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Tarini Churn Sinha and anr. Vs. Watson and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal963
AppellantTarini Churn Sinha and anr.
RespondentWatson and Co.
Cases ReferredSibessury Dabee v. Lukhy Dabee
Excerpt:
fishery, right of - jalkar--navigable river--change in course of theriver. - ameer ali, j.1. the point involved in this appeal is whether a right of jalkar in a public navigable river can exist apart from the right to the bed of the river, or must it necessarily follow that right. both these questions have been raised and discussed in other cases; still they are of some difficulty. the facts of the case are these: the river howlia, which is a public navigable river, flowed, prior to 1283, in a certain course; and it seems to have in 1283, or thereabouts, adopted a different channel, and is now running over a portion of the plaintiffs' land. the plaintiffs sue to establish their jalkar right over that portion of the river which flows over their land. admittedly, the defendants have a jalkar right by grant from government over this river within certain specified.....
Judgment:

Ameer Ali, J.

1. The point involved in this appeal is whether a right of jalkar in a public navigable river can exist apart from the right to the bed of the river, or must it necessarily follow that right. Both these questions have been raised and discussed in other cases; still they are of some difficulty. The facts of the case are these: The river Howlia, which is a public navigable river, flowed, prior to 1283, in a certain course; and it seems to have in 1283, or thereabouts, adopted a different channel, and is now running over a portion of the plaintiffs' land. The plaintiffs sue to establish their jalkar right over that portion of the river which flows over their land. Admittedly, the defendants have a jalkar right by grant from Government over this river within certain specified limits; and there is no question that the jalkar, which is claimed by the plaintiffs, falls within that limit; it is also undisputed that the river in its. present channel is a public and navigable river. The Subordinate Judge held, apparently on the authority of the case of Sibessury Dabee v. Lukhy Dabee 1 W.R. 88 that, inasmuch as the destruction of the river was sudden and not gradual, the defendants are not entitled to their jalkar right over the river in its present course, but that their right is restricted by the rights of those over whose lands the river now flows; and in that view of the matter he made a decree in favour of the plaintiffs. He says: 'under these circumstances '(referred to by him in the judgment),' I am of opinion that the right in this portion of the jalkar has become vested in the plaintiffs, they being owners of the bed of this river.' On appeal to the District Judge, that Court took a different, and, we think, a correct view of the principle applicable to the case. It seems to us that the decision of the case depends upon the answer to the question-Do the defendants lose the right, admittedly vested in them, by a change in the course of the river, though the river does not lose the character of a navigable river, and continues subject to the rights of the public as before? We think the principle applicable to the case was discussed and enunciated so early as 1864 in the case of Gray v. Anund Mohun Moitra W.R. 1864, p. 108 before LOCH and NORMAN, JJ. In that case it appeared that the river over which the defendant had a right of fishery had changed its course and formed an inlet Afterwards it resumed its old course, leaving the inlet separate and dry. In a suit by the owner of the bed of the inlet, Norman, J., referring to the Institutes, said: 'We find it laid down that if a river, leaving its natural channel, flows in another course, the former channel belongs to them who possess the farms on its banks, to each man according to the breadth of his land on the bank; and the new channel is subject to that law which governs the river, that is, it becomes public. But if, after some time, the river returns to its former channel the new channel again belongs to them who have the farms on its banks.' And then in another passage, 'applying these principles to the present case, if the river simply change its course, and there is nothing to modify the conclusion which the Court ought to draw from the simple fact, the old dry course of the river must be taken to have become private property. And as incident to and part of the same, the owner of the soil is entitled to all bheels or ponds, gulfs or damrorees, in which water remains hut which do not communicate with the river except in the time of floods, and he could have claimed a settlement with the Government in respect of any jalkar in the same. The right of the defendant to the fishery in the water in question being merely granted out of, and a part of, the right of the Government to the river can no longer exist where the right of the Government itself is gone.' There, as it seems to me, the learned Judges held, the inasmuch as the inlet of the river had become separated from the main channe and had partially dried up, and Government had lost its right in respect to it, the right of the defendant also was lost. But the principle laid down was- that so long as the river retains its navigable character, it is subject to the rights of the public, and the right of fishery remains in the person who held it under a grant from Government. In the present case, which is the converse of Gray v. Anund Mohun Moitra, there is no question that the defendants had been for a long time in the enjoyment of the right granted to them by Government, and that the river which forms the subject-matter of the dispute is still a public navigable river. The case of Sibessury Dabee v. Lukhy Dabee 1 W.R. 88 has no bearing on this question at issue here. In that case, the dalia, or streamlet, respecting which the dispute was, formed a separate and apparently dried up armlet of the river Hughli, and the learned Judges there held that an anterior right of fishery did not necessarily attach to the streamlet, which had no connection with the river Hughli. We are accordingly of opinion that the view taken by the learned Judge below is the correct view, namely, that the defendants have the right over the river in its present course to the same extent and under the same limits as they possessed previous to the change in its channel, and that the plaintiffs are not entitled to the relief which they seek.

2. The appeal is therefore dismissed with costs.


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