RAMLAKHAN PANDEY Vs. DIGBIJAY NARAIN SINGH

JUDGEMENT

(1.) This is an appeal on behalf of the defendants parties 1 and 3 from the concurrent decisions of the Courts below decreeing the plaintiffs suit for possession and mesne profits in respect of a mun which has been, described as a lake, but from the map attached to, and forming part of, the plaint it would appear that it is a serpentine water channel which is now closed at both ends but which at one time may have been the bed of the river Burk Gandak which flows at some distance, about a. mile, from the mun.

(2.) The plaintiffs case, shortly stated, was that the lake in question is situate in village Bishunpur Mathura alias Morsandi, which in. the course of this judgment, will be described as village Morasandi for brevity. It is shown, in the record of rights finally published in or about the year 1897 as a part of village Morsandi in survey plot No. 2695 with an area of considerably over 200 acres. Village Nariar joins the village Moraandi on the east so that village Nariar is situate on the eastern extremity of the-lake. Village Nariar contained an indigo factory which was originally an outwork of Kanti factory. It was claimed in the plaint that that water of the lake used to be utilised for the purposes of manufacture of indigo, and the fishery right was also exclusively possessed by the Nariar factory for a long period of time, much in excess of the statutory period of twelve years. As a result of that exclusive possession off the fishery rights, the Nariar factory is alleged to have acquired a right to the same by adverse, possession. There was an alternative claim that, if the Court came to the conclusion that the plaintiffs were not entitled to mesne profits, they should be awarded a decree for rent for the years 133 to 1846 fasli at the rate of RS. 302 per year, the amount which used to be paid by the lessees to the Nariar factory.

(3.) The plaintiffs traced their title to village Nariar and the lake in question in the following manner. One Mr. Toomy was in possession of the Nariar factory from before 1881 down to the year 1910 in which year Messrs Shaw Wallace & Co., and another company purchsed the, Kanti and the Nariar concerns at an auction sale, The auction-purchasers aforesaid sold the two concerns to the late Hon ble Mr. B.N. Basu, predecessor-in-interest of the defendants fourth party, and to Babu Langat Singh, grand father of the plaintiffs. The plaintiffs and their co-sharers continued in joint possession until there was a partition made on the basis of an award, as a result of which village Nariar was allotted to the plaintiffs share and Kanti to their co-sharers.