JUDGMENT 1. The Plaintiff-Respondent as part proprietor in two zamindaries, Pergunnah Mahabatpur Bander Khala Mouzah Mohal Chur Haya Hissa 8 annas Mudafat Bhowani Churn Rai, bearing Touzi No. 21 of the Dacca Collectorate and No. 5577 of the Faridpur Collectorate, and Pergunnah Mahabatpur Bhander Khala Mouzah Mohal Chur Haya Hissa 8 annas Mudafat Raj Kumar Rai, bearing Touzi No. 17 of the Dacca Colleotorate and 5574 of the Faridpur Collectorate, brought this suit to recover possession of a jalkar or right of fishery in a stretch of river which appears to be about 15 or 16 miles in length and which he described as jalkar Nari Kora Nadi otherwise known as Sore Nadi Nari Kora--alleging that it appertained to his zamindaries Nos. 17 and 21, that he and his co-sharers had all along been in possession of it till the 30th December 1899, when they were dispossesses by an order of the Criminal Court under sec. 145, Cr. P. C., declaring the principal Defendants to be in possession and confirming them in possession. The other shares in the jalkar were alleged to belong to the p(sic)o forma Defendants as part proprietors with the Plaintiff in the two zamindaries. The principal Defendants denied the title set up by the Plaintiff. They alleged that Nari Kora Nadi never formed a part of any main or navigable river but that it was a branch merely of the Puddabati, and that this branch had dried up. They contended that the jalkar in suit was included in their independent jalkar mehal, bearing Touzi No. 504 in the Dacca Collectorate and No. 6301 in the Faridpur Colleotorate, that its name was Ramkristo Jalkaria taluk, that it was entered as a separate estate in the Touzi Roll, bearing a sadar jama for Rs. 319-13.10-2, and that it covered the Ariel Khan river and portions of the Padma and Bhubaneswar rivers. They stated that the jalkar claimed by the Plaintiff extend over 15 or 16 miles of the Ariel Khan river, and was not included within the boundaries of the Plaintiff's two zamindaries. 2. A large number of Issues were framed but for the purpose of this appeal the 2nd and 3rd issues only are of importance. The findings on the other issues have not been contested. The decision of the 2nd issue depends on the decision of the 3rd issue. 2. A large number of Issues were framed but for the purpose of this appeal the 2nd and 3rd issues only are of importance. The findings on the other issues have not been contested. The decision of the 2nd issue depends on the decision of the 3rd issue. For the present therefore it is only necessary to discuss the 3rd issue. It is framed as follows : "whether the Plaintiff has his alleged title to the disputed jalkar." The Plaintiff's title to Nari Kora jalkar, if such a jalkar he in existence at present, is not denied by the principal Defendants. Nor is the right of the principal Defendants to the independent jalkar. Ram Kristo Jalkaria, denied by the Plaintiff. The main questions requiring determination for the decision of the issue were (1) what was the nature of the Plaintiff's jalkar? Was it merely a territorial right of fishery confined to the limits of the Plaintiff's zamindaries, and as such one which would be lost should the stream in which it existed have dried up or have been diverted to a bed outside the limits of the zamindaries? Or was it a franchise or incorporal right of fishery, the subject of an independent grant from Government, which gave them a right of fishery in a stream or river wherever the channel of the stream or river might shift to, and which right was independent of any title to the bed of the stream or the adjacent soil? (2) If the Plaintiff has a right of fishery in a portion of the river over which the right in Buit is claimed, does his right extend over the whole of the portion of the river in which it is claimed in the suit, or if only over a portion, then over what portion? 3. In support of their claim the Plaintiff relied first on the result of certain resumption proceedings taken by the Collector of Faridpur in 1860--the result of which was that the jalkar which the Collector then proposed to resume was released by order of the Divisional Commissioner dated the 16th June 1861 : also on certain judgments in suits in which the Plaintiff's father, the predecessor-in-title of the pro formd Defendants, and the predecessors-in-title of some of the principal Defendants were parties (Ex. 25, 26, 19, 20 and 21 in the Court of the Munsif). 25, 26, 19, 20 and 21 in the Court of the Munsif). They also examined 13 witnesses to prove that the reaches of the river in suit formed the Nari Kora jalkar. 4. The principal Defendants examined 23 witnesses to prove that the portion of the river in which the Plaintiff claims the right of fishery form a portion of the Ariel Khan river, that it was included in the fishery mehal which was settled with the ancestors of the principal Defendants, and that therefore the Plaintiff had no right to it. They also adduced documentary evidence and relied on the survey maps to support their case. 5. The Munsif found that the portion of the river in suit was the Nari Kora river and that the Plaintiff had made out his title to the right of fishery claimed in that portion of the river. He accordingly gave him & decree for khas possession against the principal Defendants with costs. 6. On appeal the judgment and decree of the Munsif were confirmed by the District Judge with this modification that it was to be stated In the decree that Plaintiff's right was confirmed to one anna share only and the case map was ordered to be made part of the decree in order to show distinctly the limits of the Plaintiff's jalkar and so to avoid future disputes. 7. Against the judgment and decree of the District Judge on appeal the principal Defendants have appealed to this Court. There are in all three appeals, No. 382 of 1905 by the Defendants Nos. 1 and 2, No. 891 of 1905 by Defendant No. 42 and No. 959 of 1905 by Defendant No. 22. They have been heard together and the same arguments apply to all. 8. In dealing with the appeal to his Court the District Judge has noticed in his judgment that the decision of the case must depend on the determination of the two points which we have already mentioned in this judgment as arising under the 3rd issue framed in the Court of first instance, and we think that in paras. 4, 5 and 6 of the judge's judgment as printed in the paper-book of the appeal he has set out clearly and correctly the case which was before him for decision. 9. 4, 5 and 6 of the judge's judgment as printed in the paper-book of the appeal he has set out clearly and correctly the case which was before him for decision. 9. In the first point be has come to (sic) conclusion that the Plaintiff has est(sic) ed his title to an independent ja(sic) in the river Narikora, and on (sic) he states that it being (sic) behalf of the Appellants (sic) pendent right of fisher(sic) river is not effected (sic) course of the river, the Plaintiff has succeeded in establishing his title to the jalkar in suit. 10. On behalf of the Appellants it has been urged that the evidence on which the District Judge has relied is not such as in law could support his finding that the Plaintiff had established his title to an independent jalkar, that he has not given proper consideration to the right set up by the Defendants or properly understood the evidence on which it is based, that in estimating the value as evidence of the maps which were filed by both parties in the suit he has erred in law in drawing a presumption favourable to the accuracy of a map prepared for private purposes in a private suit in preference to the survey maps prepared under the authority of the Government, that he has suggested reasons for distrusting the accuracy of the survey map of 1859-60 which it is impossible to support or justify, and that he has been misled in dealing with the evidence by the value which he has attached to that document. 11. Neither from the judgment of the Court of the first instance nor from that of the Court of the first appeal have we been able to ascertain whether the stretch of river in which the Plaintiff in his suit claimed rights of fishery lies within the limits of the two estates of (sic) he is a part proprietor. That (sic) of river seems to be 15 or 16 (sic) length and the case for the (sic) as presented to us has been (sic)erable portion of that stretch (sic)tside the territorial limits (sic) estates. That (sic) of river seems to be 15 or 16 (sic) length and the case for the (sic) as presented to us has been (sic)erable portion of that stretch (sic)tside the territorial limits (sic) estates. Unless then (sic) establish that be had a right to the fishery independent of his right to his estates it is clear that under the law he could have no title to any such right in a navigable river or any part of a navigable river lying outside the boundaries of his estates. In the case of Prosunno Coomar Sircar v. Ram Coomar Parooey I. L. R. 4 Cal. 63 (1878) and in the Full Bench case of Hori Das Mal v. Mahomed Jaki I. L. R. 11 Cal. 434 (1885), it is clearly laid down what evidence is necessary to prove the grant of an independent right of fishery in a navigable river. 12. Where fishery mehals, that is to say, rights of fishery in navigable rivers independent of the estates through which they pass, have been granted by Government, and where separate estates paying separate revenue to Government have been created it is usual to find some entry of such estate in the papers prepared at the time of the decennial settlement. So far as the independent right of fishery claimed by the contesting Defendants is concerned they have produced a copy of the entry relating to it in the Mahalwari Register of 1857.60 and this entry shows that for the jalkar the revenue payable to Government was Rs. 317.13.101/2. 13. The Plaintiff however has produced no such document and in support of his title he has relied on the following evidence which the District Judge has accepted as sufficient to establish his title to an independent grant of fishery in a navigable river either inside or outside the territorial limits of his estates. 14. The first document is Ex. 25, a judgment in suit No. 15 of 1854 instituted by Ananda Mohun Pal and others against the father of the Plaintiff and others for recovery of possession of fishery rights in Narikora river on the allegation that it was a branch of the Padmabati river, and to have set aside an order passed under Act IV of 1840 declaring the Basu Defendants (predecessors of the present Plaintiff) to be in possession. The Basu Defendants claimed the jalkar as included in Pargana Mahabatpore Banderkola, the revenue for the jalkar being Rs. 88. The suit was dismissed. This judgment is relied on as establishing the title of the Plaintiffs to the jalkar and as proving that even then the jalkar was claimed as an independent jalkar. The District Judge has accepted it as proving these two facts. 15. We are unable to agree with the District Judge that this document can be accepted as proving that the jalkar was claimed as an independent jalkar. Even from the statement of the case as given in the judgment of the District Judge it is clear that the Defendants pleaded that the jalkar was one held in connection with their zamindari, and in our opinion the only possible meaning of this expression is that it was one dependent on the zamindari and included within it. The fact that the revenue of the fishery was separately set out in the settlement of the estate made by Government with the predecessors-in-title of the Plaintiffs, would be no indication that the jalkar was separate or independent from the estate. In determining the Government revenue to be fixed for an estate the officers of Government had to take into consideration the profits from all sources in each estate which the proprietor was then deriving and to assess the revenue on the basis of those profits: and in cases where profits were derived from fisheries or other such like sources of income within the estate it is not unusual to find that the Government revenue is calculated on all separately, the total making up the revenue for the whole estate. The mere separate specification of the amount of revenue calculated on the basis of the profits realised from fisheries within the estate could not be taken to be proof that there was a separate grant of a fishery Independent of the estate. Nor is it reasonable to suppose that a person having Independent rights to a fishery irrespective of his estate would consent to have his separate estate in that fishery and the revenue due in respect of it amalgamated with his rights and the revenue of his landed estate. Nor is it reasonable to suppose that a person having Independent rights to a fishery irrespective of his estate would consent to have his separate estate in that fishery and the revenue due in respect of it amalgamated with his rights and the revenue of his landed estate. Further, if any such amalgamation of two separate estates had been made we should expect that some official record of the same would have been prepared which the Plaintiff could have produced in support of the rights he claims in the present suit. We think then that the document relied on neither proves the assertion of an independent right by the Plaintiff's predecessors-in-title nor that they had such a title. 16. It is also clear from the judgment of the District Judge that from that judgment the boundaries of the jalkar in dispute in that suit could not be clearly ascertained. 17. Further in that suit the predecessor of Defendant No. 42 put in an objection claiming that the jalkar was a portion of their jalkar Ariel Khan. The suit was dismissed, but that was no decision as between the Defendants in that suit and the predecessors-in-title of Defendant No. 42 with regard to the title set up by the latter. The decision in that suit cannot be held therefore to amount to a decision in favour of the title set up by the predecessors-in-interest of the Plaintiff as against the claim advanced by the predecessors of Defendant 42. 18. It can only be held to determine that the Plaintiffs in that suit failed to establish their title as against the Defendants in that suit. 19. The next documents on which the District Judge relies are the map Ex. 34 prepared for the purposes of that case and the survey map of 1859, and on these documents, which are on the face of them contradictory, he arrives at a conclusion which is not supported by the latter, vis, that with the exception of thak halka 1904 in the Revenue Survey Map the whole channel of the Ariel Khan river between the Ganges and the junction of that halka with the river Narikora had dried up. In fact he holds that in two years, i.e., between 1857 and 1859, the bed of a large river like the Ariel Khan had entirely disappeared for a distance of some 10 or 15 miles. In fact he holds that in two years, i.e., between 1857 and 1859, the bed of a large river like the Ariel Khan had entirely disappeared for a distance of some 10 or 15 miles. This is in our opinion a finding which is not supported by the survey map. 20. The next documents relied on by the Plaintiffs were exhibits 23 and 24, the orders passed by the Collector of Faridpur and the Divisional Commissioner in the proceedings taken under Reg. II of 1819 for the purpose of resuming the jalkars described as Narikora alias Ariel Khan and Nadi Moynakata alias Keskabpur Khal and settling them with other parties. In those proceedings the predecessors of the Plaintiff who were Defendants put in objections claiming the jalkar as appertaining to their two estates Mudafat Raj Kumar and Mudafat Bhobani Churn Roy in Pargana Mahabatpur Bander Kola, while the claimants Guru Prasad Roy and others claimed the jalkars as appertaining to their estate Pargana Vikrampur. The Collector in his robakiri dated 2nd April 1861 directed the resumption of the jalkars, but on appeal the Divisional Commissioner on the 15th June 1861 set aside the order of the Collector and released the jalkars from the claim of Government. 21. These documents are relied on, and have been accepted by the District Judge as proving that the jalkar claimed in the present suit was then released as a jalkar belonging to the Defendants. 22. It is to be observed that in those proceedings the jalkars are described as in portions of the river extending from the west of the river Padma up to the east of Ariel Khan. This description is hardly consistent with the case of the Plaintiffs which the District Judge has accepted that the upper portion of the Ariel Khan river had dried up between 1857 and 1859, but rather favours the case of the contesting Defendants. 23. Nor is it consistent with the case of the Plaintiff that the jalkar was an independent jalkar. It "was claimed as appertaining to estates of the Defendants," i.e., the predecessors of the present Plaintiff, and the- papers referred to in the robakari of the Commissioner show that the alkar jama was mentioned in them in the schedules and kismuts appertaining to the estates and in the chowhaddi milani papers. It "was claimed as appertaining to estates of the Defendants," i.e., the predecessors of the present Plaintiff, and the- papers referred to in the robakari of the Commissioner show that the alkar jama was mentioned in them in the schedules and kismuts appertaining to the estates and in the chowhaddi milani papers. This certainly goes to support the opposite conclusion, namely, that the jalkar was then released not as an independent jalkar but as a jalkar dependent and appertaining to the Defendant's estates. 24. The Plaintiffs next relied on the judgments of the original and appeal Courts in two suits, No. 221 of 1861 and No. 50 of 1862 (Ex. 19 and 21 in the Munsif's Court). The first was instituted by the predecessors of Defendants 1 and 2 against the predecessors of the Plaintiff and the latter by the proprietors of Bikrampur. Both were for recovery of possession of portions of a jalkar and for Betting aside an order under Act IV of 1840. The predecessors of Defendants 1 and 2 claimed the jalkar as a portion of their jalkar Ariel Khan. Both suits were dismissed. The District Judge in accepting these documents as supporting the Plaintiff'S title in the present suit, at the same time remarks that "the exact extent of the river in dispute in these suits cannot be accurately ascertained from the documents field:" and, though he appears to hold that suit No. 50 of 1862 covered no portion of the land in dispute in the present suit, he adds that he thinks suit No. 221 of 1861 probably related to a portion of the river in dispute in this suit. This can hardly be accepted as a distinct finding in favour of the present Plaintiff. 25. Lastly the Plaintiff relied on the judgment in the suit No. 710 of 1867 instituted by the predecessors of the present Plaintiff and his co-sharers. This was apparently the outcome of the previous litigation and was also dismissed. 26. At most these judgments can be accepted as proving that the predecessors of the Defendants Nos. 1 and 2 failed to recover possession from the predecessors of the Plaintiff of certain jalkari which may or may not have formed portions of the jalkar now in dispute; and failed. 26. At most these judgments can be accepted as proving that the predecessors of the Defendants Nos. 1 and 2 failed to recover possession from the predecessors of the Plaintiff of certain jalkari which may or may not have formed portions of the jalkar now in dispute; and failed. There is nothing to show that the portion of the river in which the jalkari were then claimed lay outside the limits of the Plaintiffs estates or that their predecessors claimed them by virtue of any grant which gave them a right of fishery in a portion of a navigable river irrespective of whether it was included in their estates or not. In fact the only possible inference to be drawn from those papers is that the portions of water in which the fishery rights were claimed lay within the Plaintiff's estates and were claimed by them as appertaining to those estates. 27. The fact too that the jama for the jalkars was only Rs. 88 supports the inference that the right of fishery only extended over water within the estates of the present Plaintiff aud was not an independent right of fishing in a navigable river extending, as it must have then extended if the Plaintiff's case were true, over some 10 miles or more, or, as now claimed, over 15 or 16 miles. 28. In 1899 proceedings were taken under sec. 145, Cr. P. C., in the Magistrate's Court regarding the jalkars in dispute in the present suit and an order in favour of the contesting Defendant was passed. 29. There can be no doubt that in the present suit the onus lay on the Plaintiff to prove his title. The title which he has essayed to prove is that the jalkar which he claims is the subject of an independent grant from Government. The documentary evidence on which he has relied entirely fails to support any such title and we are of opinion that the District Judge has erred in law in holding that they support such a title. The inference which he has drawn from the document is one of law and not one merely of fact and we are unable to accept the contention of the learned pleader for the Respondents that the present appeal is concluded by those findings. 30. The inference which he has drawn from the document is one of law and not one merely of fact and we are unable to accept the contention of the learned pleader for the Respondents that the present appeal is concluded by those findings. 30. In dealing with the documents relating to the resumption proceedings in 1861 the District Judge has misstated the findings of the Divisional Commissioner. There is no finding that the jalkar was an independent jalkar in a navigable river under which the predecessors-in-title of the Plaintiffs had a right of fishery in that river outside the limits of their estates and wherever the channel might shift to. The description of the jalkar given in those proceedings and the pleadings leaves in our minds no doubt that the jalkar which the Revenue authorities then sought to resume was included within the territorial limits of the present Plaintiff's estates, and was claimed by their predecessor as appertaining to those estates. It is in our opinion impossible to hold that in one estate paying revenue to Government two distinct estates were Included, one involving a territorial right and the other a franchise or incorporal right or fishery wholly independent of the territorial right. The grounds on which the District Judge has held that there was such an amalgamation of rights are insufficient in law, and he has been misled by the opinion which he formed of the legal effect of those documents. 31. We also are of opinion that the Judge was in error in stating that in the different suits in which the Plaintiff's predecessors-in-title were concerned in 1857 and from 1861 to 1867 the title which they put forward was that the jalkar was independent of their estates and that that claim was upheld in every Court. The judgments in those suits which are relied on by the Plaintiff clearly prove that the right claimed throughout was one appertaining to the zamindaries and that it was regarded as such by the different Courts. There is no suggestion in any of them of an independent grant. 32. In dealing with the maps we are also of opinion that the District Judge has fallen into serious error. He relies entirely on the map prepared in Suit No. 15 of 1854. The map is a rough one prepared by an amin. There is no suggestion in any of them of an independent grant. 32. In dealing with the maps we are also of opinion that the District Judge has fallen into serious error. He relies entirely on the map prepared in Suit No. 15 of 1854. The map is a rough one prepared by an amin. In notes attached to it, there is a statement that the description of the different places cannot be relied on, and that it is to be used only for the purposes of that suit. Yet the District Judge has relied on that map and the description and names which are given in it of the different rivers and streams in preference to the survey map of 1859-1860. The learned pleader for the Respondents admits that he cannot support one at least of the District Judge's reasons for distrusting the survey map, which is that "Government was about that time trying to ignore the jalkar Narikora and Moynakata and resume it as the property of Government." It is impossible to believe that the officers of Government, responsible for the preparation of the survey maps would intentionally have misstated facts and misnamed rivers to support proceedings which the Revenue officers were to institute two years afterwards. The presumption of law certainly is that in the absence of evidence to the contrary, survey maps prepared for public purposes by responsible officers of Government are entitled to more reliance, than maps prepared for private purposes in a private suit, and we are of opinion that the District Judge erred in law in placing greater weight as evidence on the map prepared in the Suit No. 15 of 1854. Further it is to be observed that the amin's map prepared in that suit was not drawn to scale and there is nothing to prove, even if the various rivers and streams are correctly named in it, that the map is any indication of the respective size and importance of each. It is admitted that Ariel Khan has all along been a large river running out of the ganges and it seems to us impossible to hold in the face of the evidence afforded by the survey map that the Ariel Khan river disappeared and dried up for 10 or 15 miles between 1857 and 1859 and that the river Narikora took its place for that distance. 33. 33. The survey map corrected up to 1875 which seems to have been filed by the Defendants, but which is not noticed by either of the lower Courts, goes to support the inference to be drawn from the survey map of 1859-1860. 34. Whether the thak halka, 1902, as alleged by the Defendants covered the whole of the water in which the fishery rights of the Plaintiff were admitted by Government seems very doubtful, in view of the subsequent litigation, but we are of opinion that the only possible inference to draw from the survey maps is that the river Narikora was a branch stream, only running through the estates of the Plaintiff. If the fishery claimed in the present suit runs through the Plaintiff's estates and can be held to be identical with the fishery claimed in the previous suits the Plaintiff may be able to establish his right to it. But in determining the question the rights which the Defendants have under the independent fishery mehal, which admittedly they hold, will have to be taken into consideration. If that independent right of fishery be held by the Defendants to give them fishery rights in the Ariel Khan river from its junction with the ganges to the point noted in the Mehalwari register and if the Ariel Khan river has changed its course so as to pass through the estates of the Plaintiff, the question will then arise for determination whether the stretch of river in which fishery rights are claimed in the present suit forms a part of the Ariel Khan river and whether as such the Defendants are entitled to rights of fishery in it. 35. We hold therefore that the findings of the lower Courts that the Plaintiff has established that he had an independent right of fishery in the river Narikora, which would entitle him to the enjoyment of that right in a navigable river outside the territorial limits of his estate is not supported by the evidence and that the only legal inference which can be drawn from the documentary evidence filed in the case is that at most the Plaintiff's predecessors had a jalkar In the maters of the Narikora so far as those waters lay within the ambit of their estate. 36. 36. Under these circumstances it is in our opinion necessary that the appeal should be remanded to the lower Appellate Court for re-hearing subject to this finding. 37. It will be for the judge to determine on the evidence what part, if any, of the reach of river in which fishery rights are claimed in this suit lies within the territorial limits of the Plaintiffs' estate and, having determined that point, to come to a conclusion whether the Plaintiff has a right of fishery in that portion of the river irrespective of the rights which the contesting Defendants have under the Ramkristo jalkar mehal which is admittedly an independent right of fishery in certain portions of the river including certainly a portion of the river Ariel Khan. It will be necessary in order to determine this question to decide what is the extent of the Defendant's right of fishery and whether if the river or a portion of it, over which the Defendant has the right, has changed its course and now flows through the estates of the Plaintiff, the Defendant has under his grant a right to follow the river into it new course and to exercise rights of fishery in it to the exclusion of the Plaintiff. We accordingly direct that the appeals be remanded to the lower Appellate Court in order that the Judge may arrive at distinct findings on these points, and then dispose of the appeals. Costs will abide the result.