Plaintiffs evidence that he had been catching fish during the Hilsa season by employing other fishermen was disbelieved and it was held that the defendants had been exercising exclusive right to fish in the disputed fishery during the Hilsa season adversely to the plaintiff and the other companysharers for more than twelve years.
The acquisition of interest by the plaintiff Raja of Aul in the zamindari companyncides with the period of the first world war, the aftermath of which was a rise in prices.
The entry in the Remarks companyumn is similar to the receipt above mentioned.
The receipt was given by the nine anna seven pie company sharer in the zamindari but it is number clear how this amount was made up.
On these allegations, the plaintiff claimed a declaration to the effect that defendants 1 to 18 in their personal and representative capacity have numberright or title in the fishery known as Madhurdia fishery or to the fishery in the southern por tion of the area recorded as the river block, Risilo and Husgarh.
As a result of these findings the decree of the trial Judge was modified and the plaintiff was given a permanent injunction restraining the principal defendants from fishing in the disputed fishery except during the Hilsa season Margasir to Baisakh during which the defendants were declared to have exclusive right of fishing.
On the 21st June, 1912, a receipt was given in favour of twelve persons in respect of rent for the year 1317.
A number of letters of the years 1914 to 1918 have been proved on behalf of the plaintiff showing that he was deriving income from this fishery.
On the 4th February, 1914, a receipt was given by an eight pie companysharer in the zamindari to 174 persons, described as tenants and residing in different villages of the zamindari for a sum of Rs.
As regards the point raised by the plaintiff that by reason of the change in the companyrse of the river the fishery in dispute was number the same regarding which an order was made under section 145 proceed ings or in which the defendants have been exercising their right, it was held that this companytention was without force because the river was identical and the channels, whether old or new, which companyprise the Madhurdia or Charikhati fishery, have always formed one companynected sheet of water and that fishing in different parts of such a companynected sheet of water companyprised in the same fishery can hardly be said to be a separate act of aggression so as to disturb the companytinuity or extent of adverse possession and that the fishermen though a fluctuating body, have unity of interest and pos session and companyld number be described as several independent trespassers.
The same kind of documentary evidence that has been placed on this record on behalf of the plaintiff was also placed before the Magistrate but it was number accepted by him.
Some Aul fishermen were produced on behalf of the Rani but their evidence was also number accepted.
Another receipt dated 30th March, 1914, was given by nine anna seven pie companysharers in the fishery to twelve persons for the year 1320.
The plaintiff challenged this decision and companytested the finding that the defendants were lawfully in possession of the fishery and companyld exercise their right of fishing during the Hilsa season exclusively.
Subsequently he in his own name and sometimes in the name of the Rani purchased some further shares in the za mindari and eventually became the owner of seven anna seven pie and ten kranth share in it.
62, 63 and 64, were brought by the Raja of Aul against defendants 1 to 18 on behalf of themselves and other fishermen residing in the nine villages of Killa Marichpur for a declaration in re spect of his rights in the three above mentioned fisheries.
5 13 6 as rent for the year 1319.
N. Das Sri Kant Mahanti, with him for the respond ents.
Mahisthali Patamahadei, his wife, from one Balaram Das Bhagat, a descendant of Mohan Bhagat.
By a registered deed dated 24th May, 1914, the plaintiff for the first time acquired an eight pie interest in the zamindari in the name of Smt.
Appeal against the judgment and decree dated the 21st April, 1943, of the High Court of Judicature at Patna Fazl Ali C.J. and S.C. Chatterji J. in First Appeal No.
Similar letters for subsequent periods have also been proved but numberregular accounts of the income so realized were produced in the case.
All the questions raised in the trial companyrt excepting the question of custom were canvassed by the defendants before the High Court.
It was companytended that from the evidence placed on the record the only companyrect companyclusion to draw was that from time to time some fishermen were allowed tot fish in these waters by a number of land lords on payment of rent but that the present defendants were number the descendants of those fishermen who were occasionally granted leave to fish and that those isolated acts of letting the fishery were number companynected with one another and from these it companyld number be inferred that the defendants or their predecessors were in companytinuous possession of the fishery on payment of a fixed rent and that the present defendants were mere trespassers and had numberright to fish in the disputed fishery.
42 of 1948.
It was further companytended that numbertitle of any kind companyld be presumed to exist in the defend ants to the fishery in suit and on the basis of a lost grant as in this case there was numbercapable grantee and that even title by adverse possession or prescription companyld number be acquired by them as they form an indeterminate and fluctuat ing body of persons.
From his order it appears that numberice was given to all companycerned and they were invited to put their respective claims as regards the facts of the actual possession of the fishery in dispute before him.
Against the decision of the High Court numberappeal was pre ferred by the defendants though they had only been found to be in possession of the fishery in the status of mere ten ants at will.
The enhanced income of the fishery created a scramble for its possession between the landlords and the fishermen and there was an apprehension of a breach of peace which resulted in proceedings under section 145, Criminal Procedure Code.
The Rani of Aul who had then eight pie interest in the zamindari as benamidar of her husband led evidence to establish that she was in possession of the fishery through fishermen employed by her agent.
He disbelieved the story of the witnesses produced by the Rani of Aul, and also rejected the testimony of the witnesses produced by other owners.
A report was made to the police on the 11th February, 1918, that a dispute had arisen which was likely to cause a breach of the peace between the landlords of Killa Marichpur and twelve fishermen in regard to the possession of Charikhati fisheries in Debi river.
Fish which was a cheap companymodity and brought numberappreciable income to the fishermen or to the owners became a source of companysiderable income and this circumstance led to disputes between the owners of the fishery and the fishermen.
All these suits were decided in his favour by the trial companyrt.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
In suit No.
The defendants preferred numberappeal in suits 63 and 64, with the result that the companytroversy regarding the two fisheries involved in these two suits stands companycluded by the decision of the trial companyrt.
Three fisheries Madhur dia, Marichpurdia and Maladia appertain to this es tate.
The plain tiff thereupon obtained leave to appeal to His Majesty in Council and that appeal is number before us for decision.
It was alleged in the plaint that the proprietors of Marichpur zamindari are the exclusive owners of the fishery in question and have all along been exercising their right of catching fish in the same sometimes by employing fisher men and sometimes by letting out the fishery to them, that the plaintiff has ever since his acquisition of the zamind ari interest been the owner in khas possession of the fish ery right according to his share in the zamindari, that the defendants fishermen were never in possession of the said fishery, number have they any right to it, that in the year 1918 they started proceedings under section 145, Criminal Procedure Code, to create evidence of their possession but in spite of those proceedings the plaintiff companytinued to be in possession of the fishery and has been catching fish by employing fishermen, that by taking advantage of the fact that there are several companysharers in the zamindari and there is mismanagement of the estate, the defendants wrong fully and unlawfully trespassed on the fishery from time to time between May, 1933, and November, 1933, and disturbed the plaintiff in the enjoyment of his right and have caused loss to him and his companysharers by catching large quantity of fish without any leave or licence.
As regards the defendants companytention that the plaintiff was bound by the order passed in proceedings under section 145, Criminal Procedure Code, it was found that he number having challenged that order within the prescribed period, his right to khas possession of the disputed fishery except to the extent of five pice share was extinguished under section 28 of the Limitation Act but that his proprie tary right subsisted as it was never denied.
It was further held that the plaintiffs right to khas possession of this fishery was also extinguished by operation of article 144 of the Indian Limitation Act.
In the year 1936, three suits, Nos.
On behalf of certain companysharers evidence was led to prove that they were in possession of the fishery through one Sundari Behera and other fishermen numbering about 100.
The Magis trate on receipt of the police report issued numberice to the parties for the 10th February, 1018, and decided the case on the 10th June, 1918.
Prayer was also made for the grant of a perpetual injunction restraining the defendants from fishing in the above fishery and in the above mentioned blocks and for the award of a sum of money by way of damages and on account of price of fish.,
The companytroversy in this appeal companycerns the fishery known as the Madhurdia fishery.
The Judgment of the Court was delivered by MAHAJAN J .
March 27.
The other sharers in the zamindari are defendants 19 to 29.
The dispute in this appeal is between the fishermen residing in nine villages of Kills Marichpur, a permanently settled zamindari in the Puri Collectorate Orissa State and the Raja of Aul, the owner of seven annas, seven pies, and ten karants share in the zamindari.
Within the ambit of the estate flows Devi Nadi with its several branches and tributaries.
Manohar Lal G. P. Das, with him for the appellant.
62 of 1936.
17 of 1939 arising out of decree dated the 19th July, 1939, of the Subordinate Judge at Puri in Original Suit No.
