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Mr. James E. Powell and anr. Vs. Mr. L.B. Powell - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1916All251; 36Ind.Cas.567
AppellantMr. James E. Powell and anr.
RespondentMr. L.B. Powell
Excerpt:
grant, construction of - grant of land bounded by stream--river bed, right in--agreement, construction of. - - it has not been very clearly shown whether the bed of the river was expressly partitioned, the lower appellate court has in reality decided the present case on a preliminary point of law. provided always that this division shall not interfere with any right common to either side as aforesaid, such as the use of wells, tanks, watercourses and the like, whether for drinking purposes, watering of cattle and irrigation. it is a well recognised rule of construction that a grant is construed in favour of the grantee rather than of the grantor......does not appear to be in dispute in the present suit. in the year 1869 the family entered into an agreement for partition. the actual carrying out of this agreement occupied considerable time and involved disputes. the claim of mr. james e. powell apparently is that as the result of the partition he acquired land which abutted the river on the south side and also the bed of the river up to the middle of the stream, and this carried with it the exclusive right of fishing in the river at these points. it has not been very clearly shown whether the bed of the river was expressly partitioned, the lower appellate court has in reality decided the present case on a preliminary point of law. the learned judge was of opinion, and we think correctly, that where land is granted which is bounded by.....
Judgment:

1. This appeal arises out of a suit in which the plaintiff claimed a declaration that he and his lessees were owners of certain stretches of the river Asan and other reliefs. The Court of first instance granted the plaintiff a decree. The lower Appellate Court reversed the decree of the Court of first instance and dismissed the plaintiff's suit. The family to which the plaintiff Mr. James E. Powell and the defendant belong originally owned lands on the south side of the river Asan. They also owned land on the north side, but this part of the property does not appear to be in dispute in the present suit. In the year 1869 the family entered into an agreement for partition. The actual carrying out of this agreement occupied considerable time and involved disputes. The claim of Mr. James E. Powell apparently is that as the result of the partition he acquired land which abutted the river on the south side and also the bed of the river up to the middle of the stream, and this carried with it the exclusive right of fishing in the river at these points. It has not been very clearly shown whether the bed of the river was expressly partitioned, The lower Appellate Court has in reality decided the present case on a preliminary point of law. The learned Judge was of opinion, and we think correctly, that where land is granted which is bounded by a stream, the grantee is entitled to the bed of the stream up to the middle point. The grant, however, may contain reservations. When co-sharers partition their property between themselves, the grantors are in law all the co-sharers other than the particular person to whom a particular portion is allotted. The latter is the grantee, and we can see no reason why the ordinary rule of construction should not apply to a grant inv partition just as to any other grant. The learned District Judge considered that as the partition originally originated in an agreement, dated the 27th May 1869, the provisions of that agreement ought to govern the rights of the various persons in the property which was subsequently allotted to them. For the purposes of the present appeal we will assume that this view was correct. The agreement, after providing that the property should be divided into five equal shares, contains the following proviso: Provided always that this division shall not interfere with any right common to either side as aforesaid, such as the use of wells, tanks, watercourses and the like, whether for drinking purposes, watering of cattle and irrigation.

2. It will be noticed that this reservation, if it may be so called, was not a reservation either of the river or its bed. It was a reservation of the use of wells, tanks and water-courses. It seems clear, therefore, that this provision in the deed could not have prevented the plaintiff or his predecessor-in-title acquiring the bed of the river up to the middle point, if the bed had been expressly allotted to him or if he had been allotted lands adjoining the river. It is a well recognised rule of construction that a grant is construed in favour of the grantee rather than of the grantor. There is no reservation of the right of fishing. Even in the written statement the defendant did not allege that there had been any such reservation. The admission which was made in the Court below as to Mr. James E. Powell's exclusive right to part of the river is contrary to the view taken by the learned District Judge. If the right of fishing was reserved by virtue of the clause to which we have referred, then that right would still have remained notwithstanding any change in the course of the river. As already stated, the case has been decided by the learned District Judge on a preliminary point. We accordingly allow the appeal, set aside the decree of the lower Appellate Court' and remand the case to him under Order XLI, Rule 23, with directions to re-admit the appeal upon its original number on the file and to proceed to hear and determine the same according to law, paying due regard to what we have stated. Costs here and heretofore will be costs in the cause and will include in this Court fees on the higher scale.


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