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Promothonath Roy Vs. Juggobundhoo Shaha - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Judge
Reported in(1879)ILR4Cal767
AppellantPromothonath Roy
RespondentJuggobundhoo Shaha
Excerpt:
jalkar - fishery--occupation, rights of. - .....an independent title. he says in para 7 of the written statement that the daha, over which the fishery right had been exercised, was not formed in the mode alleged by the plaintiff; and he says: 'even if for argument's sake it be admitted that the channel of the katadara was excavated afterwards, still, as according to the map produced by the plaintiff the katadara appears to lie contiguous to my jalkar property, i am legally entitled to the right thereof, and the plaintiff is not entitled to get khas possession of the same'. again in para. 9 he says: 'since the creation of the jalkar katadara as shamilat, or appurtenant to the jalkar mehal bil boalia the rent was collected by the ijaradar of bil boalia, and remitted to the plaintiff's treasury. since i purchased the jalkar in the.....
Judgment:

Jackson, J.

1. The point submitted to us in special appeal is very short. It is whether the defendant, by reason of having enjoyed for a number of yeas on payment of rent to successive ijaradars, the right of fishery over a certain jalkar of which the plaintiff is the ground landlord, is entitled to retain and enjoy that right of fishery on payment of rent to the plaintiff against his will That is not, as appears to me, precisely the case submitted by the defendant to the Court below, for he set up in fact an independent title. He says in para 7 of the written statement that the daha, over which the fishery right had been exercised, was not formed in the mode alleged by the plaintiff; and he says: 'Even if for argument's sake it be admitted that the channel of the katadara was excavated afterwards, still, as according to the map produced by the plaintiff the katadara appears to lie contiguous to my jalkar property, I am legally entitled to the right thereof, and the plaintiff is not entitled to get khas possession of the same'. Again in para. 9 he says: 'Since the creation of the jalkar katadara as shamilat, or appurtenant to the jalkar Mehal Bil Boalia the rent was collected by the ijaradar of Bil Boalia, and remitted to the plaintiff's treasury. Since I purchased the jalkar in the year 1276, I have been in possession of it on payment of rent in accordance with the former practice through the ijaradars of the aforesaid Bil Boalia. Under these circumstances the plaintiff is not entitled to get khas possession'. However taking the point as stated by the learned Counsel for the special appellant, it has been decided by the Subordinate Judge on this principle, that the right of occupancy which accrues to tenants, who have occupied or cultivated land for twelve years or upwards, does not arise in respect of the right called jalkar or fishery. The Subordinate Judge states, and we think correctly, that that is a right which may be let out by the ijaradar under the landlord, and may be enjoyed under him so long as his ijara continues, but is liable to be determined at the expiration of the ijara. If the defendant has been unable to come to terms with the plaintiff, who has re-entered on possession of the land, we think he is not entitled to retain the fishery against the plaintiff's will. The ground title which he set up appears to have failed in the judgment of the lower Appellate Court, and the plaintiff necessarily had judgment. The appeal must be dismissed with costs.


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