Chunder Madhub Ghose, A.C.J. and Geidt, J.
1. The subject-matter of the suit, out of which this appeal has arisen, is a fishery, or, rather, the right of fishery in a certain navigable river. The plaintiff is a taluqdar under the zemindar of pergana Hosensahi, and he claims the jalkar right in the fishery called Gorantra, The Munsif, who went very fully into the matter of the plaintiff's right to this jalkar, referred in his judgment to a proceeding of the year 1860, before the then Collector of Mymensingh, in which the plaintiffs' predecessors 'were parties, and in which action seems to hare been taken for the assessment of the revenue upon the Gorantra river; and the Collector, having regard to a certain purwona of the Revenue Court of the 5th Assar 1198, and a sanad of Raja Ram Krishna Roy dated the 27th Bhadra 1198, held that the jalkar of pergana Jainshye was included in the permanent settlement, and, therefore, no further revenue could be assessed upon the river in question. He also referred to other evidence, one of them being Ex. 5, a settlement proceeding of the Collector of Tipperah, from which, he concluded that, though there was nothing to show an express grant by Government of the jalkar right to the plaintiff or to his predecessor in the river Gorantra, yet such grant might well be presumed. He conclude I his judgment as follows: 'I, therefore, hold that the long-continued user of the plaintiff under a title which was regarded as valid when scrutinised by the authorities can only be imputed to a valid grant, and consequently I find that the plaintiffs have title to the jalkar.' Result was that the plaintiffs title to this jalkar was declared. On appeal by the defendant, the Subordinate Judge has held that the plaintiffs have adduced no satisfactory evidence to show that they held the jalkar under a settlement from Government, and that such a grant or settlement cannot be presumed, but should be proved by positive evidence. He then refers to the proceedings, which are relied upon by the Munsif, and says that these documents do not bear out the plaintiffs' alleged grant, and that no inference can be drawn from these proceedings as to the plaintiffs having any right to the jalkar in suit, unless it is satisfactorily proved by any reliable evidence. We hardly think that the Subordinate Judge really appreciated the true position of things. No doubt, as the Court of first instance has stated, no evidence of an express grant is forthcoming; but still it may well be that, from long-continued user and from the orders passed by the revenue authorities from time to time in respect to this jalkar, a grant may be presumed. And it seems to us that the learned Subordinate Judge was not right in saying that, unless there be any positive evidence of a grant by Government, such grant could not be presumed. We are, therefore, constrained to set aside his judgment, and remand the case to him for reconsideration. It will be his duty to consider all the evidence which the Court of first instance referred to and the other evidence in the cause, and find whether, from such evidence, a grant may be presumed to have been made by Government in favour of the plaintiffs' predecessor. And in this connection we desire to call his attention to the case of Hori Das Mal v. Mahomed Jaki (1885) I.L.R. 11 Calc. 434.
2. Costs will abide the result.