1. Plaintiffs 1 to 25 are proprietors of a beel of which they have in 1324 granted settlement to plaintiff 26 for catching fish near the banks by setting up dalkatas or kheos (twigs and branches of trees put up as a contrivance for intercepting the fish). They instituted this suit in 1919 for restraining the defendants from catching fish in the said beel on certain declarations, the object of which was to negative a right of fishing which the defendants set up, and they also claimed damages from the defendants for having caught fish from the beel under colour of such a right. The Subordinate Judge having dismissed the suit, the plaintiffs have preferred this appeal. The right which the defendants claimed is described in the written statement of the answering defendants in these words:
Para. 16.-The answering defendants are dealers in fish and fishing is their only means of livelihood. Thinking that it would be convenient to earn their livelihood by fishing, the predecessors of the answering defendants came to reside in the vicinity of the heel in dispute and erected houses there, and the answering defendants and numerous other men of the Kaivarta class and their co-villagers and residents of the adjoining villages, who are also fishermen, have been earning their livelihood by catching fish by means of various kinds of floating nets in the said jalashay from generation to generation and from time immemorial, openly and as of right without interruption and peacefully. Thus the jalkar of the said beel is the absolute right of the answering defendants and their neighbours. To whomsoever the bed of the said beel may belong the answering defendants and their neighbours have been enjoying the jalkar right in the said beel from generation to generation and from time immemorial. No one had or has any right to object thereto.
Para. 17.-The answering defendants have been catching fish in their respective kheos by erecting kheos by dalkata in the places near the banks of the said beel from generation to generation and from time immemorial. And for the convenience of catching fish in their respective kheos, they have been erecting khalas on the banks of the beel and have been using and possessing their respective kheos and khalas. And in respect thereof, every one has been paying a jama of 8 annas year by year to the owners of the bed of the said beel from generation to generation according to long-standing usage from time immemorial. The maliks have no right to claim any money in excess of the said amount of 8 annas. The said jama is fixed for ever and is unchangeable. The answering defendants and their predecessors have been enjoying the right to erect kheos and khalas as above from time immemorial peacefully, without interruption, as of right and openly. The maliks have no right to jeopardise that right. The places of those kheos and khalas are fixed and demarcated for ever.
2. It should be stated at the outset that the two paragraphs of the written statement just quoted should be read together, and that though in para. 16 it was stated that the jalkar of the beel belonged to the defendant in absolute right, what was really claimed was the right to fish at the places and in the manner specified in para. 17. The Subordinate Judge found as a fact that the defendants and their forefathers have been fishing in the beel from time immemorial by establishing kheos in its sides on payment of 8 annas per head of the persons fishing and that each defendant and his father, grandfather and so on have been in possession of each particular kheo on such payment. He held that it was a customary right which the defendants were thus enjoying. He also held that from such long user a lost grant or some legal origin might be presumed, and that inasmuch as right of fishery is immovable property the defendants having paid rents all along and regularly were people with the status of settled raiyats and the plaintiffs were incompetent to take khas possession of the kheos without determining the rights of the defendants in a legal manner. He held further that the defendants having had possession of the different kheos separately and continuously as an interest in land i.e., of a right of fishery, for a period of long over 12 years before the beel was attached in 1902 as a consequence of proceedings under Section 145 between the plaintiffs and the proprietors of a neighbouring estate, the suit was barred by limitation, estoppel and acquiescence.
3. A very unsatisfactory feature of this case is that neither in the pleadings nor in the evidence has any attempt been made to describe, elucidate or establish the different elements of the right that was claimed, and nowhere has it been clearly, definitely or expressly said what the origin of the right claimed was. The witnesses examined in support of the claim have spoken to one or other of the characteristics of the right and it is only by taking into consideration the cumulative effect of their testimony that one has got to form an idea of the nature of the claim. The general trend of the evidence, it cannot be disputed, establishes that the defendants and their ancestors have been fishing in the respective kheos in the manner indicated above, without any interruption or opposition and on payment of 8 annas per head for each person fishing. To resist the plaintiffs' claim for injunction however a right on the part of the defendants to fish in the aforesaid manner will have to be found.
4. From the judgment of the Court below it would appear that the Subordinate Judge was of opinion that the defendants had succeeded in proving a custom or customary right entitling them to fish in the manner described. The elements of this right according to the witnesses examined on behalf of the defendants, are the following; that,, the inhabitants of certain villages, to wit, Shalla, Kadirpur, Nagar, Nayanagar, Birat, Udhabpur and Ajmiri, which are villages lying by the side of the beel, have this right; that 200 or 250 Kaivartas live in these villages for generations; that the right is confined to the Kaivartas of those villages; that there are 180 to 200 kheos, in all, which are capable of being mortgaged or sold or transferred in other ways when necessary and are divided amongst the heirs of a holder who is dead; that no permission is to be taken by them for fishing but fishing is done as a matter of right; that all the kaivartas of all the said villages do not exercise the right, that there is no certainty of the number of men who actually fish in the beel in any year but their number varies from year to year; that the Kaivartas who fish in this way engage other men of their villages as well as outsiders, paying them salaries for the season, and there is no limit to the number of men who can be so employed; that payment of 8 annas has to be made not as per each kheo but per head of the men fishing; and that the said amount has not to be paid nor has any permission to be taken before fishing, but the payment is made after the fishing is over. While these are some of the salient features of the right that is claimed there is evidence showing that one of these villages is of very recent and another of a comparatively modern origin, that not all the Kaivartas of the villages but only some of them enjoy or exercise the alleged right, and that persons who have come to live in one or other of these villages quite recently have also been fishing under the supposed right. There is therefore considerable uncertainty as regards the particular persons or families in which the right claimed lies. Then there is evidence to the effect that when a transfer is made of a kheo the transferee also goes on fishing as if he was a member of the body to which the so-called right belonged. These features sufficiently indicate that the case as to the customary right being confined to the Kaivarta inhabitants of the villages specified and descendible amongst their heirs is not a true one. Indefiniteness as to the persons in whom the alleged right lies is a thing which militates against its being supported on the ground of custom. A claim to profits a prendre over the soil of another such as a right to fish without stint and for commercial purposes, which might lead to the destruction of the subject-matter, is a claim of right unknown to law and a custom which may be alleged to support it is bad and unreasonable: see Caulson and Forbes's Law of Waters, 4th Edn., p. 398, and the cases cited there. In the case of Subramania Chetty v. Vijia Raghunatha, Pillai AIR 1918 Mad 169 Krishnan, J., expressed the view that the aforesaid principle was not applicable to the case of a right in gross vested in the inhabitants of a particular village, but in that case the learned Judge found that the right that was claimed was not unlimited in its character. So far as the present case is concerned it is true that the right is claimed on the part of the Kaivarta inhabitants of the seven villages only and it is only the right to take fish at some specified spots that is so claimed; but the fact that the fish is to be taken for commercial purposes and the fact that any of these persons has the right to bring in as many others as he chooses are factors which stamp the custom with an unreasonableness that stands in the way of its being pleaded as having created a right. It has also been argued on behalf of the appellants that the fact that a fee has to be paid is antagonistic to the idea of a customary right which must be a right enjoyable without leave and license. It is true that if every act of fishing was by lecense, there is no enjoyment as of right so as to give rise to a custom, but if the custom is otherwise good the fact that a fee has to be paid or that such a fee is not a fixed fee but fee of a reasonable amount is no real objection if the plea is taken in this light, namely, that there is the alleged customary right in the defendants and there is also the customary right on the part of the plaintiff to realize the fee: see Mills v. Mayor of Colchester 2 CB 476. But, as already observed, the custom pleaded in the present case is indefinite and unreasonable and so cannot form the basis of a right which the defendants have claimed; and moreover the evidence that has been adduced, as already stated, is not sufficient to establish the elements of antiquity and continued user as of right which are essential to establish its existence as a custom.
5. The right claimed on behalf of the defendants has next been sought to be supported on the ground that they and their predecessors have acquired a prescriptive right under Section 26, Lim. Act, to fish in the beel in the manner alleged. All the grounds given for holding against the acquisition of a customary right, in our judgment, also apply to this contention that has been advanced. The present case, in our judgment, is covered by the decision of this Court in the case of Luchmeeput Singh v. Sadaulla Nushyo (1883) 9 Cal 698 except upon two points, which place it in a position of greater disadvantage than the case cited. In the first place the payment of a fee itself suggests some sort of permission to be obtained or implied. And in the next place the acquisition of a right of fishing through hired men is also not such a right as can be acquired by prescription. Of course, if the defendants instead of relying on a customary right had pleaded and proved that each particular defendant had acquired by prescription a right to fish in the beel by user on the part of himself or of some person through whom he claimed, the case would have been taken out of the decision in the case above cited. And if adverse possession could be proved it would have been governed by the decision in the case of Parbuti Nath Roy v. Mudho Parol (1877) 3 Cal 276. But the facts are otherwise in the present case.
6. Thirdly it has been argued, as the Subordinate Judge has also found, that the defendant have the status of settled raiyats who have been paying a rent in the shape of the fees that they have always paid. That the amount so paid is rent was the position that was taken by the defendant all along until recently when they began to rely on the alleged customary right. A tenancy of the kind alleged, rent being paid not for each kheo that is held but according to the number of persons that each holder of a kheo may choose to employ is a tenancy unknown to law. But there are other difficulties also in regarding the defendants as raiyats or of defending their claim on that footing. It cannot be disputed that Tenancy Act would not apply to the defendants: see Juggobundhoo Saha v. Pramatha Nath Roy (1878) 4 Cal 767, and it is not possible to imagine how their status can be regarded as that of settled raiyats. Of course, apart from custom, the only reasonable footing on which the defendants may rest their claim would be grant either in existence or of which, though lost, the existence may be presumed by reason of the time during which the right may have been exercised. But here again beyond the fact that there has been no opposition so far there is nothing else proved which would entitle us to hold that there ever was a grant, which implies a definite body of men in whose favour it was made and definite terms on which it was made. To establish that they have a permanent right in the kheos the onus was on the defendants: Nainapalli Marakayar v. Ramanathan Chettiar AIR 1924 PC 65, Subramaniya Chetiiar v. Subramaniya Mudaliyar AIR 1929 PC 166. In the decision just cited, their Lordships affirmed what was said by Sir Lawrence Jenkins in delivering the judgment of the same Board in the case of Seturatnam Aiyar v. Venkatachala Gounden AIR 1920 PC 67, namely, that where permanency is not the universal and integral incident of a holding (in that case the holding of an under-raiyat) if permanency is claimed it must be; established, and this may be done by proving custom, contract or title, and possibly by other means. In our opinion no permanency has been proved in this case.
7. In our opinion, the true view to take of the evidence in this case is to hold that the defendants or such of them or of their predecessors would care to fish in the beel were permitted to do so long as a fee of as. 8 per every fisherman was paid and that fee perhaps was considered sufficient to ensure reasonable profit to the proprietors. But no customary right nor any right by prescription accrued to those who fished under such a condition. And there was no grant of any kind which might form the foundation of any right on the part of the fishermen. On the other hand the fact that a fee was charged is sufficiently indicative of a leave and license, not necessarily express but certainly implied, which strikes at the foundation of the supposition as to the acquisition of a right. On the finding that the fishing was done under a leave and license, implied and not necessarily express, no question of limitation or adverse possession can possibly arise. It may not be out of place to state that in England it has been held that where the public have been allowed to fish in private waters even; from time immemorial, the permission is revocable at any time at the will of the proprietor: Holford v. Bailey (1873) 8 QB 1000. In connexion with cases of this nature it is well to bear in mind what was said by Bowen, L.J., with regard to the claim of the public to fish in non-tidal waters, in Blount v. Layard (1891) 2 Ch. 689.
There is another most important matter to be recollected as regards such streams as the Thames, viz., that although the public have been in the habit as along as we can recollect and so long as our forefathers can recollect of fishing in the Thames, the public have no right to fish there-I mean they have no right as members of the public to fish there. That is certain law. Of course they may fish by the license of the lord or owner of a particular part of the bed of the river or they may fish by the indulgence or owing to the carelessness or good nature of the person who is entitled to the soil, but right to fish themselves as the public they have none, and whenever the case is tried the jury ought to be told this by the judge in the most emphatic way, so as to prevent them from doing injury under the idea that they are establishing a public right. There is no such right in law.
8. We are sorry to have to hold against the practice which has hitherto obtained in respect of fishing in this beel, but when the right of the defendants has been denied we have to determine whether the right and not merely the practice exists. As regards the claim for damages which the plaintiffs have made, we are of opinion that there are no materials on which we can hold that such claim or any part of it has been established as against which of the defendants, if any. The plaintiffs have adopted the curious course of laying a claim against all the defendants jointly on the footing that they had a common cause and without making any effort to establish their individual liabilities. We are not satisfied that plaintiff 26 on the strength of the settlements obtained by him from the other plaintiffs in 1324 has a subsisting right entitling him to any relief in this suit. The result therefore is that the suit, in so far as it is a suit of plaintiff 26, is dismissed, that so far as the other plaintiffs are concerned they will obtain a permanent injunction restraining the defendants from fishing with dalkatas or khoes on the side of the beel without obtaining a settlement from the said other plaintiffs or some person or persons who may have derived title from them and that the rest of the claim in the suit should be dismissed. The appeal is allowed, and the decree of the Court below being sot aside, a decree will be made to the above effect. The costs of this litigation will be borne by the parties for themselves.