KALANDAR MANDAL Vs. AJIMUDEE MANDAL

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff claimed a right of easement for catching fish in the surface water of some paddy land The plaintiff; has some paddy fields on the lower levels of a tract of paddy land and it has been found as a fact that for over 20 years he has openly, peaceably and uninterruptedly caught fish in an arah or trap which he has been setting on his own land. The defendant, it is alleged, set a similar trap by the side of a tank belonging to him and as he caught some of the fish, which would otherwise have come to plaintiff s trap, the latter brought the suit to establish his right of easement and for damages. The Munsif gave him a decree declaring his right to catch fish to be established, giving him Rs. 4 as damages and ordering issue of a permanent injunction restraining the defendant from catching fish in his trap.

(2.) The Subordinate Judge on appeal, while finding that plaintiff had been catching fish in his trap for over 20 years, held that plaintiff had no exclusive right to catch all the fish in the tract of paddy land and that the defendant in catching fish on his own land acted within his natural right. He accordingly allowed the appeal and dismissed the suit.

(3.) It is now argued on appeal by the plaintiff that (in his finding as to user the Subordinate Judge ought to have affirmed the Munsif s decree.