Ramji Rai and Others vs Emperor

James, J.—The petitioners are occupancy raiyats in Sangrampur village in Champaran District. On 27th September 1929, when their fields were under water, certain persons acting with the permission of a man who had taken a lease of the fishery in Sangrampur from the proprietor of the village caught about a maund of fish from the water which covered the petitioners'' land. The nine petitioners came in a body and took the fish away by force from the men who had caught them. They were accordingly prosecuted for the theft of the fish. They took the defence that they were themselves entitled to the fish which had been caught on their own land, that the person who caught the fish on this land committed theft and that the petitioners were merely recovering stolen property.

The Deputy Magistrate found that for some years past the fish on uncultivated land had been appropriated by the thikadar who had been in possession of the alkar right on behalf of the proprietor. He accordingly convicted the petitioners of an offence u/s 147, I.P.C. and sentenced them each to pay a fine of thirty-five rupees.

Mr. B.C. De on behalf of the petitioners argues that it has not been proved in this case that the proprietor or his thikadar had any right to take the fish from water which was standing on occupancy holdings. It is suggested by the learned Assistant Government Advocate that all that need be proved in a criminal case of this nature is that the proprietor has within recent years been in possession of the fishery, and if that is proved the tenant cannot be held to have any right to resist an act asserting possession on behalf of the proprietor.

The law of the right of fishery over flooded fields of occupancy raiyats in this province, and particularly in Champaran district, was laid down by this Court in Henry Hill and Co. (Turkaulia) Ltd. and Another Vs. Sheoraj Rai and Others, . Prima facie the raiyat of an occupancy holding has a right to fish that may come on his land when it is flooded; but as Sir B.K. Mulliek pointed out, the tenant may at the time of taking his lease make a re-grant of the right of fishery to the landlord, or the landlord may have acquired such a right by custom or by adverse possession for a period of over twelve years. In the present case no re-grant by the tenant has been proved, no local custom has been proved limiting the ordinary right of the raiyat to use the land of his occupancy holding in any manner he pleases subject to the provisions of Section 23, Ben Ten. Act; and it has not been proved that the landlord has acquired an exclusive right of fishery by adverse possession for twelve years. Therefore the raiyats had a right to catch any fish which might be found in water standing on (their occupancy holding; and they had also a right to prevent any other person from entering on their land for the purpose of catching fish. That being so the rule laid down in King Emperor Vs. Artu Rautra, will apply.

The tenants were entitled to seize the fish from the tresspassers who had taken them, and they committed no offence in doing so, since there was no exercise of undue violence. The application is accordingly allowed. I set aside the finding and order of the lower Court, and acquit the petitioners of the offence charged. The fines if paid will be refunded.