1. In substance the case set up by the plaintiff in this suit was that, instead of exercising his admitted right to collect rent at a fixed rate from the royts of Manjoori village for fishing in the village tank, he had a right to catch the fish himself to the exclusion of those royts who had hitherto been enjoying this privilege, or to lease out the fishery to strangers. In the plaint, after setting out his title, which is based on a seventy years' lease of the village of Manjoori from the Rajah of Ramnad (vide Exhibits A and B), he proceeded to allege that the defendants had obstructed him in the enjoyment of his alleged fishery rights, and to ask for a declaration of his title and for an injunction restraining defendants from interfering with his enjoyment, and for damages.
2. The District Munsif dismissed the plaintiff's suit, finding on the first issue that the plaintiff was not the exclusive owner of the fishery in the plaint tank. This finding would have been enough for the dismissal of the suit. There were also other issues. The sixth issue raised the question whether the plaintiff or his pre-decessor-in-title had exclusive possession of the fishery within 12 years before suit. The District Munsif found this issue also against the plaintiff and added that the ryots had, by long enjoyment, acquired a prescriptive right to the fishery, which was a finding that did not arise out of the issue as framed.
3. On appeal the Subordinate Judge found that the plaintiff had failed to establish either title or enjoyment within the statutory period and he dismissed the appeal on both grounds.
4. It is now argued that the lower Courts were in error in requiring the plaintiff to prove possession within 12 years of suit under Article 142 of the Limitation Act, and that the Article of Limitation applicable to this suit being Article 144, the burden of proving adverse possession for over 12 years should have been cast on the defendants.
5. It is true that the District Munsif has found a prescriptive title to exist in the defendants without an issue being raised on the question and that the Subordinate Judge has not found it at all.
6. I am of opinion that Article 142 was not appropriate to this suit for a declaration of title and an injunction, and that, if the Courts found that present possession was not with the plaintiff, the proper procedure was to refuse to give a declaration of title under the proviso to Section 42 of the Specific Relief Act, for the reason that the plaintiff was neither in possession nor had asked for possession to be given him.
7. But on the allegations of fact in the plaint, no question of limitation arose, and the defendants' claim in their statement to have acquired a title by prescription was not put in issue at the trial.
8. The finding of both Courts on the first point, that of title, was enough to justify the dismissal of the suit, and that being a finding of fact, we cannot interfere with it in second appeal.
9. I do not think that the mere fact that the plaintiff had taken a lease of the village including the tank and had spent money in repairing the tank, relieved him from the necessity of proving his further assertion that the ownership of the tank carried with it the exclusive right of fishing in the tank, especially after evidence had been let in on the other side to prove that actual enjoyment of the fishery for a long series of years was with the ryots.
10. I agree with the Subordinate Judge's observation that, even if the plaintiff be the owner of the tank, that position is fully consistent with the ryots having the right of fishery over the same.
11. The Subordinate Judge, having found beyond any shadow of doubt that from the earliest period the fishery right in the suit tank is being enjoyed by the ryots subject to the payment of a fixed rent', might very well have found a title to exist in the defendants on the principle of a lost grant; as was done by the Privy Council in Bhola Nath Nundi v. Midnapore Zemindary Co. 31 I.A. 76 in respect of a right of pasturage enjoyed by a corporate body of villagers from time immemorial. But I do not consider it necessary to call for a finding on the point, nor do I consider in the circumstances of this case that any question of reasonableness' arises.
12. The second appeal fails and must be dismissed with costs.
13. The point at issue between the parties in this second appeal is whether plaintiff is entitled to take the fish from the Manjoori tank and channel in the Zemindari of Samnad, excluding the defendants from exercising any right of fishery in them. Plaintiff claimed the exclusive right as the lessee of the Zemindar and brought this suit on the footing that he was in possession and enjoyment of this right and that the defendants, who are the ryots of the Manjoori village, were trying to obstruct him. The main plea of the defendants was that they and their ancestors had been exclusively enjoying this fish 'in pursuance of a long established custom' on payment of a settled 'pasivari' or fishery cess to the Zemindar, which was included in their pattas. They also pleaded limitation. The lower Appellate Court held that plaintiff had failed to prove his title to the fishery and enjoyment of it within the statutory period of 12 years, applying Article 142 of Schedule I of the Limitation Act to the case, and dismissed the suit on the merits as well as on the bar of limitation.
14. Plaintiff has appealed to us and has contended that, on the question of title, defendants should have been called upon to prove the right they asserted as the tank in question being within the ambit of the Zemindari, its ownership and possession should have been taken to be prima facie in the Zemindar or his assignee, the plaintiff, and the right to fishery which is only an incident of the right of ownership should also be similarly taken to be prima facie in them. This argument, so far as it goes, is, in my opinion, well founded. But the Subordinate Judge has found that defendants have established on evidence the continued exclusive enjoyment they pleaded. That Judge says in paragraph 2 of his judgment that 'ancient documents produced on the defendants' side show beyond any shadow of doubt that, from the earliest period, the fishery right in the suit tank is being enjoyed by the ryots subject to the payment of the fixed rent.' In fact it is clear on the evidence that the Zemindar never tried to interfere with the ryots in the matter of fishing and it is only after the plaintiff-lessee came on the scene that attempts were made to so interfere; but all such attempts were frustrated by the opposition of the ryots. On these facts it seems to me there is a clear presumption in defendants' favour of a legal origin of their title. Lord Loreburn, Lord Chancellor, has stated in the case of Harris v. Chesterfield (Earl) (1911) A.C. 623 cited for the appellants on another point, the law on the question thus: 'When long and continuous enjoyment is established, a lawful origin will be presumed if it is reasonably possible. This doctrine has been repeatedly affirmed and in no case better illustrated than in that of Goodman v. Saltash Corporation (1882) 7 A.C. 633.' The doctrine was applied by the Privy Council in a case of pasturage rights over waste lands claimed by the tenants of a village against their Zemindar. See Bhola Nath Nundi v. Midnapore Zemindary Co. 31 I.A. 76.
15. Although the lower Court has not expressly referred to this doctrine, it has considered the evidence of long enjoyment and thrown the burden on the plaintiff to establish his title in defeasance of the defendants' claim arising from it and I think it is right in the circumstances in doing so, as there is a clear presumption in favour of the legal origin of the defend-ants' claim. It may well have been the result of a lost grant by a Zemindar or a lost agreement by him with ryots allowing them to take the fish permanently oh payment of 'pasivari'.
16. It was pressed upon us that as the question of presumption of a legal origin, was not pointedly raised in the lower Courts,, we should send the case back for trial on the point and finding thereon. I do not think it necessary to do so, as the facts required for it were stated by the defendants and evidence all taken and the Courts have given their opinion on that evidence. Issue No. 1 was wide enough to cover the question. It is not stated that there are any new facts to be considered with reference to this point. In similar circumstances their Lordships of the Privy Council disapproved of the course: of sending the case for a finding. See the case in Bhola Nath Nundi v. Midnapore Zemindary Co. 31 I.A. 76already cited.
17. It was next urged that from the very nature of the right claimed here it should be held to be one unknown to law and for which no legal origin could be presumed, and reliance was placed on the case in Harris v. Chesterfield (Earl) (1911) A.C. 623 : 27 T.L.R. 548 above cited. That was a case where 'a right by prescription in a que estate for a profit a prendre in alieno solo', viz., the right to take fish in the river Wye at a place where the bed of the river was in the possession of Lord Chesterfield and his co-plaintiff, the river being non-tidal there, was claimed by certain villagers as appurtenant to their tenements and the right claimed was expressly stated to be without stint and for commercial purposes, namely, to sell the fish in the market. Their Lordships by a majority of one held that such a right was unknown to law and should not be recognised, as the exercise of such an unlimited right tended to the entire destruction of the subject-matter of the right. The reasoning is clearly put in the judgment of Cozens-Hardy, M. R.; see the report of the case of Chesterfield (Earl) v. Harris (1908) 2 Ch. 397 in the Appeal Court, particularly the observations on page 410. That reasoning was adopted by the majority of their Lordships.
18. Now such a question as this has not been raised in the present case; and consequently the facts necessary for it have not been investigated. In the first place, it is not clear whether the right claimed here is not a right in gross vested in the ryots of Manjoori village as a body, in which case it may well be that no question of unreasonableness will arise, See the observations of Buckley, L.J., in the same case on appeal in the middle of the page 421. In the next place, assuming the right claimed is one appurtenant to the holdings of the ryots in the village, it does not seem to be an unlimited one, and without stint as in the English case. What the ryots claim is the right to take fish in the manner they have been taking for all these years. Such an exercise of the right has not hitherto led to the destruction of the fish in the tank nor apparently even to its diminution in numbers. There is no reason to assume a different result in the future. If there is excessive fishing the Zemindar may have a right to restrain it, but that is not the question here. I hold that the claim of the ryots cannot be rejected in second appeal on the ground of unreasonableness, as argued. I may observe that, though the rights of fishery in other people's waters are very common in India, particularly in the northern parts, no case has been cited to us from any of the Indian Reports where such a right has been negatived on the ground put forward above. I am therefore of opinion that on the finding of the lower Courts that plaintiff has failed to prove his title, which is a finding of fact on the evidence in the case and which we must accept in second appeal, his claim to disturb the long established practice in the village regarding the fishing in the tank was rightly rejected and his suit was rightly dismissed. It is not necessary to express any opinion on the question of limitation or on any other question raised in the case.
19. I agree that the second appeal fails and should be dismissed with costs.