1. On the view we take of this case, it seems to us that this reference is unnecessary. Apparently, the learned Judge who made this reference thought that there was conflict of decisions on the Question of oublic policy in allowing grant or acquisition, by ores-cription through long immemorial usage or custom, of fishery right in territorial waters in the sea coast of the State. On that Question, in Viresa v. Tatayya, (1885) ILR 8 Mad 467. decided by Turner, C. J. and Muttusami Ayyar, J.. it was held that the right of the public to fish in tidal waters in British India might be curtailed by an exclusive privilege acouired by grant or prescription by certain persons within certain limits, and that such an exclusive privilege being an infringement of the general rights of the public, it could be acquired by a period of enjoyment which would suffice for the acouisition of an easement against the Crown. That was a case of tidal river. In the district of Krishna, there was a lake by name Kolleru. whence a stream, UPPU-teru. took its rise and flowed into the sea, being throughout its whole course tidal. At a distance of 6 to 8 miles from the head of Upputeru, there was a village called Kondangi which was the residence of the plaintiffs. At a carticular season, the plaintiffs threw nets across the river in the neighbourhood of their village and fished and they did so to prevent anv other person from placing similar nets at any point between their village and the place at which the stream issued from Kolleru lake. Their complaint was that the defendants in that litigation interfered with the exercise of that right and prayed for a perpetual injunction restraining the defendants from interference. The learned Judges examined the question whether such an exclusive right as was claimed by the plaintiffs, was given at all or acquired. Adverting to the law in England on the subject, the Court said-
"Although the general if not the universal law of civilised nation recognises in all citizens a common and general right of fishing in the sea and in all bays, cover, branche and arms of the sea and in all navigable and tidal waters, this right within the territorial waters may be restrained or regulated by the Legislature, and it may be curtailed by an exclusive privilege acquired either by grant or prescription by certain persons within certain limits. This exclusive privilege may apply to all fish to be found within such limits and to all methods of fishing or only to certain kinds of fish or a certain method of fishing. Inasmuch as the property in the soil is presumed to vest in the sovereign power on behalf of the public where private ownership of the soil is not, proved, the right to fish in the waters which flow over it can be asserted in England only by virtue of a grant from the sovereign power or by such degree of exclusive use and occupation as is sufficient to raise a presumption that such a grant has been made though not now appearing."
The learned Judges then referred to Sir William Blackstone who confined the term 'free fishery' to an exclusive right of fishing in a public river which was not adopted by other authorities. The position in England was stated to be that the importance of protecting the common right of all classes to fish in nublic waters was so highly regarded that by Magna Charta the orerogative of the Sovereign to make, such grants was restrained. It appears that in the reign of Edward I a statute was passed which prohibited the total interruption of navigable streams by the erection of weirs or other machinery for fishing. Having said that, the Court observed-
"In England, then such a prescription in public waters must be founded on immemorial use and occupation, and in the ease of navigable streams the maintenance of a fishing weir which interrupts navigation cannot be claimed, if there is evidence that it came into existence subsequently to the statute of Edward I."
So far as India was concerned, the Court said-
"In this country, we know of no law which prevented the Sovereign from making a grant of a common of fishery. There is no law, nor do we know of any custom, which distinctly determines the period of exclusive possession necessary to prove a title by prescription to such a common of fishery; but as an infringement of the general rights of the public, it is dear that the right could be acquired by a period of enjoyment which would suffice for the acquisition of an easement against the Crown"
But the orecise point as to whether such acquisition would be contrary to public policy, was not decided in that case. It was. however, pointed out-
"But. assuming that the plaintiffs had not established a right to such a common of fishery as they claimed, they may have established a right to a fishery of such a nature that they are entitled by custom to prevent the exercise of a similar right by any other person within a distance, which would necessarily iniure the exercise of the right by the plaintiffs"
Narasayya v. Sami, (1889) ILR 12 Mad 43. also related to the same river as in (1885) ILR 8 Mad 467. The plaintiffs in that case claimed a right to catch fish in the, tidal river at a certain place by putting nets across the river, and this right was claimed on the basis of a custom which was not denied by the defendants. The custom was alleged to be obtaining for 30 years. The claim of the plaintiffs was upheld. (1885) ILR 8 Mad 467 was referred to for the theory that unless the enjoyment was proved to be for 60 years, the right claimed by the plaintiffs could not be upheld. But the learned Judges were of the view that, since there was no precise period prescribed by law, 30 years eniovment would be quite sufficient to acquire that right. The learned Judge who referred the matter to us, did so because he thought that these two decisions were in conflict with Sethu Karuppan v. Peer Mahammad. ILR 58 Mad 876 = (AIR 1935 Mad 350). That was a case to set aside an order made under Section 147. Criminal P- C. There was a system of fishing well-known upon Ramnad coast, whereby a long net was hung like a curtain in the sea, being supported by floats and kept vertical by weights. This net was laid parallel to, and at some distance from, the shore, and was then pulled in by means of ropes fixed to the two ends. In this wav a catch of fish was landed. In that particular case, the system embraced the use of successive nets. There was an arrangement between Muhammadans and Hindus by which they were to share the fishing right in the ratio of 5 to 3. Disputes having arisen subsequent to that arrangement. the Muhammadans obtained a restraining order under Section
147. Criminal P. C. against the Hindus. Curgenven and King, JJ. set aside that order. One of the grounds on which they did so. was expressed thus-
"It appears to be indisputable that in general none can acquire a right, exclusive against the oublic or any other per- son. to fish in any particular area of the open sea, or in that part of it. within three miles of the shore, known as territorial waters".
In support of this proposition, the observations in Coulson and Forbes on Waters and Land Drainage were relied on. A further quotation was also extracted from the judgment of Westropp. J.. in Baban Mayacha v. Nagu Shanucha. (1877) ILR 2 Bom 19.
2. We do not think that this case was at all in conflict with the earlier decisions. It was not decided in that case that the order set aside was opposed to public policy as such, because it was only a dispute between the two parties and the public in general was not involved. We are of opinion that in none of the three cases we have referred to, each of which was concerned with a dispute as between two sets of parties each of whom claimed exclusive right to fish in tidal rivers or territorial waters, the question of public policy forbidding fishing right in tidal rivers or territorial waters was raised or decided. No doubt. ILR 58 Mad 876 = (AIR 1935 Mad 350) considered that none could acquire a right, exclusively against the public or any other person, to fish in anv particular area pf the open sea, or in that part of it within three miles of the shore, known as territorial waters. But the question was not adequately considered and the decision could be rested on the ground which the learned Judges had given. The question of public policy being opposed to acquisition of a right to fish in territorial waters did not arise and the observations, which we have referred to in ILR 58 Mad 876 = (AIR 1935 Mad 350) could only be taken as obiter. We say so. particularly because that was a case between two sets of parties not involving the general public. It was for these reasons we mentioned at the outset that there was no conflict between any of the three decisions.
3. Where exclusive right to fish in territorial watefs within three miles of the shore is claimed as against the general public, the question may arise whether such a claim or right is opposed to public policy and, therefore, could not be supported or acauired either by srant or prescription through custom or immemorial user. That question, however, does not arise in this case. Here, we are concerned with two sets of villagers who for the sake of preventing disputes among themselves have entered into a compromise in O. S. 96 of 1946 on the file of the District Munsif Court, Pattukottai, whereby they have get apart exclusive areas defined in the memorandum of compromise in which each set of the villagers will have exclusive right to fish and this is not a case where two sets of the villagers or any of them claimed a right as against public in general. It seems to us that there is no public policy involved in a private individual, who has as much right to fish in territorial waters, in agreeing with another, who has a similar right to fish in the same, that as between themselves they will have separate areas set apart for fishing either because of mutual convenience or because of a desire to avoid conflicts or disputes. In fact, such an arrangement would serve the ends of public policy rather than the same being opposed to it. We are not deciding in this case whether the public in general, when they come in conflict with the arrangement that has been made as between two parties by compromise, will, by virtue, of the compromise, be prevented from exercising their right, if anv: nor do we decide the right of the Government, in olden days the Crown, in territorial waters in respect of fishing right vis-a-vis the exculsive right claimed by an individual or a section of the oublic by prescription or immemorial user.
4. The parties in this case having openly come to a compromise, which was embodied in a decree in O. S. 96 of 1946. on the file of the Court of the District Munsif, Pattukottai. we are of the view that they are bound by it and the compromise was not opposed to Public policy.
5. The second appeal will accordingly stand dismissed with costs throughout.