1. With regard to Special Appeal No. 868, which has just been argued, no doubt it raises a question of very considerable importance, and one which-perhaps, at any rate on this side of India (see Baban Mayacha v. Nagu Shravucha, I.L.R., 2 Bom., 19), has not yet been finally decided. Therefore, i f we had finally to give our opinion upon that question, we should hesitate in doing so when the matter has not been fully argued; but it is not necessary to decide finally in this case what the rights of the parties are in a tidal navigable rive. That any private right of fishery, such as is claimed here, must be derived from the Crown, if it exists at all, is, I think, a matter which is beyond dispute; and I think it also beyond dispute that any such right as this must he established by very clear evidence indeed, and that the presumption would be against any such private right. There is a still further doubt whether such a right as this can be created. The order of' the Board of Revenue referred to by the Munsif in this case shows that, in the opinion of the Board of Revenue, no private right of fishery can be created. This was so stated in the order of the Board dated the 6th of November, 1868: 'The Government is a mere trustee on behalf of the public in respect of tidal rivers, and the exclusive right of fishery in tidal rivers cannot be granted to private individuals, or to certain classes of persons, to the exclusion of the public.' Without going so far on the present occasion as to say finally that that view of the law is right, and that it is impossible for the Crown to create a private right of fishery, we still think that, even if that be possible, no such right has been made out in this case. All that the plaintiff has proved is that in the quinquennial papers which describe the property which was permanently settled with him by Government, be is stated to be the owner of jalkars in a certain zamindary. But, assuming that the part of the river to which this suit relates is within the zamindary (which does not seem to be very clearly proved), the mere use of the word 'jalkars' would not, in my opinion, give a right of fishery in a public tidal navigable river. This word may be perfectly satisfied by applying it to the right to fish within enclosed water, such as a jheel in a zamindary; and following the rule I have mentioned, I think we ought not to extend the right to a public navigable river if the words do not necessarily cover such a right. No doubt, as is contended before us, we may look to the user as being under a grant; and we think we must take it in this case that, as a matter of fact, since the year 1207, the zamindar has obtained something in the shape of rent from persons who were in the habit of fishing in the river. But I am not myself prepared upon that evidence to give to the word 'jalkars,' contained in the quinquennial papers, the wider construction which is here asked for. It may very likely be that the zamindar has asserted some right of the nature which he now claims; but I think that it requires something stronger than the mere fact of his having collected Home rent from the persons who were fishing in the river, to show that, under the word 'jalkars,' the Crown intended to grant him the exclusive right of fishery in a tidal navigable river.
2. I do not think it necessary to send this case back, because I find upon the documents, viz., the quinquennial papers and the evidence of user, which are the only evidence in this case, that the District Judge could not legally find, and ought not to find, that the plaintiff has the right which he claims. I think, therefore, although for reasons somewhat different from those given by the District Judge, that the suit is rightly dismissed. The special appeal must be dismissed, but without costs, as no one appears for the respondent.
3. I agree in dismissing this case, because in my opinion it has been rightly held that the plaintiff has failed to establish the right that ho claims.