Ayub Ali Chowdhury and on his death Sujayat Ali Chowdhury v. Daya Bibi and Emdad Ali Chowdhury
1907-06-19
body1907
DigiLaw.ai
JUDGMENT 1. The suit out of which this appeal arises was brought to establish the Plaintiffs' claim to certain fishery rights in the river Titulia or Ilsa. The Plaintiffs have undoubtedly a jalkar named Bhasan Tetulia and registered as No. 1422 in the Backergunj Collectorate. The river Tetulia has now shifted its course and flows over the Defendants' zamindari in which they have jalkar rights. The question therefore is whether the Plaintiffs can follow the river, and claim their rights wherever it goes. The Judge in the Court below has found that the river Tetulia is a tidal and navigable river. He has therefore given the Plaintiffs a decree. The Defendants 1 and 2 appeal. On their behalf it has been contended (1) that the Judge's decree is wrong : (2) that the Plaintiffs are not entitled to a 16 Annas share in the jalkar, but only to a 12, annas 71/2 gundas share, and (3) that the Judge was wrong in giving the Plaintiffs a decree for does and khals. 2. In support of the first contention, the learned pleader has argued (1) that the Government has no right to lease fishery rights in tidal and navigable rivers and (2) that the Judge is wrong in holding that when a tidal and navigable river shifts its course, fishery rights continue to subsist in the river in its new course. 3. We do not think we need follow the learned pleader in his long argument on either of these points. It is sufficient to say that on both points the law as laid down by this Court is settled by long series of decisions, the correctness of which we see no reason to doubt. The case of Narendra Chandra Lahiri v. Nripendra Chandra Lahiri 10 C.W.N. 540: s.c. 4 C.L.J. 51 (1906) on which the Appellants' pleader relies relates to non-tidal and non-navigable rivers--and has therefore no relevancy. But in any case, the Subordinate Judge has found as a fact that the river Titulia, though it has shifted its course, has not proceeded beyond the limits of the Plain-tiffs' jalkar mehal No. 1422. The jalkar claimed by the Plaintiffs is still within the boundaries of his mehal No. 1422. 4. The Appellants' second plea must prevall. The Plaintiffs have only a 12 annas 71/2 gundas share in the jalkar mehal.
The jalkar claimed by the Plaintiffs is still within the boundaries of his mehal No. 1422. 4. The Appellants' second plea must prevall. The Plaintiffs have only a 12 annas 71/2 gundas share in the jalkar mehal. The deed executed in their favour with regard to it was signed only by 3 out of the 8 co sharers who it was proposed should sign the deed. Hence, the deed can only convey to the Plaintiffs the Interests of the signatories to it. 5. The third plea is of no avail. The Judge of the Court below has not given the Plaintiffs a decree for dones and khals but only for that portion of the flowing river Tetulia, which flows east of the Chars Assania and Bhaduria. We modify the decree of the lower Court restricting the Plaintiffs' rights to a 12 annas 71/2 gundas share in the jalkar. This order carries costs in proportion. In other respects the decree of the lower Court is affirmed with costs.