Syed Baker Husain vs Rani Ranjit Koer and Others

Roe, J.—In this case the plaintiff is the proprietor of land within the boundary of which a stretch of water is formed in the rainy season and a profit derived from catching fish therein. In his plaint he sets forth that though he has from time immemorial exercised in this stretch of water the right to catch fish which would naturally vest in the owner of the land upon which the water collects, he has by an order of the Sub-Divisional Officer of Samastipore been deprived of this right in proceedings u/s 145 in favour of the defendants. He therefore, brings this suit for--(1) a declaration that the defendants have never had any interest in the right to catch fish in this stretch of water; (2) that the order of the Sub-Divisional Officer be declared null and void; and (3) that possession and occupation of the disputed property may be awarded to the plaintiff by dispossessing the defendants Nos. 1 and 2.

The learned Judge has held, concurring with the learned Munsif, that the period of limitation in a suit of this description would be twelve years and that inasmuch as the plaintiff has not proved possession within twelve years of the suit, the suit must be dismissed with costs.

Against this decision the plaintiff appeals and the ground argued is that since the right to catch fish in water is not Immovable property within the meaning given to that term by the General Clauses Act, Articles 142 and 144 would not apply. He has in fact no limitation at all for such an action, the trespass of the defendants being a recurring trespass giving the right on each successive trespass to a new cause of action.

In support of this proposition that the right to catch fish is not Immovable property, we are referred to a Full Bench decision of the Calcutta High Court in Fadu Jhala v. Gour Mohun Jhala 19 C. 544 : 9 Ind. Dec. (N.S.) 806 and to certain observations of Mookerjee, J., in Lokenath Bidyadhur v. Jahania Bibi 12 Ind. Cas. 305 : 14 C.L.J. 572. It is to be noted that the decision of the Full Bench was that of a majority of 3 to 2 and that it is in direct conflict with the decision in Bhundal Panda v. Pandol Pos Patil 12 B. 221 : 6 Ind. Dec. 633. In the view that I take, however, it is not necessary to discuss whether, the decision of the Full Bench was right or wrong, for the Full Bench decision is limited to cases in which a party admittedly having no interest in the land claims a right to go and fish upon that land. The case before us is one of the nature contemplated in the judgment of Mookerjee, J., in Lokenath Bidyadhur v. Jahania Bibi 12 Ind. Cas. 305 : 14 C.L.J. 572, that is, of a person whose right to catch fish in water on his own land has been so seriously interfered with as to come to an end altogether. There is no doubt upon the language of the judgment of the learned Judge in that case that where ft party has been completely ousted from property of this nature by definite acts of aggression by another party, such definite acts of aggression are in effect dispossession from Immovable property. In this case we have it that the dispute between the parties was so great that Police interference was necessary. We have it on concurrent findings of fact arrived at by the two lower Courts that the plaintiff has not within twelve years exercised any right whatever over the property in dispute with regard to the catching of fish. As I understand the case, caching of fish is a benefit derived from the ownership of the land upon which water collects and dispossession from those benefits is dispossession within the meaning of Articles 142 and 144 of the Limitation Act.

Upon the findings of fact arrived at by the two lower Courts I would hold that this suit is barred by limitation and would dismiss this appeal with costs.

Chapman, J.

I agree.