KUMAR PRAMATHA NATH RAY Vs. NANI LAL ROY

JUDGEMENT

(1.) The problem in this case is to ascertain the boundary between two fisheries (jalkars) in the River Padma where it flows between the districts of Dacca and Faridpur. The appellants are proprietors of the upper and the contesting respondents of the lower fishery. There is no gap between the two : the upstream limit of the respondents' fishery is the downstream limit of the appellants. In each case the fishery right dates from before the Permanent Settlement, but is now part of a permanently settled estate. The appellants' estate is called Char Mukundia, the respondents' is called Bikrampore. The water in question being a public navigable river the right of fishery is not a mere appurtenance of the adjacent land but is in origin dependent on a grant from Government, and as the river changes its course from time to time, the right of fishery follows the river. Srinath Roy V/s. Dinabandhu Sen, AIR 1914 PC 48 is a decision on this very water. From time to time, for a hundred years and more, disputes over the boundary between the two jalkars have claimed attention from criminal and civil Courts. The dispute which gave rise to the present litigation occurred in 1917, and, in the usual course, resulted in a magisterial order of 31 October 1918, under S. 145, Criminal P. C. This order was in favour of the appellants and to the effect that they were entitled to remain in possession of that part of the fishery which was in dispute until a civil Court should otherwise determine. The Bikrampore party were thus forced into the position of plaintiffs, and on 30 September 1921 the contesting respondents accordingly brought their suit claiming a declaration that the fishery right of the appellants Char Mukundia estate stopped at a point some seven miles upstream from the limit which the appellants recognised.

(2.) The Subordinate Judge at Dacca settled issues in 1922, and in February 1923, Mr. Anukul Chandra Ghose, a pleader skilled in survey work and with experience of river surveys, was appointed commissioner to make a local investigation and prepare a case map. This work he carried out in the dry season of 1924-1925, a few days in 1923 being all that could be devoted to it in that year. His report- a highly creditable one-is dated 10 July 1926, and was accompanied by maps drawn to the scale of four inches to the mile, together with detail maps of certain parts of the locality drawn to a larger scale (16 inches to a mile). The trial began effectively in November 1927, and the Subordinate Judge on 28 February 1928, dismissed the suit with costs. On appeal to the High Court at Calcutta, Dwarkanath Mitter and S. K. Ghose, JJ. reversed this decision and declared the boundary between the two fisheries to lie at an intermediate point giving rather more than half of the disputed stretch of river to the defendants. The learned Judges have accepted and proceeded upon the map drawn by the commissioner, and the line taken by them to show the boundary is drawn from a point (station 160) which represents a pipal tree standing in 1820 in the homestead of one Sadananda Guha of Dheukhali to a point one quarter of a mile north-west of the site of a village called Sabdy Char, appearing in map No. 16 of Rennell's Atlas but no longer in existence.

(3.) Upon this appeal, neither party seeks to challenge the title of the other to the jalkar right which is part of each revenue paying estate. Nor is the question any longer complicated by claims that either fishery has been extended to wider limits by reason of adverse possession. It is only too clear that for a century both parties have from time to time exercised rights over the disputed portion of the river and have throughout made conflicting claims. Hence though on boundary disputes possession is not seldom the best test, no clear result can be obtained from it in the present instance. It is common ground that the rights of the parties must be discovered from the definition given to them in 1797, 1816, 1820 and 1843 as the result of litigation between their predecessors in title. The appellants by their learned counsel stress the burden which lies upon the plaintiffs to prove that their right extends over the disputed area and maintain not so much that the appellants have proved the boundary asserted by themselves, as that there are not sufficient materials to identify the boundary as falling anywhere within the seven miles in dispute.