RAJA BRAJASUNDER DEB Vs. MANI BEHERA

JUDGEMENT

(1.) These applications arise out of three analogous suits and are against interlocutory orders passed by the Subordinate Judge. The plaintiff who is the applicant is a cosharer to the extent of seven annas odd in certain estate in which, there are fisheries. The pro forma defendants are the other cosharers and the principal defendants are persons following the trade of fishermen. It is said that the principal defendants in the winter of 1935-36 from time to time made inroads on the fisheries in possession of the plaintiff and took fish therefrom; hence these suits are brought claiming declarations that the principal defendants, and others of their caste and calling have no right in the fishery, to recover damages from the principal defendants for fish actually caught and to have an injunction from the Court against the principal defendants restraining them from further trespass on the fisheries in the possession of the plaintiff. As regards the first relief for declaration that the defendants and others had no right in the fishery, the suit was framed in accordance with Order 1, Rule 8, Civil P.C., as a representative suit, the permission of the Court having been duly obtained. The principal defendants resisted the suits claiming a permanent right of fishery on a fixed rent for themselves and their eastemen about eight hundred in number.

(2.) They denied that the plaintiff was in possession of the fishery and they referred to a proceeding under Section, 145 between themselves and someco- sharers of the plaintiff in the year 1918 which had been decided in favour of the principal defendants. They raised some technical issues which they askedthe Subordinate Judge to take up as preliminary issues before proceeding to hear the suits on the merits. The substantial objections were that the suit was not maintainable in view of the provisions of Section 42, Specific Relief Act, the plaintiff not being in possession and not having prayed for recovery of possession, that the court-fee paid was insufficient and that damages could not lawfully be claimed in a representative suit.

(3.) The Subordinate Judge, after hearing the parties but without taking any evidence, has withdrawn the permission granted under Order 1, Rule 8 given to the plaintiff to sue the principal defendants as representatives of themselves and others. He held that a higher court-fee was payable than that which has been paid and called on the plaintiff to pay it. He held that in order to make the suit maintainable the plaintiff must amend his plaint by adding prayers for a declaration of his title and for recovering possession. He gave the plaintiff a stated time for compliance with these directions.