1. These appeals are from decrees of the District Judge of Hooghly confirming decisions, of the Subordinate Judge, Second Court, Hooghly, and arise out of three suits brought, by the plaintiffs-respondents for declaration of their title to certain heels on the allegation that they form part of their jalkar Bankipore, and for recovery of possession thereof.
2. The plaintiffs claimed that the said jalkar of the river Hooghly with all its heels, canals, water-courses, waterways, etc., appertaining to, connected with, and forming part thereof formed one of the mouzahs of the permanently settled estate known as huda barabahorkuli, being Touzi No. 46 of the Burdwan Collectorate, that they, and their predecessors had been in possession thereof since the time of the Decennial Settlement, and that they had been dispossessed by the defendants in these suits on certain dates, in the years 1914 and 1915. They claimed title both by virtue of settlement as well as by adverse possession.
3. The defendants, while not disputing the plaintiff's title to jalkar Bankipore, contested the suits on various grounds, the main defence being that the heels in suit formed no part of jalkar Bankipore, that they are not situated in the old bed of the river, but are far away from it with cultivable lands intervening between them and the river, that the plaintiffs never exercised any fishery rights therein, and that their rights, if they ever had any, had become barred by limitation. The Court of first instance found the issues in favour of the plaintiffs and gave them decrees in all three suits. On appeal the District Judge confirmed the decisions of the Subordinate Judge and dismissed the appeals. The defendants then appealed to this Court.
4. The learned Vakils for the appellants have not attacked the finding in the Courts below on the issue of limitation, and the main contention, which has been urged before us is that of the facts and circumstances of the present case the Courts ought to have held that the disputed heels do not form part of the river, and the plaintiffs can have no right of fishery herein. It was argued that the mere fact that the heels are connected with the river only during a part of the year, when that river is swollen, is not sufficient to warrant the granting of a decree, that the plaintiffs claimed the heels as appertaining to their permanently settled estates, and that the question was whether they were entitled to follow the river when it became separate from the heels. The defendants, it was urged, did not dispute the plaintiffs' right of fishery in the main stream, but the heels have no connection with the main river, and it was incumbent upon the plaintiffs to establish the connection between the heels and the river, in Appeal No. 2198 the learned Vakil for the appellants contended further that the Courts below had from the beginning misconceived the law, on the subject and argued that it was essential to come to a finding that the beds are within the high banks of the river. It may be observed in passing that this is precisely what both Courts appear to have found. There are concurrent findings of fact in the Courts below (and the correctness of the findings of the Trial Court on this point was not assailed before the District Judge) that the heels in suit are situate within the high banks of the river Hooghly or Bhagirathi. Both Courts having arrived at, this finding then proceeded, relying mainly on the case of Bibi Ahmadi Begum v. Tarak Nath Ghose 21 Ind. Cas. 233 : 18 C.L.J. 399 : 17 C.W.N. 1173 and Sri Nath 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. 385 : 16 Bom. L.R. 901 : 41 I.A. 221 (P.C.) to hold that the plaintiffs were entitled to succeed.
5. In my judgment they have rightly so held. So far as this Court is concerned we are bound by the finding of fact arrived at in the Courts below that the heels are within the high banks of the river, in other words that they form part of the river, and when once that is accepted the only question which remains is what the effect of that finding is having regard to the authorities on the subject. In the case reported as Bibi Ahmadi Begum v. Tarak Nath Ghose 21 Ind. Cas. 233 : 18 C.L.J. 399 : 17 C.W.M. 1173 it was held that the bed of a river is that portion of the river which is in the ordinary and regular course Of nature covered by the waters of the river, that it need not be constantly covered, if in the ordinary course of things it is habitually covered. It was further held that the grantee of a fishery right in a river is entitled to fish in all waters comprised within the bank of the river, and the circumstances that a particular sheet of water may during part of the year be disconnected from the flowing stream or permanent current, does not affect the rights of the grantee: that a jalkar so situated in the river-bed is essentially part of the river, and the fish contained therein may properly be deemed fish of the river. It was further observed that, where the right of fishery is in a river, the Court has to be satisfied on a consideration of all the material facts and conditions whether it can fairly and reasonably be said that the waters over which the fishery is claimed are a part of the river.
6. The case of Sri Nath Roy v. Divabandhu v. 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. 385 : 16 Bom. L.R. 901 : 41 I.A. 221 (P.C.) was decided by their Lordships' of the Privy Council about a year after the case referred to above, and in their judgment the whole series of decisions on the subject in Bengal from 1807 to 1905 was reviewed and discussed. The following passage which occurs at page 520 of page of 42 C.--[Ed.] may be quoted: '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 up-stream and down-stream 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 rivers recent encroachment.'
7. As already stated the Courts below have found that the heels in question are within the high banks of the river, in other words that they form part of the river, and, that being so, it was rightly held that the plaintiffs in these suits were entitled to succeed.
8. In the result the appeals fail and are dismissed with costs.
9. I agree with the judgment that has just been delivered by my learned brother. The question to be decided is whether when a river shifts course and a beel forms in the old river bed, the right of fishery in the beel remains the property of the grantee of the exclusive right of fishery in the river. The answer depends on the question of fact whether the beel forms part of the river. If the beel is so separated from the river that it no longer forms a part of it, the fact that during the rains the beel overflows and joins the river does not give the grantee of the exclusive right of fisery in the river a right of fishery in the beel. But if the beel remains part of the river the right of fishery in the beel belongs to the owner of the fishery rights in the river even though the beel is disconnected from it except in the rains. The first proposition is supported by the case of Bhaba Prasad v. Jagadindra Nath Roy 33 C. 15 : 9 C.W.N. 934 the case on which the appellants mainly relied at the hearing of this appeal. The second proposition is supported by the cases of Bibi Ahmadi Begum v. Tarak Nath Ghose 21 Ind. Cas. 233 : 18 C.L.J. 399 : 17 C.W.N. 1173 and 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. 385 : 16 Bom. L.R. 901 : 41 I.A. 221 (P.C.). Here there is a clear finding by the lower Appellate Court that 'all the beels can fairly and reasonably be said to be a part of the river Hooghly or Bhagirathi in which the plaintiffs have admittedly got an exclusive right of fishery between Guptipara and Chakda'.
10. It is not suggested that this finding is vitiated by any error of law and on this finding which we must accept in second appeal the plaintiffs are entitled to the decrees which they have obtained.