1. This appeal arises out of a suit relating to a jalkar in certain kopras or sheets of water which once formed the bed of the river Mahananda.
2. The plaintiffs claim them as part of their putni. They allege that these kopras have no connection with the present river Mahananda. The defendant claims them as part of his jalkar in the Mahananda river. The Courts below have concurred in decreeing the suit. The defendant has appealed to this Court.
3. It is found that the kopras lie within the plaintiffs' putni. It is also found that the river has completely changed its course and moved many miles away from the kopras, which are now surrounded by culturable lands. The defendants, however, claim a right to the kopras on the ground that they are connected with the river at certain seasons of the year. But the learned Subordinate Judge finds: 'It is clearly the flood water of the mighty Pudda which inundated the entire country that gets into them and rehabilitates the connection.' Several cases have been cited in argument before us.
4. In an early case on the point Grey v. Anund Mohun Moitro (1864) W. R. 108 the Rule of law is thus stated: 'If the river simply changed its course, and there is nothing to modify the conclusion which the Court ought to draw from that 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 damoores in which water remains, but which do not communicate with the river except in the time of floods.'
5. The recent case of Sarat Chandra Singh v. Chandra Mohan Bandhopadhya 7 Ind. Cas. 140 : 12 C. L. J. 216 shows that a grant of fishery right in a river does not give to the grantee title to fish in sheets of water adjacent to the river with which the river communicates only in the time of flood.
6. Reliance is placed on behalf of the appellant on the cases of Ahmadi Begum v. Mahasy Taranath Ghosh 21 Ind. Cas. 233 : 17 C. W. N. 1173 : 18 C. L. J. 399 and Jogendra Narayan Roy v. Crawford 32 C. 1141 : 2 C. L. J. 569 But in these cases, the jalkars were part of, and in the bed of, the river itself. In Jogendra Narayan Roy's case 32 C. 1141 : 2 C. L. J. 569, Maclean, C. J., referred to the finding of the learned District Judge, namely, 'five or six years ago, the channel in dispute was part of the bed of the river; it lies in chur land, which is annually submerged and, in the rains, the current through this channel is strong enough to cut away the bank. When floods go down, the channel continues for a time to be connected with the river, but the connection may dry up in the hot weather. The damoos is still so far a part of the river system that it may in a single year form a new mouth or channel of connection with the river, as it did in 1309. In such circumstances I consider that it is in effect still an arm of the river and that the plaintiff, who has also all the general rights of fishery in that part of the Ganges, is entitled to the fishery of the disputed channel', and held that 'the disputed water then having been part of the bed of the river and the plaintiff having fishery rights in the adjacent Ganges and the two being connected, a long current of authority would appear to establish that the plaintiff is entitled to the fishery rights he now claims.'
7. In Ahmadi Begum's case 21 Ind. Cas. 233 : 17 C. W. N. 1173 : 18 C. L. J. 399, the bheels were no doubt at a distance of some miles from the dry weather stream of the Ganges. But Jenkins, C. J., pointed out: 'When the annual rains are established this dry weather stream extends on its southern side as far as that which the defendants describe as the southern high bank of the Ganges, thus covering the bheels in suit which lie to the north of the bank.'
8. Then again he said: 'To change from a stream, a mile or so in width, to an expense of Water 10 miles across is remarkable, but it is nothing unusual in this part of the river Ganges; it is of regular annual occurrence. Nor is the increase in volume so transient as to be negligible for the purpose of considering whether the flood stream is a part of the river; it lasts each year for a couple of months and notwithstanding its expanse, there is a current in it from west to east, though naturally not a strong one. This increase of the volume of water, extending as far as the southern high bank, is not an inundation, it is the normal flood stream of the Granges and an integral part of the river.'
9. It was clearly found in that case that the bheels lay between the banks of the Ganges and the bed of the river and the case of Rama Nath v. Ishan Chandra Banerjee 2 Seves 463 and the other cases relied upon on behalf of the appellant were distinguished on the ground that in none of them the bheel was actually in the bed of the river over which the claimant had jalkar rights.
10. The case of Jogendra Narayan Roy v. Crawford 32 C. 1141 : 2 C. L. J. 569 was referred to as showing that jalkar rights extend to waters in the river-bed, though they are not connected with the waters of the flawing stream throughout the year. The learned Chief Justice farther observed: Each case must depend on its own peculiar circumstances. Where the right of fishery is in a river, then the Court has to be satisfied on a consideration of all the material facts and conditions whether it can fairly and reasonably be said that the waters over which the fishery is claimed are a part of the river. In this case I think it may, fairly and reasonably be said that the bheels in suit are throughout the year a part of the river Ganges. They certainly are such during a part of each year and they lie in that which throughout has been and still continues to be a part of the river-bed.'
11. In the same case Mookerjee, J., also observed: It is indisputable upon the evidence that from year to year during the rains, the river attains a breadth which varies from 8 to 10 miles and this state of things continues during a period of at least two months. There is no room for suggestion that this is an accidental phenomenon, a flood or an innundation, a temporary overflow due to extraordinary rains or some similar exceptional causes.' Referring to the principle that a grant of fishery right in a river does not give to the grantee a title to fish in sheets of water adjacent to the river with which the river communicates in the time of floods, he remarked: This principle, however, has no application to jalkars situated in the bed of the river itself; the grantee of a fishery right in the river is entitled to fish in all waters comprised within the banks of the river, and the circumstance that a particular sheet of water may, during a part of the year, be disconnected from the flowing stream or permanent current, does not affect the rights of the grantee.'
12. In the recent case of Srinath Roy v. Dinabardhu Sen 25 Ind. Cas. 467 : 18 C. W. N. 1217 at p. 1231 : (1914) M. W. N. 654 : I. L. W. 733 : 16 M. L. T. 319 : 12 A. L. J. 1193 : 20 C. L. J. 385 : 16 Bom. L. R. 901 : 42 C, 489 : 42 J. A. 221 (P.C.), decided by the Judicial Committee, their Lordships held: It must now be taken as decided in Bengal that the Government's grantee can follow the shifting river for the enjoyment of his exclusive fishery so long as the waters form part of the river system within the up stream and down-stream limits of his grant.'
13. In the present case, as has already been stated, the river Mahananda entirely changed its course and moved many miles away from the kopras. These kopras are completely isolated and are not part of the bed of the river. There is no connection with the river except when the whole country is inundated by the flood water of another river.
14. It is contended on behalf of the appellant that the case should be remanded for a clear finding as to whether the kopras are situated within the banks of the river. We think it unnecessary to do so having regard to the facts found. The river Mahananda is a small river. It has moved many miles away and it was not the case of the defendants that the kopras lie in the bed of the river. Their case was that the kopras are connected with the river at certain seasons of the year but we have seen that the connection is caused by the inundation of another river Padma.
15. The appeal fails and is dismissed with costs.
16. It appears that there was an agreement between the plaintiff Lalit and the defendant on the 3rd June 1909 in respect of the jalkar in this case. It was agreed that the estate of Maharaj Kumar Sasi Kant Acharya will be entitled to fishery rights in the river Mahananda beyond the boundary line referred to in paragraph 1 and so long as either mouth of the said river Mahananda remains open to navigation by country fishery boats.' But the river having changed its course so completely, the provisions of the agreement cannot apply to these koprns. The learned District Judge observes: ' It is an unfortunate thing that it was almost about the date of the sig(sic)rling of the document that the river went away but this cannot affect the question of the actual terms of the deed.'
17. We are of opinion that the Courts below have taken the right view and the appeal must accordingly be dismissed with costs.