SECY OF STATE Vs. DISTBOARD OF TANJORE

JUDGEMENT

(1.) The plaintiff-appellant is the Secretary of State for India in Council. The suit is against the District Board of Tanjore in whom the right of management of the properties belonging to the plaint-mentioned chhatram is vested. The dispute in this case is in respect of the right of fishing in the river Korayar which is a non-tidal and non-navigable river within the limits of the inam village of Turakkadu which belonged to the chhatram. The village on either side of Turakkadu belong to the plaintiff. It is alleged in the plaint that the exclusive right of fishing in aforesaid river within the limits of the said village has been in the enjoyment of the Government peaceably and openly from Faslis 1302 to 1329 inclusive as of right and without interruption. The title to the said right of fishing is claimed as an casement under Section 15, Easements Act, and if for any reason that Act is held to be inapplicable, the plaintiff states that he is entitled to the exclusive right of fishery within the aforesaid limits of the river by reason of adverse possession of such interest in immovable property for over 12 years, The suit is for declaration, injunction and damages. The defendant denies that the plaintiff enjoyed the fishery peaceably and openly and by assertion of right on his own behalf. It is alleged that the Collector of Tanjore, as agent of the Board of Revenue, managed the chhatram properties till 1872 and, then, as agent of the District Board, Tanjore from 1872 to 1920 when a non-official President was appointed, that during the time the Collector managed either as the Revenue Board's agent or as the District Board's agent, his subordinates in the Revenue Department were looking after the chhatram properties, that it was in this capacity that the leasing of the suit fishery must have been made and that, in such circumstances, there could not be any adverse possession of the fishery right.

(2.) As regards issuel in the case, namely, whether the fishery right in dispute was enjoyed by the plaintiff openly, peaceably and as of right for over 20 years, there is the concurrent finding of both the lower Courts in the affirmative. This finding has been arrived at after a due consideration of the documentary and oral evidence. The documents unmistakably show that all the leases of the fishery right were granted by the Government and the muchlikas taken in favour of His Majesty's Government. The notifications regarding auction sales were issued by the Tahsildars on behalf of the Government and the sales held by the Tahsildar were confirmed by Deputy Collectors. The rents collected in respect of the leases so granted have all been credited to the revenue of Government. There is ample proof that the Government has been exclusively enjoying the plaint-mentioned right of fishery from 1894 onwards till 1920 openly without interruption and as of right. This being a concurrent finding of fact by both the lower Courts is not open to question in this second appeal and I accept it as a proper finding.

(3.) There is no doubt that an exclusive right of fishery is an interest in immovable property. Such a right may be acquired by 12 years adverse possession. It is not the plaintiff's case nor is it indicated by the evidence that what was enjoyed by the Government is a mere right to fish in the locality in question which does not exclude the acquisition of similar rights by others or by the lawful owner of the land but, on the other hand, it is an exclusive right of fishery in that locality, in the sense that even the lawful owner of the land has been excluded from the enjoyment of such fishery right therein. That being so, the right established by the plaintiff is not a mere profit a prendre, but is an interest in immovable property which can be acquired by 12 years adverse possession as against the lawful owner. Such an interest is transferable and heritable: vide Hill & Co. V/s. Sheoraj Raj A.I.R. 1923 Pat. 58. But the controversy in this case is centered mainly on the question whether possession of the fishery right set up by the plaintiff can be really deemed to be adverse to the defendant or the chhatram. It is contended on the respondent's side in accordance with the view taken by the lower Courts that the Collector must be deemed to have filled a dual capacity as the ex-officio President of the District Board and also as the agent of the Government and that the possession and enjoyment of the fishery right) by the Government through the acts of the Collector who filled such dual capacity could not be constituted as adverse possession as against the District Board in which the management of the chhatram was vested. The lower appellate Court, in coming to its conclusion, has observed that this question does not seem to be one free from doubt. In my opinion, the correct position of those to whom the acts of enjoyment are attributed and the nature of the enjoyment should be clearly ascertained before the application of the legal principles. Till 1872 the Board of Revenue was exercising the powers of supervision and control over the chhatram endowments under the provisions of Regn. 7 of 1817. After the passing of the Local Boards Act 4 of 1871, the management of the chhatram properties became vested in the District Board.