1. The Buriganga is a large river in the Dacca District. One of its tributaries, flowing into it from the north, is the Turag river. About seven miles from the Buriganga, the Turag bifurcates. The western branch, after bifurcation, appears to have been always known as the Turag and fell into the Buriganga in the neighbourhood of village Bhakurta. The eastern branch, to which or to parts of which different names have been given such as Saparia river, Mirpore river and Maspara river, joins the main river not very much further down. The plaintiffs are the owners of the fishery in the branch which went by the name of the Turag, while the defendants owned the Buriganga fishery, which included the channel in dispute.
2. The western branch no longer falls into the Buriganga near Bhakurta. The mouth of that branch silted up many years ago and the Turag took a new course to the east and having joined the eastern branch near village Mirpore now discharges its waters into the Buriganga through the last half mile or so of the eastern branch. It is the fishery in this last stretch of water from Mirpore village to the Buriganga that is in dispute in this case. Both Courts have dismissed the plaintiffs' suit for declaration of title and possession, finding that title has not been proved.
3. It is now argued on appeal, on the authority of the case, Srinath Roy v. Binabandhu Sen 25 Ind. Cas. 467 : 42 C. 489 : 18 C.W.N. 1217 : (1914) M.W.N. 654 : 1 L.W. 733 : 16 M.L.T. 319 : 12 A.L.J. 1193 : 20 C.L.J. 335 : 16 Bom. L.R. 901 (P.C) : 41 I.A. 221 that the plaintiffs, as owners of Turag fishery, were entitled to follow the river where it changed its course and, therefore, they are entitled to at least a share in the fishery, from Mirpore down to the Buriganga.
4. In any attempt to apply the decision referred to to the present case, it must be remembered that in the case before the Privy Council the river under discussion had made for itself a new channel where none existed.
5. The principle enunciated in that case will apply to the Turag fishery up to the point where the Turag branch joins the eastern branch, but there the parallel between the two cases stops.
6. At first sight it would seem a simple solution to say that the owners of the two fisheries should share in the fishery in the united waters. Now, apart from the objection that the result would be that the invaded fishery would for a certain portion of its length lose the character of a several fishery, there are practical difficulties in the way of adopting this apparently simple solution. In the first place there would be the difficulty of estimating the respective shares to be allotted go the two fisheries; the benefit, if any, to the invaded fishery might vary at different seasons of the year. It is not by any means certain that the invaded fishery would be benefited by the addition of the waters of the invading river. There would be an opportunity for more fish to come into the fishery, but there would be a corresponding opportunity for more to go out. The influx of the new river might be positively injurious to the existing fishery, the whole natural advantages of which it might affect, or even destroy. There would be nothing to prevent the owner of the invading river placing a barrier across his river to prevent the exit of fish from his river, while enjoying a share in the fishery in the mingled waters of the two rivers.
7. I am aware of only one case in which a similar question has been decided, the case of Nobin Chunder Roy Chowdhury v. Radha Pearee Debia 6 W.R. 17 In that case it was decided that a person's rights' were not increased because his river flowed through a channel in which another had a fishery. This case was referred to in the case of Srinath Roy v. Dinabandhu Sen 25 Ind. Cas. 467 : 42 C. 489 : 18 C.W.N. 1217 : (1914) M.W.N. 654 : 1 L.W. 733 : 16 M.L.T. 319 : 12 A.L.J. 1193 : 20 C.L.J. 335 : 16 Bom. L.R. 901 (P.C) : 41 I.A. 221, and it was distinguished from other cases cited on the ground that the dispute was between the owners of two fisheries, and not between the owner of a fishery and the owner of the subjacent soil over which the river had been diverted.
8. In my opinion, the solution of the question lies mainly in the answer that can be given to the question whether or not the invading river has lost its identity. In extreme cases the answer would probably not be difficult. In the case where the invading river was insignificant in size in proportion to the invaded river, there would probably be no hesitation in saying that the former river had lost its identity. At the other end of the scale we might have the case of the invading river being so powerful as to destroy the channel of the invaded river and divert it into a new course. In that case the answer would probably be that the invaded river and not the invader had lost its identity. it is in intermediate cases that difficulty would be felt. It is impossible to prescribe any hard and fast rules for the purposes of ascertaining the conditions in which the river may be said to have retained or lost its identity. And I feel the less inclination to attempt to do so as this aspect of the matter was not made the subject of any detailed discussion before us. And there is another equally weighty reason for not making the attempt, namely, that the lower Courts were not asked to consider the plaintiffs' right from this point of view at all. If we were to give effect to the argument we should have to remand the case for findings, for which fresh evidence would have to be taken. That would, in my opinion, be unjustifiable, as the case made by the plaint-tiffs in their plaint was that the whole of the eastern branch of the Tnrag below the bifurcation down to the Buriganga was in-eluded in their fishery.
9. That case having failed and the attempt to establish title by adverse possession having failed, the plaintiffs have been driven to set up a new case and as that new case would depend on fresh evidence it is too late to entertain it now.
10. I think the appeal should be dismissed with costs to be divided half and half between the Government and the Nawab.
D. Chatterjee, J.
11. I agree.