Richard Garth, C.J. (Mitter and Tottenham, JJ., concurring)
1. This is a reference made to a Full Bench in five different suits, which have come up to this Court on second appeal from the decision of the District Judge of Dacca, affirming the decree of the Munsif of Kaligunj.
2. The suits are all brought by the same plaintiffs against different defendants for rent of a julkur in the river Megna; and the plaintiffs' case is that they held the julkur in question as tenants from the proprietors under an ijara lease for the four years, 1287 to 1290, and that the defendants were their under-tenants of the fishery. The julkur is a mehal in the river Megna, a tidal navigable river, which is said to have been settled by the Government with the plaintiffs' lessors for a great many years past at a sudder rent of Bs. 287, and let out by them from time to time in ijara.
3. The first and principal question which is referred to us by the Division Bench is:
(1) Whether exclusive rights of fishery in tidal navigable rivers can be granted to private individuals, or to certain classes of persons, by the Crown
4. The Courts below have decided this question in the affirmative, but it has been contended here by the appellants, who are the defendants in the Court below, that this decision is wrong. They say that the Crown has no power in this country to grant such rights; and they found their contention mainly upon the proposition that the law in British India is the same in that respect as the law of England.
5. They rely also upon an order, which was made by the Bengal Board of Revenue, dated the 6th of November 1868, to the effect that the Government is a mere trustee on behalf of the public in respect of tidal rivers, and that the exclusive right of fishery in such rivers cannot be granted to private individuals.
6. It appears that this order of the Board of Revenue was confirmed by a Resolution of the Government of Bengal, dated the 29th of April 1869, which stated that it was impossible for the Government to make over the fishery in a tidal river to any individual to the exclusion of the public generally; and that the Government is to take care, as the guardian of the public interest, that it is not monopolised by any single individual or party.
7. These documents, although of course entitled to all due respect from this Court, can scarcely be regarded as of any judicial authority. We have enquired how they came to be passed, and have ascertained from a perusal of the papers that the order made by the Board of Revenue was founded upon an opinion given by Mr. Cowie, the then Advocate-General of Bengal, upon a case submitted to him by the Government. Mr. Cowie seems to have assumed, in giving that opinion, that the law in British India, as regards the right of fishery in tidal navigable rivers, was the same as it is in England.
8. We have now, therefore, to consider the question, which is undoubtedly a very important one, whether this opinion is well founded.
9. It may of course be conceded that, by the law of England, the public have the right of fishing in all tidal navigable rivers, and that since the passing of Magna Charta, the Crown has no power to interfere with that right by making exclusive grants to private individuals in derogation of it Malcolmson v. O'Dea 10 H.L. 593 618.
10. Lord Chief Justice Hale considers that this right of the public in England was in the nature of a common of piscary for all the King's subjects to fish in the sea, or in the creeks or arms thereof, as part of the Crown wastes. But whatever was the origin of the right, there is no doubt that it exists. The question which we have to decide is, whether the same law prevails in this country.
11. It seems to have been rather taken for granted by Sir Michael Westropp, in the case of Baban Mayacha v. Nagu Shravucha I.L.R. 2 Bom. 19 that the law of England upon the subject prevails in British India; but it was hardly necessary for the purposes of that case to determine the point; and it is worthy of remark that Mr. Justice Haridas Nanabhai, who was the other Judge of the Division Bench, expressed no opinion upon it.
12. That case related to the respective rights of two sets of fishermen with regard to nets laid two miles from land in the open sea; and neither the plaintiffs nor the defendants claimed any exclusive rights in the fishery.
13. In the case of Prosunno Coomar Sircar v. Ram Coomar Parooey I.L.R. 4 Cal. 53 decided by Markby and Prinsep, JJ. Mr. Justice Markby expressed a doubt whether the Crown in this country had the power of granting rights of, fishery in public navigable rivers; but in that ease also it was not necessary to decide the point, because the Court were of opinion that, even if such rights could exist at all, they should be clearly established; and that the evidence offered by the plaintiffs in that case was not sufficient for the purpose.
14. On the other hand, in the case of Chunder Jaleah v. Ram Churn Mookerjee 15 W.R. 213 it was held that the right of fishing in navigable rivers did not belong to the public; and that the Government was not prohibited by any law from granting to individuals exclusive rights of fishing in such rivers.
15. In that case a ruling of the S udder Court; Gureeb Hossein Chowdhree v. Lamb S.D.A. 1859 p. 1357 was referred to, as having decided that the right of fishing in navigable rivers is prima facie common to every person; and that if any individual claims an exclusive right in such waters, he must show that it has been acquired either by grant or prescription.
16. Regulation XI of 1825 was also referred to; but it is noteworthy that the case in the Sudder Court, as well as the Regulation of 1825, had reference apparently to navigable rivers which were not tidal; and so far as they are of any authority at all for our present purpose, they rather tend to show that exclusive rights of fishing in such rivers can be granted to individuals by the Crown.
17. The latest case upon the subject is one which came up before my brother Mitter and myself in a Small Cause Court Reference No. 8 of 1882 Ramid Ali v. Kristo Mohun Jalia in which the question which we have now to determine was directly raised.
18. We had not the advantage in that case of hearing Counsel on either side, and consequently our judgment was not reported. But as we knew that julhur rights in tidal navigable rivers had for a long series of years been constantly made the subject of settlement by the Government with private persons, and as we were not aware of any law in this country which prevented the grant of such rights, we decided in favour of the grantee.
19. I believe that this present reference is the first occasion upon which the question now before us has been properly argued; and, having had the advantage of hearing Counsel on both sides, I am of opinion that the Crown has power in this country to grant such rights.
20. I find no reason for believing that the English law upon the subject has been introduced here. That law, I conceive, is a branch of the territorial law of England; and it has been held here over and over again that the territorial law of England does not prevail in the Indian mofussil.
21. The view which I take of the question is this:
Whether the actual proprietary right in the soil of British India is vested in the Crown or not (a point upon which there seems some diversity of opinion), I take it to be clear that the Crown has the power of making settlements or grants for purposes of revenue of all unsettled and un-appropriated lands. And I can see no good reason why they should not have the same power of making settlements of julkur rights and of lands covered by water, as of lands not covered by water.
22. In either case the settlement is made for purposes of revenue, and for the benefit of the public; and undoubtedly the practice of settling these julkurs, even in tidal navigable rivers, has existed in several parts of Bengal for a great many years. I have ascertained this fact by a reference to certain papers for the perusal of which I am indebted to the courtesy of the Board of Revenue.
23. And it is also undoubtedly a fact that the grantees of these julkur rights have, for a long series of years, enjoyed the profits of them to the exclusion of the general public, and have been in the habit of sub-letting them by ijara and other leases.
24. It certainly seems to have been taken for granted in some of the authorities to which I have referred that, in the absence of such exclusive grants by the Crown, the public have always been allowed to fish in tidal navigable rivers without let or hindrance; and it is probable that this may be the case.
25. I have no doubt, also, that the policy which seems to have been pursued by the Government of Bengal since the year 1868 of making no further settlements of julkurs with private persons is a wise and beneficent policy.
26. But, on the other hand, it would seem very unjust to deprive zamindars of any rights which they may have previously acquired under such settlements.
27. This first question, therefore, as it seems to me, should be answered in favour of the plaintiffs.
28. The second question referred to us is-
(2) Whether, in the absence of proof of title by prescription, the rights to such a fishery can be established without proof of a direct grant from the Government
29. As to this question I think it sufficient to say that, in the generality of cases, and certainly in the particular cases with which we are now dealing, the right to the fishery cannot be established without proof of a grant from the Government.
30. The third question is-
(3) Whether, when a julkur is granted, which in the boundaries assigned to it in the grant includes waters which are not, and waters which are, part of an arm of the sea or of a tidal navigable river, such grant should not be held to include the former only, unless it be expressly stated in the grant that the latter also are included?
As to this question it seems to me very difficult to attempt to lay down any such fixed rule as this question suggests.
The grant of a julkur, I consider, should be construed like any other grant. There are no special rules of construction, so far as I know, which are applicable to grants of julkurs, as distinguished from other grants; and in ascertaining what the boundaries of a julkur are, or what rights of fishery are contained within those boundaries, whether the subject of the grant be in a tidal navigable river or not, I think we must be guided by the same rules of evidence, which should guide us in ascertaining the nature and extent of any other grant.
Many of these grants of julkurs in tidal navigable rivers are very ancient; and, although at the time when the settlements were made, it is probable, that in each case a potta was granted by the Government, I believe there are few of such pottas in existence at the present time; and the usual mode of proving such grants in the generality of cases is by secondary evidence of the grant itself, and such proof as can be obtained of the user and extent of the rights which were conveyed by it.
(4) I think that any payment of rent by the defendants to former ijaradars of the fishery would certainly not estop them from disputing the plaintiffs' right. But former payments of rent either to the plaintiffs themselves, or to their predecessors in title, by persons in the defendants' position for the use of the julkur right which the plaintiffs claim, would certainly amount in my opinion to strong evidence against those persons of the existence of that right, and of their acquiescence in the plaintiffs' title.
31. It is now necessary, as the cases with which we are dealing are second appeals, that we should decide them upon this reference; and it seems to me, that we have no good reason for impugning the judgment of the Court below.
32. The plaintiffs claim to hold an 8-anna share of the julkur in question under an ijara potta for four years, from 1287 to 1290. This potta has been produced and proved.
33. Then the title of the zamindars to the julkur in question is proved to the satisfaction of the lower Courts by certain proceedings of the Collectors of Dacca and Tipperah, which were admitted without objection in the first Court, and which have satisfied both Courts that the julkur was settled by Government with the zamindars, and that it includes the waters, in respect of which the plaintiffs claim rent from the defendants. And, lastly, it is found that the defendants have paid rent to the plaintiffs' predecessors in title for the very right in respect of which the present claim is made.
34. It seems to me that the proceedings in the Collectorate were properly admitted as evidence in the Courts below. I think that any proceedings, showing the existence and the nature of the original grant of the julkur, which would be evidence as between the Crown and the zamindars, would also be evidence in these suits; because one main question between the parties to these suits is, what rights the Crown granted to the zamindars. And having regard also to the fact that the question with which we are now dealing is one which affects the right of the public, I consider that evidence of reputation is also admissible, and that the proceedings before the Collector are evidence of reputation.
35. Those proceedings seem to me to be evidence both under Section 13 and Section 42 of the Evidence Act.
36. The real ground, apparently, upon which these suits were defended in the Courts below, was the supposed disability of the Crown to make settlements of julkur s in tidal and navigable waters; and the order of the Board of Revenue of 1868, coupled with the Resolution of the Bengal Government, has been the means of inducing the defendants to contest the plaintiff's' title.
37. As the defendants have probably been misled by these documents, I think that, although they are wrong in their contention, the appeals should be dismissed without costs.
Prinsep and Pigot, JJ.
38. This reference relates to two sets of cases-one referred by Mr. Justice Pigot and myself, the other Sp. App. Nos. 54, 245 and 248 of 1883 by Mr. Justice Pigot and Mr. Justice Beverley. The points submitted for decision are the same in all these cases, although the facts giving rise to them and the evidence are somewhat different.
39. We are all, I believe, agreed in the answers to be given to many of the questions put to us.
40. First, that exclusive rights of fishery in tidal navigable rivers can be granted to private individuals by the Crown. In fact, it is clear that this power has occasionally been exercised, and in my official experience I know that in 1859 this power was extensively exercised by the Government of Bengal, but the grants given were generally withdrawn in consequence of opposition made by various zamindars under the permanent settlement.
41. Second, that rights to such a fishery should be established by proof of a direct grant from Government or by prescription.
42. Third, that payments by the defendants to former claimants of the julkur, or to the plaintiffs for leave to fish in tidal navigable waters, do not preclude the defendants from disputing the plaintiffs' rights therein, but are merely evidence of the existence of such rights to be taken into consideration in determining those rights.
43. As regards the other point referred, I am of opinion that a grant of a fishery in tidal navigable waters should be express in its terms, and that ordinarily the mere grant of a julkur would not be sufficient. From the character of such a grant, which is exceptional, I think that the term julkur would not ordinarily include it; for, as I understand that term in its usual acceptation, it is used to apply to inland waters, such as jheels or bheels or small streams: not to arms of the sea, such as are in issue in the suits now before us. Unless, therefore, the boundaries clearly indicate the contrary, I should not be inclined, merely from the use of the term julkur, to hold that it included the rights of fishery in tidal navigable waters.
44. I am not disposed at this stage of the cases to consider the adequacy of evidence on the record to prove these rights. Probably, if objection had been raised at the proper time, the evidence, on which the cases have been decided in favour of the plaintiffs, would not have been admitted, but then the plaintiffs would have had an opportunity of adducing other and better evidence, such as the proceedings at the time of the permanent settlement to which some reference is made in one of the papers on the record. But no such objection was taken, and the cases have gone to trial on that evidence. If it were now held that the evidence was not admissible, and that the plaintiffs had consequently failed to prove the existence of any grant, I should consider that the cases should be re-tried in order that further evidence might be received.
45. In the case of Prosunno Coomar Sircar v. Ram Coomar Parooey I.L.R. 4 Cal. 53 the judgment of the lower Court was affirmed, as Mr. Justice Markby and I agreed with it that the plaintiff has failed on somewhat similar evidence to prove the rights of fishery claimed. In the present cases we are asked, under the special circumstances indicated by me, to hold that the evidence adduced is insufficient. I am not prepared to say that it is no evidence at all, although, if I were sitting as a Judge of fact, I should have much hesitation in accepting it as conclusive.
46. For these reasons I am of opinion that all these appeals should be dismissed.