INDU BHUSAN BOSE Vs. SARAJUBALA DEBI

JUDGEMENT

(1.) This appeal arises out of a suit for declaration of right to and recovery of possession of fishery-right in a piece of water, described as a jala or kole, lying within the estate of defendants 1 to 9 called Chandahar, by virtue of the plaintiffs right to two jalkars named Bartail and Chandraghopa Nayaganga. Plaintiffs allege that Bartail appertains to touzi No. 9316 and Chandraghopa Nayaganga to touzi No. 1180 of the Dacca Collectorate, both permanently settled estates. Plaintiffs, including the original defendants 42 and 43, who were transferred to the category of plaintiffs, claim 10-annas share of jalkar Bartail and 12-annas share in jalkar Chandraghopa Nayaganga in accordance with their shares in the two estates. Their case is that the two jalkars were different names of portions of a big tidal navigable river now named Dhaleswari. This river flowed to the east of a certain number of mauzas, Chamta, Chandhar and others. In 1897 the river broke through the lands of the mauzas lying on its west and flowed over those lands. It continued to do so till about 1910. In 1911 the river again turned towards the east and returned more or less into its old bed, but it had a channel over the jala in dispute through which it continued to flow as it did through the channel on the east. The plaintiffs allege that the jala in claim forms a part of the river system and so they are entitled to the fishery right in it as they have in the main channel. The plaintiffs enjoyed their fishery right till about the end of 1913 when they were dispossessed by the defendants of a portion of the jala. They annexed a plan to their plaint which showed that the jala in suit is connected with the river at both ends, flowing out of it and into it. The Court below made a decree in favour of the plaintiffs. The principal defendants who are the owners of estate Chandhar appealed to this Court. The other defendants were lessees of the fishery rights under the appellants. The appeal was heard previously by a Division Bench of this Court. The learned Judges remanded the case to the Court below by an order dated the 15 August 1924 for findings on certain points stated, without deciding any of the questions raised before them, retaining the appeal on the file of this Court. The parties led evidence before the lower Court after remand which was recorded by a different Subordinate Judge, while the findings on the questions required by this Court were recorded by a third Subordinate Judge. The appeal has now come up before us for hearing on all the questions raised.

(2.) The disputed jalkar is part of a sheet of water which is marked below in the case map leaving out portions to the north and to the south of it. The defendants do not deny nor are they interested in denying that the plaintiffs had a right to jalkars Baratail and Chandraghope Nayagauga, but what they say is that those jalkars were not in the bed of the large navigable river Dhaleswari which is not a new name given to the river as alleged. They state that the plaintiffs jalkars were in two small rivers within their estates which are depicted in the survey map of 1858-59 (Ex. 36a) as existing in the land between Booriganga and Dhaleswari rivers. It was in 1861 during resumption proceeding that a Mr. Wise, the predecessor-in-interest of the plaintiffs, set up the case that those two jalkars were in the bed of the river newly called Dhaleswari. This claim was negatived by the revenue authorities, but Wise succeeded in two civil suits, Nos. 35 and 44 of 1863, in establishing his right to the fishery in the bed of the Dhaleswari river as against the Government on the ground that the right of the Government to the fishery was barred by limitation. The defendants contend that the plaintiff's may have acquired a right to fish in a portion of the bed of the river by prescription against Government, but they are not clothed with the rights of a grantee of the fishery right in a river from the Government with the result that they should be held entitled to a fishery right on another's land on the ground that the river flowed on that land by changing its course.

(3.) The second point is that the disputed jala is entirely closed on the north end and it is not connected with the river throughout the year on its south-east end as shown in the case map, and therefore the plaintiffs cannot claim any fishery right in it under any circumstance.