Mt. Bibi Safia and Others vs Sahdeo Singh and Others

Harries, C.J.—This Is a Letters Patent appeal from a decision of Agarwala, J. affirming concurrent decrees of the Courts below passed in favour of the defendants.

The plaintiffs are proprietors of Mauza Alipur Sohra, and in their capacity as proprietors they brought the suit out of which this appeal arises claiming damages in respect of fish taken by the defendants from a ditoh situate in the village. They also claimed a declaration that the defendants had no right to catch and carry away fish from the said ditch. The suit was brought against a number of persons under Order 1, Rule 8, Civil P.C., as representing the villagers of Alipur Sohra. The ditch in question is plot No. 386 and is recorded in Khata No. 404 as gair mazrua-am. This ditch becomes flooded occasionally, and when such floods occur fish come into the ditch, and the suit is concerned with a right to catch and take away such fish. Fish '' do not appear in the ditch every year, but the evidence showed that there were fish in the ditch in the years 1329, 1331 and 1339 F. They did not appear again in the ditch apparently until 1344 F. (1937). In this latter year the villagers caught and took away fish from the ditch, hence the suit. It was conceded by the plaintiffs that the villagers were entitled to take water from the ditch and mud or earth from the bed of the ditch. The villagers in evidence attempted to show that they had also a customary right to take away fish from the ditch; but this was found not proved by the Courts below. However, both the learned Munsif and the learned Subordinate Judge were of opinion that as the ditch was gair mazrua-am the plaintiffs had lost control over the same and, therefore, could not prevent the villagers from catching and taking away the fish which occasionally appeared in the ditch. It would appear that the number of fish taken away was very small, because the learned Judge observed that if he had had to assess damages he would have assessed the same at Re. 1.

In second appeal it was contended on behalf of the plaintiff-appellants that the Courts below were wrong in holding that the plaintiffs had lost control over this ditch. On the contrary, it was urged that the plaintiffs could exercise all rights of ownership over the ditch which were not inconsistent with the admitted rights of the villagers in the ditch. It was urged that the rights of the villagers were limited, namely, to take earth, mud or water from the ditch. The plaintiffs could not do anything which interfered with these rights, but they had every right to perform acts of ownership which did not interfere with the exercise of such rights. The learned Single Judge, however, felt himself bound by authorities of this Court and held that the plaintiffs had no exclusive right to take fish from this ditch and had no right to prevent the villagers from so doing. He accordingly dismissed the appeal.

In this Letters Patent appeal it has been strenuously urged by Mr. Sushil Madhav Mullick that the learned Single Judge has not correctly stated the law relating to the rights of the respective parties in land described as gair mazrua-am. Mr. Mullick has urged that villagers have definite rights in such land and those rights cannot be interfered with. On the other hand, the proprietor of the land has all the rights of a proprietor except the rights which are in conflict and which interfere with the rights of the villagers. He has urged that the law was correctly stated by a Single Judge of this Court in Ram Das Sha v. Damodar Prasad AIR 1923 Pat. 346 , in which the learned Single Judge held that the rights of a tenant to keep khalihans, to play Ramlilas, to put up marriage processions, or to tie cattle during the rainy season on the gair mazrua-am lands of the village are not in the nature of easements, but rather customary rights which have been recognized in India, there being no unreasonableness or uncertainty about their elements. The tenants, however, can claim only a declaration of their rights and not recovery of possession of the gair mazrua-am land, as the landlord has the right of developing and settling such lands so long as he does not interfere with the rights which the tenants have acquired. In this case it is clearly laid down that if settling the land with third parties will not prejudicially affect the villagers and interfere with their rights such settlement is perfectly lawful and the villagers can have no complaint about it.

The nature of gair mazrua-am land came up for consideration in recent times in two Bench cases in this Court. The first case is Muhammad Waliul Hag and Others Vs. Ludput Upadhya and Others, . In that case Mahomedans brought a suit for a declaration that they had a right to bathe in the Saptadhara kund at Rajgir which was recorded in the Record of Bights as gair mazrua-am and it was found as a fact that the kund in question was a place of religious sanctity to the Hindus and the control of the kund was in the hands of Brahman priests who received offering from the Hindu pilgrims. In the judgment which was delivered by James, J., the precise meaning of the phrase "gair mazrua-am" is considered, and the learned Judge deals with it in these words:

The entry in the Record of Eights cannot be read as warranting any presumption that the zamindar more than any other person has a right of control over these kunds. There are two forms of khatian for non-agricultural land or waste land. In one (gair mazrua malik), is entered land, waste or uncultivated or utilised for building or non-agricultural purposes, which is under the control of the zamindar. In the other, (gair mazrua-am or public waste) is land of that kind not under the control of the zamindar; and the only presumption in that connexion which can properly be drawn from the entry in the Record of Rights is that this pool is not under the control of the zamindar.

There can be no question that James, J., in this case did hold that gair mazrua-am land was land not under the control of the zamindar. It has been urged that it was unnecessary to lay down such a wide proposition, because the case was to a large extent concluded on questions of fact. However, Jamea J., was dealing with the contention that had been urged before the Bench, and he points out that the Record of Rights is consistent only with the defendants'' case and not with the case made by the plaintiffs.

This case was followed by another Bench of this Court in Sheikh Amiruddin and Others Vs. Sonelal Jha and Others, , in which it was held that a landlord had no right to settle gair mazrua-am land even if the settlement did not interfere with the rights of the public. In this later case the learned Judges expressed the view that the earlier Bench decision to which I have already referred did in faot overrule the earlier Single Judge decision, Ram Das Sha v. Damodar Prasad AIR 1923 Pat. 346 .

Again, it has been urged that certain observations in the judgment in this later case go further than was necessary to decide the case. Be that as it may, it is clear that the Bench in that case held that a zamindar could not settle gair mazrua-am land even though the settlement in no way interfered with the rights of the villagers. The Bench expressly approved of the statement of the law in James, J.''s judgment in Muhammad Waliul Hag and Others Vs. Ludput Upadhya and Others, .

Sitting as a Bench in second appeal, we are bound by the decisions of this Court, and in my view these two later cases make it clear that in gair mazrua-am land the proprietor has lost control. He would appear to be in no better position than other villagers. To entitle him to maintain, a suit for damages and for a declaration that the villagers were not entitled to take fish he would have to show that he had an exclusive right to the fishery. In my view, he cannot show such right having regard to the authorities to which I have referred.

Mr. Sushil Madhav Mullick also argued that the plaintiffs were clearly entitled to the fish to the exclusion of the villagers by reason of the fact that fish were fer� natre�. The proprietor of land would be entitled to the fish where land had not been settled with tenants. However, different considerations arise where the land is gair mazrua-am that is where the proprietor ceases to exercise control. In that case it appears to me that he is in no better position in regard to fer� nature� than with regard to other rights. In my view the case is concluded by the two Bench authorities to which I have referred, and that being so, this appeal fails and I would dismiss it with costs.

Fazl Ali, J.

I agree.