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Jadabendra Nandan Das Mahapatra and ors. Vs. Behari Mula and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal464,118Ind.Cas.888
AppellantJadabendra Nandan Das Mahapatra and ors.
RespondentBehari Mula and ors.
Excerpt:
- 1. this is an appeal by the defendants in a suit relating to fishery rights in a portion of a khal. the plaintiffs claim to have fishing rights over a certain area, which has been recorded in the record-of-rights of the year 1898 as being in the khas possession of the defendant, who are the landlords. the khal lies within the khas mehal, of which the defendants are temporary settlement-holders under government. the plaintiffs alleged that they had been dispossessed in 1923 by certain persons set up by the defendants to fish in the khal. the first court held that the plaintiffs had tenant-right in the fishery on a portion of the khal claimed by them. the second court has declared the right of the plaintiffs to fish in the whole of that part of the khal, and it also declared that their.....
Judgment:

1. This is an appeal by the defendants in a suit relating to fishery rights in a portion of a khal. The plaintiffs claim to have fishing rights over a certain area, which has been recorded in the Record-of-Rights of the year 1898 as being in the khas possession of the defendant, who are the landlords. The khal lies within the khas mehal, of which the defendants are temporary settlement-holders under Government. The plaintiffs alleged that they had been dispossessed in 1923 by certain persons set up by the defendants to fish in the khal. The first Court held that the plaintiffs had tenant-right in the fishery on a portion of the khal claimed by them. The second Court has declared the right of the plaintiffs to fish in the whole of that part of the khal, and it also declared that their rights are permanent.

2. An objection is taken in appeal to the declaration that the plaintiff's right is permanent. The learned Judge has given no satisfactory reason for coming to the finding that the tenancy of the plaintiff's is permanent. He states that so far back as the year 1833 the predecessor of the plaintiffs was recorded in the Government chitta of the khas mehal as having settlement of the fishery to that portion of the khal, and that subsequently, in the chitta of the year 1869, the son of that previous settlement-holder was recorded as a fisherman with fishing rights. Apart from that there is nothing that the learned Subordinate Judge could find to support the finding arrived at by him. In order that there should be a permanent right it is necessary that there should be a grant or that it should be possible to hold that a grant was implied. Mere recording in the Government chitta that certain persons have been given settlement of fishing rights does not prove that there was a permanent grant, nor does it lead to the presumption of a lost grant. The plaintiff's should have shown that it was at least the practice of Government to give permanent leases of fishing rights. In the absence of some sort of evidence from which one can infer that the settlement of the predecessor of the plaintiffs could have been permanent, the inference drawn by the Subordinate Judge from the chitta cannot be supported. The appeal is, therefore, allowed and the decree of the Subordinate Judge is modified to this extent that the fishery rights of the plaintiffs shall be declared not to be permanent . In other respects the decree of the lower appellate Court is confirmed. In the circumstances of the case we make no order as to costs in this appeal.


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