G.N. Das, J.
1. These Letters Patent Appeals arise out of suits for recovery of rent in respect of a jalkar in the river Ichhamati which again is a part of a bigger jalkar called Jalkar Jainti Gachi. The defendants are the appellants in this Court. The plaintiffs claim rent at the rate of Rs. 1-6-0 per boat and 0-11-0 as per man. The claim is for the period 1344 to 1317 B. S. The plaintiffs claim the right to recover rent as lessees from 91/2 AS. as proprietors of the jalkar. The proprietors are said to be entitled to an exclusive right of fishery in the said jalkar. The remaining 61/2 as. proprietors are not parties to the present suits. The plaintiffs however claim 16 As. rent on the ground that they have acquired a right thereto on the basis of the lease granted by 91/2 As. proprietors and by long possession. The basis of the claim is a settlement alleged to have been taken by the defendants from the plaintiffs. In the plaint the plaintiffs claim either rent on the basis of the settlement or in the alternative if the settlement is not proved, a fair compensation.
2. The principal defences to these suits were (1) that the plaintiffs are not the 16 As. proprietors and in the absence of the 61/2 As. co-sharer proprietors the suits are not maintainable. (2) The plaintiffs' right to the several fisheries on the basis of the lease was disputed. (3) It was also asserted that the tenancy set up by the plaintiffs was unknown to law. (4) It was further pleaded. that the defendants as members of the public are entitled to fish in the disputed fishery without payment of any rent, the fishery being a part of the public domain.
3. The trial Court was of the opinion that the plaintiffs were entitled to claim 16 As. rent on the basis of their lease from 91/2 AS. proprietors and long possession. On this ground it was held that the 61/2 As. proprietors were not necessary parties. The tenancy pleaded was held to be not unknown to law. The Court found that the settlement by the plaintiffs to the defendants for the period in suit was not proved. The Court, however, passed a decree for the amounts claimed on the ground that even in the absence of proof of tenancy right the plaintiffs should be entitled to damages from the defendants. The suits were accordingly decreed.
4. The defendants preferred appeals to the lower appellate Court. The first lower appellate Court affirmed the decrees of the trial Court. It came to the finding that the defendants were not entitled to fish in the disputed jalkar as a part of the public domain. The plaintiffs' title to claim 16 as. rent from the defendants was found by that Court. The settlement with the defendants for the period in suit was not established but the decrees of the trial Court were maintained on the ground that the plaintiffs were entitled to recover the amount claimed either as rent or as damages.
5. Against the decrees passed by the first lower appellate Court second appeals were taken to this Court. The second appeals were heard by our learned brother Mookerjee J. At the time of the hearing of the second appeals a preliminary objection was taken on behalf of the respondents that the second appeals were incompetent being barred under the provisions of Section 153, Ben. Ten. Act read with Section 193 of the said Act. The preliminary objection was sustained by the learned Judge and the second appeals were dismissed on this ground. Leave to appeal under the Letters Patent was given by the learned Judge. Pursuant to the leave so granted these appeals were filed by the defendants.
6. The first question which calls for our determination is whether the second appeals were competent. I have already stated that the first lower appellate Court overruled the defendants' plea that they had a right to fish in the jalkar as a part of the public domain and upheld the claim of the plaintiffs to recover either rent or damages from the defendants on the ground that the plaintiffs have established their 16 AS. right to claim rent or damages in respect of the fishery. The question whether the appeals to this Court were barred or not, depends on the interpretation of Sections 193 and 153, Ben. Ten. Act. Section 193 states that the provisions of this Act applicable to suits for the recovery of arrears of rent shall, as far as may be, apply to suits for the recovery of anything payable or deliverable in respect of rights of pasturages, forest rights or rights over fisheries and like. Our learned brother Mookerjee J. was of the opinion that Section 193 attracted not merely the procedural part but also the substantive part of the Act and as such the provisions of Section 153 were attracted to suits for recovery of rents in respect of rights over fisheries. On this ground the appeals were held to be incompetent. Before our learned brother no question was raised about the applicability of the exception to Section 153, Ben. Ten. Act.
7. Conceding that Section 153, Ben. Ten. Act applies to suits for recovery of rent in respect of tights over fishery a further question as regards the applicability of the exception to the first part of Section 153 has to be considered. The exception applies in cases where
'the decree or order has decided a question relating to title to land or 'to some interest in the land as between parties having conflicting claims thereto or . . . . . . .'
In the present case, the plaintiffs claim a right to recover rent in respect of their right to the fishery. The defendants dispute that right and set up in themselves an independent right to fish free of the obligation to pay any rent or damages to the plaintiffs. There is thus a clear conflict between the parties as regards the right to fish in the Jalkar. The first lower appellate Court decided this conflict in favour of the plaintiffs and against the defendants. Prima facie, therefore, the exception would apply. Mr. Paresh Nath Mukherjee, appearing for the respondents, however, contends that the conflicting claims between the parties do not relate to 'title to land or to some interest in land' and as such the exception to the first part of Section 153 does not apply. This contention receives support from the literal sense of the words used. We are however to consider the general intention of the Legislature as manifest in Section 193 which seeks to incorporate all the provisions of Act relating to suits for recovery of rent. In my opinion, the Legislature never intended that the main part of Section 153 would be attracted and the exception thereto would be inapplicable. A liberal and reasonable construction has to be put upon the words used, a construction which would advance the clear intent of the Legislature in enacting Section 193. In my opinion, the words 'land or some interest in land' must be read as meaning the subject-matter in respect of which the claim to recover rent is made. If the words are so construed it follows that the exception to first part of Section 153 applies to the facts of this case. This aspect of the matter was not placed before our learned brother. In my opinion the second appeals preferred to this Court were competent and the decision has to be set aside on that ground.
8. The merits of the controversy were not gone into in this Court. Learned advocates appearing before us stated that instead of the case being remitted to our learned brother the same may be considered by this Court. We have accordingly heard the learned advocates on this point and proceed to record our opinion on the points raised.
9. Mr. Roy Chowdhury appearing for the defendants-appellants first contends that the plaintiffs had failed to prove their exclusive title to recover rent in respect of the jalkar as a part of the exclusive fishery of the plaintiffs lessors. It appears from the judgment of the first lower appellate Court that the title of the plaintiffs lessors to the jalkar as their exclusive fishery was not seriously disputed before that Court. The question of the plaintiffs' title under the lease 91/2 annas proprietors was also not disputed. The only point which was canvassed was whether the plaintiffs as lessees only from 91/2 annas proprietors were entitled to realise 16 annas of the rent claimed. So far as this point is concerned there is a clear finding of the first lower appellate Court. The lower appellate Court points out that in the suit of 1889 the present plaintiffs asserted their exclusive title to the jalkar. The remaining 61/2 annas proprietors were parties to that suit. The trial Court decreed the plaintiffs claim. On appeal to this Court the title of 61/2 annas proprietors was, however, left open. The lower appellate Court has further found that since that suit the plaintiffs have been realising 16 annas rent from the fishermen including the defendants. Such possession following upon an assertion of 16 annas title of the plaintiffs is sufficient to support the finding of the first lower appellate Court so far as the plaintiff's right to recover 16 annas rent or damages is concerned. The first contention raised by Mr. Roy Choudhury must, therefore, be overruled.
10. Mr. Roy Choudhury next contends that even assuming that the plaintiffs have the right to recover 16 annas rent from the defendants, in view of the findings of the first lower appellate Court that the plaintiffs have failed to prove settlement for the period in suit, the plaintiffs cannot claim rent from the defendants on the basis of an implied agreement spelt out by the first lower appellate Court. This contention may be correct. The first lower appellate Court has, however, based its decision on the ground that the plaintiffs are entitled to claim the amounts stated in the plaint either as rent or as damages. We have therefore to consider whether the plaintiffs can claim the amounts in suit as damages. Mr. Roy Choudhury contends that there was no basis for supporting the claim for damages which was sustained by the first lower appellate Court. In my opinion, this contention cannot be accepted. The first lower appellate Court has found that for a long series of years the plaintiffs have been realising from the defendants as also from various other fishermen rent at the rates claimed. It is a fair inference to draw that the fishermen including the plaintiffs were content to pay such rents because a margin of profit was left to them. As such if the claim has to be decreed as damages the amount claimed by the plaintiffs would fall short of the compensation which would be properly leviable from the defendants. In this view the decrees passed by the trial Court and affirmed by the first lower appellate Court cannot be said to be unjust. The contention raised by Mr. Roy Chowdhury on this head must also be overruled.
11. There is, however, another point which requires consideration. As the basis of the plain-tiffs' claim as decreed proceeds on the ground of damages, the plaintiffs are entitled to claim damages only for three years prior to these suits. The claim in these, suits were for a period of four years from 1344 to 1347 B. S The plaintiffs' claim can, therefore, be decreed only for three years prior to these suits, that is for the years 1845 B. S., 1346 B. S. and 1347 B. S. The decrees passed in these cases must be modified accordingly.
12. The appeals are accordingly allowed in part. The plaintiffs respondents will have proportionate costs of the trial Court and of the first lower appellate Court. Parties will, how-ever, bear their own costs before this Court and before our learned brother Mookerjee J.
Das Gupta J.