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CASE NO.: Appeal (civil)  1610 of 1988

PETITIONER: Ramchandra Wahiwatdar Substituted by Moreshwar   

RESPONDENT: Vs. Narayan & Others                                        .

DATE OF JUDGMENT: 26/08/2003

BENCH: M.B. SHAH & Dr. AR. LAKSHMANAN.

JUDGMENT: J U D G M E N T

Shah, J.

Aggrieved by the judgment and decree dated 8.10.1987 passed  by the High Court of Bombay in Second Appeal No.112/80, the  plaintiff â\200\223 appellant has filed this appeal.   

At the time of hearing of this matter, despite service, none  appeared for the respondents.

At the outset, learned senior counsel Mr. Bobde  submitted that  dealing with  similar facts and contentions, this Court in Tulsi Ram  and others v. Mathurasagar Pan Tatha Krishi and another [(2003) 1  SCC 478] held that there cannot be any customary right of getting  lease or licence of profits-a-prendre of catching fish from a tank  owned by the appellant.

For appreciating the said contention, we would refer to the facts  and findings recorded by the Courts below: -

Plaintiff â\200\223 appellant filed Regular Civil Suit No.60 of 1998  before the Civil Judge (Jr. Divn.) at Ramtek for a declaration of title  to the tank and for permanent injunction restraining defendants from  interfering with the plaintiff’s rights to that tank either by fishing or  otherwise and also for recovery of Rs.2000/- as damages.  In that suit,  after recording the evidence, the trial Court arrived at the conclusion:  "that the proprietors used to give a right to catch and carry away fish  from the suit tank under the lease /leases that used to be granted by  them annually.  Some of those documents are (i) Waji-bularz for  1894-95 vide Ex.138 (ii) Wazi-bulurz for 1912-13 vide Ex.139 and  (iii) Wazi-bulurz for 1942-43, vide Ex.140.  There is however nothing  in these documents to show that the theka or lease used to be given  only to the Dhimars of Parshioni.  But, in view of plaint allegations, it  may be taken for granted such theka used to be given to the said  Dhimars.  What is, however, important to note in this connection is  that the said documents go to indicate that the act of catching fish in  the suit tank was only permissive and not on account of any  independent right as such as in the Dhimars."  The Court also  observed that the dhimars had no right independently of the theka  agreements with the proprietors and it was held that the dhimars  (defendants) had been catching fish in the suit tank not in their own  right of profits-a-prendre but only as licensees or lessees of the  plaintiffs.  Finally, the Court held that plaintiffs are absolute owners  of the suit tank and the defendants were restrained from interfering  with the plaintiffs’ right over the suit tank either by fishing or

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otherwise in future.

       Against that judgment and decree, defendants preferred Regular  Civil Appeal No.162 of 1975.  The Court after considering various  documentary evidence including the lease deed held that if this  document is given its plain meaning, it would show that dhimars had  got the fishing right under the lease and it was a permissive one. The  Court also held that from the evidence on record and the admission of  one of the defendants, it was clear that rights of the parties were  governed by the contract entered into between them.  The Court  thereafter arrived at the conclusion that custom has grown in the  village and it can be taken to be local custom followed by the  lambardar since time immemorial that the lease should be in favour of  the dhimars.  The court also held that dhimars have failed to prove  that they have an absolute right to fish and they have been exercising  the right independently in their own paramount right. The Court partly  allowed the appeal and held that the plaintiffs are absolute owners of  the suit tank.  However, it was further declared that the defendants  have a customary right to obtain lease or licence to catch and carry  away the fish from the plaintiffs’ tank and they have a right to catch  and carry away the fish from the tank by executing Thekapatra.  The  Court further directed that if the plaintiffs fail to give the lease or  licence, the defendants can move the Court for a suitable relief by way  of separate proceeding and that right of the dhimars is conditioned by  the fact that they have to pay Theka amount mutually to be agreed  between them and the plaintiffs.

       That judgment and order was challenged by the plaintiffs by  filing Second Appeal before the High Court. In that appeal, the Court  arrived at the conclusion that except the fishing rights, the defendants  have no other right or interest in the tank and that the custom of  fishing by the dhimars was in existence prior to 1861 and continued  thereafter, which shows that it is acquired by long user which was  recognised by the community and also by the administration.  The  Court thereafter observed thus:â\200\224 "â\200¦ In the year 1920 Central Provinces Land  Revenue Code came into force which describes the  Wajib-u-urj as the village administration paper under  Section 79 of the said Act.  In view of the above statutory  provisions it became a settlement record and statutory  presumption and correctness is attached to it.  It is  pertinent to note that while it is clear that the landlords  who own agricultural lands were declared as Lambardars  of the said tank for the reason that they were getting  water for irrigation from the said tank while the claim of  the dhimars â\200\223 fisherman as a customary right to fish from  the tank was not recorded subsequently because of their  low status and illiteracy.  In fact, their fishing right  should have been recorded in clear terms, but because of  their illiteracy they could not agitate their cases before  the authorities who had prepared the administrative  records of the said area during that period.  Agreement  Exh. 165 gave rise some explanation about the facts  which culminated in the agreement.  This agreement  shows the custom in favour of the dependants..."

Finally, the Court held that "the entire evidence, therefore, goes  to show that from the long usage followed between the parties the  practice of giving the fishing rights in respect of the suit tank has  grown since time immemorial to the dhimars only and that they have  got a customary right to obtain lease."  The Court observed that the  dhimars â\200\223 fishermen are having a customary right to catch and carry  fish from the suit tank for which the plaintiffs are bound to grant lease  or licence.  Hence, appeal was dismissed.

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That order is challenged by filing this appeal.                  From the record, it is apparent that there was no justifiable  reason for the High Court to observe that the claim of the dhimars â\200\223  fishermen as a customary right to fish from the tank was not recorded  because of their low status and illiteracy.      

       Further, at the time of admission of this appeal on 21.4.1988,  this Court passed following interim order: "Till the disposal of the appeal there will be stay.   The rights of the parties during the current year shall be  as determined by the award rendered by the District  Deputy Registrar, Co-operative Societies, Nagpur subject  to the right of the parties to challenge the quantum of the  profits so determined.  However, from the ensuing  fishery year and for every succeeding year, i.e. the  seeding season fishery right for each year would be put to  auction by the Sub-Divisional Officer, Ramtek and the  right would be given to the highest bidder.  The auction  price so recovered shall be deposited in the High Court.   The High Court will permit the appellants to withdraw  half of the amount on furnishing of Bank Guarantee to  the satisfaction of the trial court.  The High Court shall  deposit the remaining amount in a fixed deposit with the  State Bank of India."

       As no proper bidder came forward because of short period of  one year for fishery rights, an application was moved seeking  modification of the above order.  After calling the report of Sub-  Divisional Officer, this Court vide order dated 11.5.2001 modified the  aforesaid order dated 21st April, 1988 and passed the following order: "â\200¦.Our attention has been drawn to the  Government Circular dated 5th July, 1995, which has  categorised the ponds one having the area of 200 hectares  and another more than 201 hectares.  According to this, it  recommends five years to be the period for giving of  lease to the Society concerned.  This also reveals that it  takes about three years for getting fishing production.   Looking to the aforesaid facts and the report filed by  S.D.O., we feel it appropriate and accordingly direct by  modifying our order dated 21st April, 1988 by increasing  the period from one year to three years.  Rest of the  conditions may remain the sameâ\200¦"

At the time of hearing of this matter, learned senior counsel Mr.  Bobde contended that once it is established on record that the  respondents were exercising right to fish on the basis of lease or  licence, the High Court manifestly erred in arriving at the conclusion  that the respondents had acquired a customary right to obtain lease.  It  is his contention that once there is a lease, the rights of the parties are  governed by the lease-deed.  He also contended that if licence was  granted for fishing from tank, licence can be cancelled at any point of  time.  He relied upon the decision rendered by this Court in Tulsi  Ram’s case (supra), wherein the Court dealt with similar dispute from  the same area and finally negatived the contention raised by dhimars  of Ramtek.  The Court held that as a matter of fact, only a licence to  fish was granted and for grant of such licence, consideration was paid  by the fishermen which was used for the maintenance of tanks for the  sake of owners and not for the sake of fishermen. The tanks were  utilized for cultivating betel leaves which was and is their occupation.   The tanks which were the sole source of water for cultivation for the  betel leaves were maintained by the owners namely a body of barais.  

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The learned counsel further submitted that order in terms of the said  matter be also passed as the question involved in this matter is the  same.

In that case, the Court has directed that fishing rights be  auctioned and the rights thereof be conferred on dhimars.   

In our view, there is no reason to take any other view than what  is held by this Court in Tulsi Ram’s case (supra).  On this aspect, the  trial court has rightly relied on the documents produced on record  which indicates that the proprietors used to give a right to catch and  carry away fish from the suit tank under the lease/leases that used to  be granted by them annually.  Some of the documents referred to by  the trial court are (i) Waji-bularz for 1894-95 vide Ex.138 (ii) Wazi- bulurz for 1912-13 vide Ex.139 and (iii) Wazi-bulurz for 1942-43  vide Ex.140. From these documents and the averments made in the  plaint, the Court arrived at the conclusion that the dhimars were  having permissive right to catch fish from the tank.  Once there is a  permissive right under the lease or licence, it would be difficult to  arrive at the conclusion that the respondents have acquired customary  right to get lease or licence and that is settled by this Court in Raja  Braja Sundar Deb v. Moni Behara and others [1951 SCR 431]  wherein the Court after considering similar contentions held as  under:â\200\224 "It is again not possible to hold that the fishermen  residing in these villages are a corporate body and that  being fishermen by profession it has the effect of  incorporating them. We find ourselves unable to  subscribe to the view of the High Court that the  defendants constitute some kind of a unit simply because  they are a body having a common interest to fish in this  fishery; unless the defendants-fishermen form a corporate  body, or it is found that a trust was created for their  benefit, such a body of persons could acquire no right by  the doctrine of lost grant.  A right to fish from the fishery  based on mere inhabitancy is capable of an increase  almost indefinite and if the right exists in a body which  might increase in number it would necessarily lead to the  destruction of the subject matter of grant. Moreover,  there could not be a valid grant to a body so incapable of  succession in any reasonable sense of the word, so as to  confer a right upon each succeeding inhabitant.

For the reasons given above, the defendants’ right  to remain in possession of the fishery on the basis of a  lost grant or on the basis of prescription or adverse  possession stands negatived.  All that appears from the  evidence is that a number of fishermen from time to  time have been exercising the right of fishing with the  leave and licence of some of the owners.  This is not  sufficient for the acquisition of the right either by  adverse possession or by prescription.  Further, no  finding can be given in their favour as the evidence  does not establish that they have been paying uniformly  the same amount of rent."

The aforesaid judgment is followed by this Court in Tulsi  Ram’s case (supra).

In this view of the matter, the appeal is partly allowed.  The  judgment and decree passed by the High Court is modified.  The  judgment and decree passed by the trial Court is confirmed with a  modification that right to fish in the suit tank would be granted by a  public auction to the dhimars of that area. There shall be no order as

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to costs.