintainable in respect of ferry rights to collect toll on the river?" The plaintiff is a lessee for a period of three years from the District Board, Bareilly, and plaintiff claims under Section 9, Specific Relief Act, to recover possession of the ferry from the District Board. The plaintiff alleged that during the continuance of his lease the District Board dispossessed him. On behalf of the plaintiff reference was made to Krishna V/s. Akilanda (1890) 13 Mad 54. That was a case where the owners of immoveable property had a claim to a right of ferry and it was held that such a claim amounted to immoveable property within the meaning of Section 9, Specific Relief Act. That section states: If any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof notwithstanding any other title that may be set up in such suit.

(2.) Now "immoveable property" for the purpose of this Act is defined in the General Clauses Act, Section 3(25) which says: Immoveable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.

(3.) Now the rights of the plaintiff admittedly arise from the lease from the District Board of Bareilly. This lease is under Section 8, Northern Indian Ferries Act, (Act 17 of 1878) which states: The tolls of any public ferry may from time to time be let by public auction for a term not exceeding five years.