1. These appeals are directed against the decision of the learned Subordinate Judge, Third Court, Dacca, substantially affirming the decision of the Munsif, First Court, Narayanganj, in four suits instituted by the plaintiffs, for recovery of damages against the defendants, on the allegation that they caught fish in a part of the public navigable river Meghna, specifically described in the plaints, the exclusive fishery in which had been granted to Nawab Sir Ashanulla of Dacca, and of which the plaintiffs were in possession as patnidars. The case of the plaintiffs was that the Nawab had, by virtue of a grant from the Crown, an exclusive right of fishery in the part of the river in question. The defendants in the suits denied that plaintiffs right to the fishery and asserted that Nawab Sir Ashanulla had not obtained a grant from the Crown, so far as the exclusive fishery was concerned, and the plaintiffs could not therefore derive any title to the same by a settlement in their favour. It was asserted by the defendants that they had acquired an easement right to fish in the jalkar in question, and that they had also a customary right to do so. The case of the defendants was that a very large number of people of various districts openly catch fish without making any payment to anybody, as they had a right to catch fish in the jalkar in question as an easement as also by custom. The Court of first instance and the Court of appeal below agreed in deciding the cases, so far as the material questions in controversy were concerned, in favour of the plaintiffs: the variation made by the lower appellate Court in the decision of the trial Court related only to the measure of damages. The defendants have appealed to this Court.
2. In these appeals it has to be considered, first, whether the plaintiffs-respondents, could claim a right to the jalkar in in a public, navigable river as patnidars under the grantee under the Crown; whether there was a grant by the Crown of an exclusive fishery, which had been established by the plaintiffs, so as to enable them to assert their rights as patnidars under the grantee from the Crown. It must be taken to be established that an exclusive right of fishery in public, tidal and navigable rivers may be granted by the Crown to private individuals. As their Lordships of the Judicial Committee of the Privy Council have laid down in the case of Srinath Roy v. Dmabandhu Sen AIR 1914 PC 48, accepting the rule laid down by this Court in the case of Hori Das Mal v. Mahomed Jaki (1885) 11 Cal 484, the evidence of a Government grantee of an exclusive fishery in navigable waters ought to be conclusive and clear; but, in so far as such could be expected to be forthcoming as to particular grants, which were old, the evidence must be sufficient to show that the competent authority-the Government of India-in right of the Crown did actually grant a jalkar right of several fishery. In the cases before us, the Courts below have carefully reviewed the materials placed before the Court, and have come to the conclusion, on those materials, that there was direct and conclusive evidence of grant by the Crown ; that Nawab Sir Ashanulla of Dacca obtained a grant from the Crown, and then leased the jalkar to the plaintiffs. Our attention was drawn to two of the documents bearing upon the question of a grant from the Crown-Exs. 2 and 41 in the cases. These two documents, taken together, indicate that the exclusive fishery in question was intended to be sold and was sold along with a zamindari mahal in the year 1863 to Nawab Sir Ashanulla, from whom the plaintiffs obtained a patni settlement of the jalkar.
3. The documents, by themselves, may not be conclusive evidence of the grant from the Crown, but taking them into consideration, along with the other materials on the record, including judgments of competent Courts, directly bearing upon the questions in controversy, the Courts below have come to the decision that the case of a Crown grant, as asserted by the plaintiffs, was established. As was observed by their Lordships of the Judicial Committee of the Privy Council in the case of Wall Muhammad v. Muhammad Bakhsh , where the question to be decided is one of fact, it does not involve an issue of law merely because the documents which were not instruments of title, or otherwise the direct foundations of rights, but were merely historical materials, have to be construed for the purpose of deciding that question; and a second appeal would not lie because some portion of the evidence might be contained in a document or documents and the first appellate Court had made a mistake as to its meaning. Considered in the light of these observations, the decision concurrently arrived at by the Courts below on the question of fact, whether there was the grant of an exclusive fishery by the Crown, must be taken to be conclusive as between the parties concerned. The question of the plaintiffs' title by virtue of a settlement from the grantee of an exclusive fishery from the Crown, must, accordingly, be taken to have been established.
4. The right of easement was pleaded in the suit, as against the plaintiffs. It may be taken to be well settled now that a right in gross or profit a prendre, as it is technically called, as claimed by the defendants in these cases, may be established by the same sort of evidence as is used to establish either a profit a prendre appurtenant or an easement in the ordinary sense of the word: see Chundee Churn Boy v. Shib Chunder Mundul (1880) 5 Cal 945, Fadu Jhala v. Gour Mohun Jhala (1892) 19 Cal 544 (FB) and Lokenath Bidyadhar v. Jahania Bibi (1911) 12 IC 305. Evidence was adduced by the defendants in proof of the particular nature of easement asserted by them, and on that evidence the Court of appeal below has held that all the defendants in the four suits, who had claimed right of easement, failed to prove it.
5. The Court below has observed in this connexion that even if some fishermen on the banks of the river Meghna have fished in this jalkar without paying rent to any body from generation to generation, they may have individually acquired rights of easement ; but that does not amount to a complete ouster of the plaintiffs. There could not be any ouster of the plaintiffs, so far as the defendants in these suits were concerned, in view of the definite finding of fact referred to above, that all the defendants in these suits had failed to establish the right claimed by them. It was contended on this part of the case that the Court below is wrong in holding that the tenants of the plaintiffs, in respect of other properties, could not acquire by prescription a right to fish as claimed by the defendants; that the father's previous possession could not be tacked on to the subsequent possession by the son, and that the right to fish, acquired as an easement could not be inherited by the son, on the footing that such a right was not heritable. It is necessary only to express the opinion that we do not feel justified to express agreement or dissent on any of the points mentioned above as they do not call for decision in the present cases, in view of the findings arrived at by the Court below, that it has not been proved that the deceased father or any of the defendants acquired the easement as claimed. No evidence was led in these cases to prove the acquisition of easement by the deceased father of any of the defendants, and there was no specific evidence as to when the fathers of all the defendants died, or as to the period of their fishing. The acquisition of easement, as claimed by the defendants in the suits, must therefore be held not to have been established.
6. The defendants in the suits asserted that they had a customary right to catch fish in the plaintiffs' jalkar. An tissue was raised on the point, and the Courts below have given their decision against the defendants. The evidence bearing on this part of the case to which reference has been made by the Court of appeal below in its judgment is this:
A large fluctuating number of fishermen-the estimate varying from 800 or 900 to 2,000 or 3,000-coming from Dacca, Tippera and Chittagong Districts to catch fish in the meghna, acting either singly or in batches, using all kinds of nets, large and small. The plaintiffs have from time to time realized rent from some few of them, and have occasionally sued some of them successfully for rents or damages ; that owing to the vastness of the tract, most of them escape payment of rents or tolls The right, which the defendants claim, is to catch fish not merely for consumption in their own families, but for the purposes of sale.
7. On these facts, it cannot possibly be held as a matter of law that the defendants had or could have, a customary right to fish in the plaintiffs' jalkar. The relevant question on this part of the case was whether the right set up by the defendants can have for its basis a valid existing custom. Even on the assumption that the defendants had established a custom it cannot be treated as a valid custom on the ground of its unreasonableness. As has been pointed out in the decision of this Court in the case of Lutchmeput Singh v. Sadaulla Nushyo (1882) 9 Cal 698, according to the custom set up, there would be no limitation to the number of persons entitled to enjoy it. The number of persons may increase to any number and an unlimited number of persons can appropriate the profits of a private property, leaving nothing to the owner. Every custom sanctioned and upheld by the Court must be reasonable; a custom is unreasonable when it throws an unjust burden on some individuals fox the benefit of others; a custom may also be held to be unreasonable on the ground that it would destroy the subject matter of the right. On the last ground, it has been held by Courts in England that a profit a prendre cannot be acquired by custom. It has also been held that the chief reason, why a profit a prendre cannot be supported by custom in favour of an indifinite and fluctuating body of persons, is that, were such a right recognized, the result would be that the subject matter of the right would soon become exhausted: see Race v. Ward (1855) 4 E & B 702 and Lord Rivers v. Adams (1878) 3 Ex D 361.
8. In the cases before us on the facts to which reference has been made already the custom set up was not only unreasonable, but its very existence had not been established, the plaintiffs having succeeded in many instances in realizing rents or damages from some of the persons, on whose behalf collectively, the custom to fish in the river Meghna was claimed by the defendants in these suits. It may also be mentioned in this connexion that although the question, whether or not a custom is reasonable, is a question of law, the Court of fact has to look into the nature of the alleged custom and, if it finds it greatly affecting the rights of private property, it may fairly expect and require that it should be supported by evidence strong and convincing. In the cases before us, the Courts below, after careful consideration of the materials placed before them have concurrently held that the defendants have failed to prove that they had a customary right of catching fish in the plaintiffs' jalkar, and the conclusion thus arrived at by the Courts below cannot be ignored. The defendants in our judgment, could not be allowed to defeat the plaintiffs' claim in the suits on the ground of existence of any customary right in them as alleged by them in the suits.
9. The question of limitation as raised in the cases by the defendants, related to the question whether the plaintiffs' claim for damages in the different suits were to be confined to the period of two years before the institution of the suits, or whether the plaintiffs were entitled to recover damages for the wrongful appropriation of fish caught by the defendants for the period of three years before the suits were instituted. We are clearly of opinion that the article in Schedule 1, Limitation Act, appropriate to the cases before us, was Article 49. The period of limitation for claims to damages for wrongful taking of fish as made by the plaintiffs could in no way be different from that for a suit to recover compensation for damages for cutting and carrying away or misappropriating crops or a suit to recover compensation for wrongful removal of trees after they have been cut down and therefore according to the rule laid down by a Pull Bench of this Court in the case of Mangun Jha v. Dolhin Golab (1898) 25 Cal 692, no part of the claims in suit could be held to be barred by limitation, and not recoverable as such. The plaintiffs wore entitled to claim damages for three years preceding the institution of the suits.
10. In view of the conclusion we have arrived at on the questions submitted for our consideration in these appeals, as indicated above, the appeals are dismissed with costs. One hearing-fee is allowed in these appeals, which is assessed at three gold mohurs.
11. There were two applications for revision, filed in connexion with two of those appeals. The applications are rejected.