1. This appeal is against the judgment and decree of the District Judge of Noakhali reversing those of the Munsif of Lakhmipore. The plaintiffs are the appellants and the appeal arises out of a suit for confirmation of possession after declaration of the plaintiff's title to the tank in suit.
2. The cause of action arose in this way : There was a record-of-rights of the mouzah in which the tank is situated; under Chap. X of the Bengal Tenancy Act. The tank was recorded as within the tenancy of the plaintiffs, but it was also recorded that the defendants would be entitled to rear fishes and use the water of the tank. With regard to the use of the water of the tank there is no question and the plaintiffs had not disputed that right. But the plaintiffs say that the defendants have no right to rear fishes in the tank and the record-of-rights is erroneous to that extent.
3. The suit has been brought for a declara tory decree as provided in the proviso to Section 111-A of the Bengal Tenancy Act. The defendant No. 1 contested the suit, and he pleaded that he and his predecessors before him were the proprietors of 6 annas share of the tank and another person Malika Banu was the proprietor of the remaining 10 annas shave and he further pleaded that he and his ancestors have been exercising possession over the 6 annas share of the tank for the last 50 years by using its water and rearing and catching fishes. The learned Judge on appeal has dismissed the suit entirely, and the first ground on which he holds against the plaintiffs is that they have no cause of action. He thinks that as the record-of-rights shows the plaintiffs' title and possession, the mere fact that the record shows the defendants as having got the right complained of does not give them a right to bring the present suit. We are unable to agree with him with regard to this proposition. The record, if it is allowed to stand, restricts the absolute ownership of the plaintiffs and disentitles them from excluding the defendants from exercising some acts of possession. They have therefore the right to complain against the entry in the record-of-rights and this gives them a good cause of action.
4. The next ground on which the learned Judge has decided the case is that the entry in the record-of-rights had not been rebutted by the plaintiffs It is first urged on behalf of the plaintiffs that the entry in the record-of-rights not being an entry with regard to agricultural land, nor of any matter between landlord and tenant the presumption under Section 103-B of the Bengal Tenancy Act does not apply. It has, however, beer hold that although strictly speaking the presumption under Section 103-B is not applicable to non-agricultural land to the extent to which it is applicable with regard to agricultural lands, still such entry raises some presumption with regard to the fact recorded in it; see Raja Sash'i Kanta Acharjya Bahadur v. Sandhya Moni Dassya A.I.R. 1921 Cal. 236. It is next urged on behalf of the appellants that the right that is recorded is too vague to give the defendants a right in law in the nature of an easement, and secondly the defendants themselves did not claim the right as recorded, but claimed ownership to 6 annas share of the tank and pleaded that the exercised the right of ownership in that share of the tank; and the learned Judge having found that the plaintiffs were the sole owners of the tank and the defendants had no share in it ought to have made a decree in favour of the plaintiffs. In our opinion this contention should prevail The right of one person to rear fishes in another's tank seems to be quite a novel right which a Court of law cannot recognize. The learned Yakil for the respondents was unable to show us any authority for the proposition that such a right should be recognized. We are therefore of opinion that the plaintiffs are entitled to the declaration they have sought for that they are owners of the tank, and also for confirmation of possession, and they are also entitled to have the other declaration that the defendants have no right to rear or catch any fishes in the tank.
5. We, therefore, set aside the judgment and decree of the lower Appellate Court and restore those of the Munsif with costs in all Courts.