B.B. Ghose, J.
1. This appeal arises out of a suit for declaration of right to and recovery of possession of fishery-right in a piece of water, described as a jala or kole, lying within the estate of defendants 1 to 9 called Chandahar, by virtue of the plaintiffs' right to two jalkars named Bartail and Chandraghopa Nayaganga. Plaintiffs allege that Bartail appertains to touzi No. 9316 and Chandraghopa Nayaganga to touzi No. 1180 of the Dacca Collectorate, both permanently settled estates. Plaintiffs, including the original defendants 42 and 43, who were transferred to the category of plaintiffs, claim 10-annas share of jalkar Bartail and 12-annas share in jalkar Chandraghopa Nayaganga in accordance with their shares in the two estates. Their case is that the two jalkars were different names of portions of a big tidal navigable river now named Dhaleswari. This river flowed to the east of a certain number of mauzas, Chamta, Chandhar and others. In 1897 the river broke through the lands of the mauzas lying on its west and flowed over those lands. It continued to do so till about 1910. In 1911 the river again turned towards the east and returned more or less into its old bed, but it had a channel over the jala in dispute through which it continued to flow as it did through the channel on the east. The plaintiffs allege that the jala in claim forms a part of the river system and so they are entitled to the fishery right in it as they have in the main channel. The plaintiffs enjoyed their fishery right till about the end of 1913 when they were dispossessed by the defendants of a portion of the jala. They annexed a plan to their plaint which showed that the jala in suit is connected with the river at both ends, flowing out of it and into it. The Court below made a decree in favour of the plaintiffs. The principal defendants who are the owners of estate Chandhar appealed to this Court. The other defendants were lessees of the fishery rights under the appellants. The appeal was heard previously by a Division Bench of this Court. The learned Judges remanded the case to the Court below by an order dated the 15th August 1924 for findings on certain points stated, without deciding any of the questions raised before them, retaining the appeal on the file of this Court. The parties led evidence before the lower Court after remand which was recorded by a different Subordinate Judge, while the findings on the questions required by this Court were recorded by a third Subordinate Judge. The appeal has now come up before us for hearing on all the questions raised.
2. The disputed jalkar is part of a sheet of water which is marked below in the case map leaving out portions to the north and to the south of it. The defendants do not deny nor are they interested in denying that the plaintiffs had a right to jalkars Baratail and Chandraghope Nayagauga, but what they say is that those jalkars were not in the bed of the large navigable river Dhaleswari which is not a new name given to the river as alleged. They state that the plaintiffs' jalkars were in two small rivers within their estates which are depicted in the survey map of 1858-59 (Ex. 36a) as existing in the land between Booriganga and Dhaleswari rivers. It was in 1861 during resumption proceeding that a Mr. Wise, the predecessor-in-interest of the plaintiffs, set up the case that those two jalkars were in the bed of the river newly called Dhaleswari. This claim was negatived by the revenue authorities, but Wise succeeded in two civil suits, Nos. 35 and 44 of 1863, in establishing his right to the fishery in the bed of the Dhaleswari river as against the Government on the ground that the right of the Government to the fishery was barred by limitation. The defendants contend that the plaintiff's may have acquired a right to fish in a portion of the bed of the river by prescription against Government, but they are not clothed with the rights of a grantee of the fishery right in a river from the Government with the result that they should be held entitled to a fishery right on another's land on the ground that the river flowed on that land by changing its course.
3. The second point is that the disputed jala is entirely closed on the north end and it is not connected with the river throughout the year on its south-east end as shown in the case map, and therefore the plaintiffs cannot claim any fishery right in it under any circumstance.
4. It is next urged that, even assuming that there is some connexion of the jala with the river, it, not being a flowing stream, is not a part of the river system and the plaintiffs cannot have a right of fishery in it.
5. It would be convenient to record my opinion first on one matter remitted by this Court on the previous occasion for a finding and that is with regard to the upstream and downstream limits of the right of fishery of the plaintiffs in the river Dhaleswari. Whether that right was by grant limited to territorial waters of the river, or of a several exclusive fishery, or whether the right was acquired by prescription prior to the change in the course of the river, the evidence with regard to those limits is the same. The Subordinate Judge has after remand found that the northern limit of plaintiffs' right in the bed of the river is much to the north of the horizontal line drawn from the north end of the jala or kole in question, and the southern limit is also far to the south of the south-eastern end of the jala. It is argued by the appellants that these limits could not be satisfactorily found unless a commission was taken and the places with reference to which those limits have been found were pointed out in the locality and depicted in the map prepared by the commissioner. That course would no doubt have been more satisfactory. But the Subordinate Judge has gone elaborately into the evidence and has come to his conclusion. I do not find any reason to differ from his opinion.
6. The most important question of fact in this case is whether the disputed jala or kole is connected with the main stream of the river Dhaleswari throughout the year. Admittedly plaintiffs' can not succeed in this case if they fail to establish this fact. (The judgment then discussed the evidence and continued as follows as regards the evidence of the plaintiffs.) Their evidence does not satisfy me that there is connexion at all seasons of year. On the contrary the evidence is ample that at certain seasons of the year there is no connexion. The fact that the plaintiffs have advanced no claim to the jala to the north or to the south of the portion of the disputed kole also supports that conclusion. This finding disposes of the case, but as the other questions have been elaborately argued I think I should deal with them also.
7. I shall then take up the question whether assuming there is some connexion throughout the year between the jala and the river the plaintiffs are in the circumstances of this case entitled to the jalkar claimed on the ground that it is a part of the river system. Both parties have cited and commented at length on the case of Sreenath Roy v. Dinabandhu 41 I.A. 221. That was a case in which the right to follow the river was in question, but ail the cases cited before us were referred to by their Lordships of the Privy Council in their judgment. Each party claims that the principles laid down in that case favour his contentions. Their Lordships say:
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 upstream and the downstream limits of his grant, whether the Government own the soil subjacent to such waters as being the long established bed, or whether the soil is still in a riparian proprietor as being the site of the river's recent encroachment : 41 I.A. at p. 235.
8. Again, in dealing with the question of injustice to the landowner their lordships observe (at p. 246):
There is soma begging of the question here; the Waters are not his waters, nor is the change eonfined to the flooding of his fields. It is the river that has made his land its own : the waters are the tidal navigable waters of the great stream. In physical fact the landowner enjoys his land by the precarious grace of the river, whose identity is so persistent, and whose character is so predominating, as almost to amount to personality; and is it fundamentally unjust that in law too he should lose what he has lost in fact, and be precluded from taking in substitution for his lost land an incorporeal right which has been granted not to him but to another? The sovereign power lawfully invests its grantee with jalkar rights in part of the river; is it unjust that when that river shifts its course, changing in locality but not in function, the owner of those rights should still enjoy them in that self-same river, instead of being despoiled of them by the course of nature, which he could neither foresee nor control?
9. In my judgment none of the circumstances mentioned above applies to this jala or kole in question. The river which made the defendants' land its own has given it up. The waters cannot be said to be the waters of the great stream. The land lost has been thrown up and the defendants do not claim an incorporeal right. The owners of the jalkar right in the river, of which they claim to be the grantees from the sovereign power, still enjoy the self-same right in the bed of the river, but they want to have some thing more than what was granted to them because the river for some time gave up its bed and flowed over the defendants' land, but having gone back to its old bed bas left a sheet of water on defendants' land through which it does not now flow, but touches it at some place. On what principle can the plaintiffs get an extension of their right and the defendants be deprived of the right to fish in their own water, because it happens to be connected with the river? The claim is sought to be supported, as it were, on the ground that unto every one that hath a grant of a several fishery shall be given, and he shall have abundance; but from him who hath not such a grant shall be taken away even that which he hath. This seems to me to be very questionable justice. If the plaintiffs' contention be correct then a sand barrier of a few inches saves the right of the defendants and its absence takes it away, I am of opinion that the jala is not a part of the river system in its present condition.
10. But it is contended on the part of the plaintiffs that their case is supported by authority and the cases of Bhaba Prasad v. Jagadindra Nath Rai  33 Cal. 15 and Krishnendro v. Surno Moyee  21 W.R. 27 are cited. The first case cited is in my opinion quite different in its facts and does not apply to the present circumstances. There plaintiffs had a jalkar right in the river. Portions of the bed dried up leaving certain dobas. The proprietor of the zamindari dispossessed the plaintiffs of their right of fishery in those dobas. It was held that the grantees of the fishery would not lose their right of fishing in the dobas so long as they are connected with the river throughout the year. It was not a question of extension of the right under the original grant, but of retaining the right of the grantee of the right of fishery in the original bed of the river so long as a piece of water in its bed is connected with the main stream. The case of Krisknendro v. Sumo Moyee  21 W.R. 27, however, is similar to the present case on the facts. There the Court reluctantly followed the rule which it deemed to have been settled by two cases which it considered it was bound to follow. If, however, the two cases referred to are examined, it will be found that they are not cases in which the river broke through the land of another person and then returned to its old bed abandoning the new channel. The case of Kalee Soondur Roy v. Dwarkanath  18 W.R. 460, which was thought to be precisely similar was, it seems to me, a case where it was held that the right of fishery in the dried up portion of the bed of a river is not lost if the water in it is connected with the main stream. The defendants who acquired a right to the land by accretion would hold it subject to the plaintiffs' prior right of fishery. It was not a case, as I have already stated, of plaintiffs having his own original right of fishery and getting also the right in the waters on defendants' land. The other case of Grey v. Anund Mohan  W.R. 108 was also one of right of fishery in the bed of the river included in the original grant which bed was left, but there were some koles. There is therefore no authority properly so called which lays down that the plaintiffs would not only enjoy the right of fishery in the bed of the tidal navigable river as granted, but would also retain the right of fishery on the land of another over which the river flowed for a short interval but ceased to do so, if there is a sheet of water on defendants' land which is connected with the river. In my opinion the plaintiffs cannot maintain such a right.
11. The last question is whether there was a grant of several fishery in the bed of the river Dhaleswari by the Government to the plaintiffs. The earliest document of the plaintiffs is Ex. L, dated 1791. By it fishery of Chandraghope Nayaganga was leased out by the plaintiffs' predecessor as appertaining to certain mauzas within the grantor's purchased taluk. Similarly by Ex. L1 dated 1814, fishery in river Bartail appertaining to Joarh Bartail within the grantor's Kharija taluk was let out. In the quinquennial papers of 1796-97 (Exs. 6 and 7) submitted by the zamindar, the jalkars were included in the return of two taluks Ram Kishore Basu. The predecessor of the plaintiffs, Mr. Wise, was exercising right of fishery in the river Dhaleswari, and in 1860-61 resumption proceedings were taken under Regulation 11, 1819 with regard to the fishery by the revenue authorities. By an order of the Collector, dated 23rd July 1861, the jalkars were resumed on the ground that no grant was made of fishery in the river Dhaleswari. This order was confirmed by the Commissioner. Mr. Wise then brought two suits in the civil Court for confirmation of possession and title to the two jalkars, Bartail and Chandraghope Nyaganga, both described as recently called Daleswari. Those were suits No, 35 and 44 of 1863. In the judgment of the Principal Sadar Amin two issues were raised [Ex. 23(a)] : (1) whether the order of Government of assessment of revenue on the said jalkar is barred by limitation or not; and (2) whether the plaintiff has got zamindari interest in the disputed jalkar, or whether the Government has got its ordinary right. The Judge held that although the Government was entitled to jalkar in flowing river it did not care to take possession of its own properties and the right of the Government to assess revenue was barred. The judgment in the other case was also in the same terms Ex. 23. : It is argued for the appellants that no grant of several fishery in the river was claimed then nor was it found. What was claimed was territorial fishery as appertaining to the zamindaries. In any case the right of the plaintiffs having been confirmed on the ground of limitation the plaintiffs can only claim the right to the fishery in the Waters that flowed in the bed at that time and cannot claim to follow the river on another's land if the river abandons its old bed. I do not think it is necessary for us to decide this question in this case as it involves the right of the Government with which we are not concerned here. One thing may, however, be noted that Mr. Wise does not seem to have claimed any right to the khals flowing out of the river towards the west through Chandhar and other mauzas in 1863, which might have established his right to fishery in the river system of Dhaleswari by a grant of a several fishery. Those khals are depicted in the survey map Ex. 36.
12. In my opinion the claim of the plaintiffs has not been established. The appeal must be allowed and the suit dismissed with all costs to the defendants' appellants in both Courts, including the cost of the previous hearing in this Court. The other defendants will bear their own costs. It should be noted that Original defendant 9 died while the suit was pending in the lower Court and his mother Sorojini was substituted in his place. But by a mistake her name was not entered in the decree.
13. (After stating facts and discussing evidence as to whether the kole remained connected with the river throughout the year, the judgment proceeded). The balance of evidence is in favour of the defendants and the conclusion is that the kole was not connected with the river at all seasons of the year. Even if there was a connexion I do not think that the plaintiffs can succeed considering the situation and position of the kole. We have constantly been referred to the judgment of their Lordships of the Judicial Committee in the case of Sreenath Roy v. Dinabandhu Sen 41 I.A. 221. Their Lordships reviewed and discussed the whole series of decisions in Bengal on the subject of fishery, rights in navigable rivers from 1807 to 1905. The right 'to follow the river' is now settled. It was held that it must 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 upstream and downstream limits of his grant, whether the Government owns the soil subjacent to such waters as being the long-established bed, or whether the soil is still in a riparian proprietor as being the site of the river's recent encroachment. We have a converse case here and the question we have to decide is how far a grantee can claim his right in what the river has abandoned. Some of the cases discussed by their Lordships relate to abandoned beds or channels and the contention is that the principle has been settled that the grantee of a general right of fishery in a navigable river is entitled to fish not only in the main channel of the river, but also in such arms, inlets and lakes', so long as any communication between them and the main channels remains open during all seasons of the year. This rule seems to have been affirmed in certain cases.
14. We have to examine the position. It was pressed before their Lordships that it is unjust that a landowner should not only lose the use of his land when the river overflows it, but also the right to fish over his own acres and in his own waters, in order that another may unmeritoriously fish in his place. The answer of their Lordships is:
There is some begging of the question here; the waters are not his waters, nor is the change confined to the flooding of his fields. It is the river that has made the land its own; the waters are the tidal navigable waters of the grant stream. In physical fact the land owner enjoys his land by the precarious grace of the river, whose identity is so persistent, and whose character is so predominating, as almost to amount to personality, and is it fundamentally unjust that in law too he should lose what he has lost in fact, and be precluded from taking in substitution for his lost land an incorporeal right which has been granted not to him but to another? The sovereign power lawfully invests its grantee with jalkar rights in part of the river; is it unjust that when the river shifts its course, changing in locality but not in function the owner of these rights should still enjoy them in that self same river, instead of being despoiled of them by the course of nature, which he could neither foresee nor control?
15. Now when the grantee desires not only to follow the river, but also keep the abandoned channel, on what principle of justice and equity can his claim be sustained? I can find no answer to the claim of the despoiled proprietor that now that the river has left his property he should have it back. The grantee could only claim if the abandoned channel is still a part of the river or forms part of the river system. Can this be said for the disputed kole? I think not. It has lost its identity with the Dhaleswari. The personality of the Dhaleswari has deserted it. When the suit was brought it was a mere back water within the defendants' mauza with dry land on all sides except a channel to the south connecting it with the Dhaleswari. If the grantee can go wherever the river flows it follows that he cannot remain in a piece of water where the river has ceased to flow.
16. I venture to think that the rule that the grantee can retain a bed when it has connexion with the main channel at all seasons of the year has been stated too broadly. The reasoning is apparently that the abandoned channel is still a part of the river or of the river system. With great respect I would say that in these cases the rule was laid down by the Court on the findings of fact arrived at in each case There are three cases to which we have been specially referred. There is the case of Jogendra Narayan Roy v. Crawford  32 Cal. 1141. There the piece of water in dispute was connected with the river only in the rains and their Lordships proceeded on the finding of fact that the piece of water was still an arm of the river. The case of Krishnendro v. Surno Moyee  21 W.R. 27 was quoted. As their Lordships of the Judicial Committee pointed out the Court somewhat reluctantly followed the rule which it deemed to be settled that the grantee
can exercise his right in the open channels and also in closing or closed channels abandoned by the river, up to the time when the channel became finally closed, i.e. so long as fish can pass to and fro.
17. Ainslie, J., who laid this down refers to a case, Kalee Soondur Roy v. Dwarkanath  18 W.R. 460, as his authority. It would appear however from an examination of the latter case that it refers to a different set of circumstances, where the defendants set up their right to accretion. It was urged that the present case is very similar to the case of Bhaba Prasad v. Jagadindra Nath Rai  33 Cal. 15. There the question was in respect of three dobas left by the receding Brahmaputra. It was held that two dobas had lost connexion with the river and could not be considered any longer as part of the Brahmaputra. Their Lordships referred to the case of Grey v. Anund Mohun Moitro  W.R. 108, where the argument was put forward that the grantee can have no right where the Government right itself was gone. The Court gave a decree for the third doba on the idea that it was part of the river Brahmaputra because there was connexion and the right of the Crown to grant a fishery subsisted. The situation of the kole in dispute here is such that I cannot hold that it is part of the river Dhaleswari, and I do not think that the Crown could successfully maintain that the kole is still a part of a navigable river.
18. Mr. Chakravarti for the plaintiff-respondents referred to the fact that the fish can pass to and fro from the river when there is connexion. In the case of Krishnendro v. Surno Moyee  21 W.R. 27 the Court gave a decree. 'So long as fish can pass to and fro.'
19. Now there are innumerable creeks and channels, some blind, some current which connect with the mighty navigable rivers of Bengal. They are territorial waters and the Crown does not claim any rights therein. The Government rights exist only in navigable rivers. I am of opinion that the plaintiffs cannot be allowed to claim fishery rights in the kole which lies within the defendants' mauza and which lies in a bed which the navigable river has abandoned.
20. It was said that the defendants own only a few chaks in their estate and that the plaintiffs have the largest share in the mauza. This aspect of the case was not raised in the suit and it is not possible to examine it. If the plaintiffs have a right to the mauza their right to the kole as appertaining to the mauza is jeopardized by this decision.
21. The plaintiffs' title to the jalkars in the Dhaleswari as appertaining to their taluks Nos. 9316 and 1180 of the Dacca Collectorate has been the subject of much adverse comment. It is contended that the plaintiffs not having alleged any grant in the plaint the suit should fail, that the grant was negatived by the resumption proceedings and that Mr. 'Wise having brought suits to establish his rights to the jalkar as part of his zamindari and having succeeded, the plaintiffs cannot now fall back on a grant. It is argued that the effect of the resumption proceedings and the suits decreed is not to create a several fishery in favour of Mr. Wise and the plaintiffs therefore must be confined to the Dhaleswari within their zamindari. I can appreciate the argument of the defendants that the plaintiffs' title being appurtenant to their zamindari it would be hard if they were allowed to travel into theirs. In para. 5 of the plaint, plaintiffs claimed, their jalkar, however, even if the river shifts its course by virtue of this title which their predecessor achieved in 1863. The river flowed at the time through their zamindari. Their case was that they had a right to the jalkar of the river and the Government had no right to assess revenue for the jalkar. It is not very clear to me that because at that time they did not assert a grant they should not be allowed to raise the question of a grant from considerations which apply to grants over a century old. The conception of a lost grant from long user was not known in 1863. Suppose Mr. Wise had alleged a grant at that time lug position would not have been difficult before the Court even though the revenue authorities resumed the jalkar on the ground that there had been no grant. It seems to me (I speak with diffidence), therefore, that the plaintiffs should not be precluded from pursuing their rights as if it was a grant. Apparently they have done so since 1863. The defendants after all are remotely concerned with the question. If the Dhaleswari leaves the plaintiffs' zamindari the Crown may question the plaintiffs' right and until the Crown succeeds the defendants are not in a position to question the plaintiffs' right.
22. On these grounds I agree with the conclusions arrived at by my learned brother. The result is that the appeal should be allowed and the suit dismissed with eo3ts in all the Courts.