RANI PROVABHATI SAHEBA Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This appeal comes before their Lordships from the Calcutta High Court in a suit in which the respondent, the Secretary of State for India in Council, is the plaintiff. He claims a decree in his favour declaring his title to seven jalkars or fisheries which in his plaint he describes as "component parts" of his fishery known as Jalkar Gangapath Islampur (southern portion). His claim was originally to nine jalkars but has been restricted to seven.

(2.) It is not disputed that the respondent as in right of the southern portion of Jalkar Gangapath Islampur is entitled to the fishings in some fifty miles of the river Ganges, which is a public navigable river. Nor is it disputed that he is entitled to all subsidiary fishings which the law recognises as "'adjuncts" of his fishery in the Ganges. But it is denied by the appellants, who are certain of the original defendants in the suit that the respondent has any right to the seven jalkars now claimed by him whether as "adjuncts" of his fishery in the Ganges or under any other title. The appellants who have contested the respondent's claim before their Lordships are the proprietors of an eight annas share of Pergunnah Ekbarabad, within whose limits the disputed fisheries lie, and they maintain that to the extent of their proportion the disputed fisheries belong to them as the owners of the underlying solum. The Secretary of State succeeded in his claim both before the Subordinate Judge and in the High Court.

(3.) A description of the situation and geographical features of the jalkars in question is necessary in order to appreciate the problem. The Pergunnah Ekbarabad is an estate lying between a river known as the Bhagirathi and a portion of the stretch of the Ganges in which the respondent admittedly owns the fishings. The Bhagirathi was originally not an independent river but was a diversion of part of the waters of the Ganges which it rejoined lower down. Subsequently, and at any rate before 1867, the Bhagirathi at its upper end ceased to be connected with the Ganges and became an independent river. Instead of flowing directly into the Ganges, as it originally did, it became united with another river called the Pagla and the united stream flows into the Mahananda river which in turn joins the Ganges. The Bhagirathi was at one time navigable but has ceased to be so. One of the seven jalkars claimed by the respondent is in a three-mile stretch of the Bhagirathi where it borders Pergunnah Ekbarabad some distance above its junction with the Pagla. Another of the disputed jalkars is in a channel between the Bhagirathi and the Pagla. The five other jalkars are bils, that is, ponds or swamps. Four of them lie at distances of from half a mile to two miles from the Bhagirathi with which in the rains they are connected by channels or ditches and the fifth is connected by a channel with the Pagla.