JUDGMENT Khundkar, J. - This appeal arises out of a suit instituted by three plaintiffs for a declaration that they had a right of easement to catch fish in the Barisal river without payment of rent or boat-fee. That river is a public tidal and navigable river, but the plaintiffs maintain that they and their predecessors had exercised the right claimed by them for a period over 100 years. The defendants in the suit were the Province of Bengal and one Akhil Ali Sikdar with whom the Government had made a settlement of the right of fishery in the disputed part of the river. The defence was that the plaintiffs had acquired no right of easement, and that the fishery rights were legally vested in defendant 2 upon whom the Government had conferred those rights by settlement. 2. The trial Court dismissed the suit, but the lower appellate Court reversed that decision upon the finding that there was no legal bar to the acquisition of a right of fishery in a public and tidal navigable river as an easement, and that the plaintiffs had acquired such a right by user over the requisite period. The learned lower appellate Court held that the evidence in the case was sufficient to establish that the plaintiffs had exercised the right to fish in the disputed part of the river openly, peacefully, uninterruptedly and as of right for over 60 years. 3. On behalf of the appellants in this appeal, it has been contended, in the first place, that apart from the question of any easement by prescription, the right of persons as members of the public to catch fish in this river was capable of being taken away by a settlement such as that which the Government in the present case had made with defendant 2. This contention has not really been challenged and it is unnecessary to refer to it any further. The only two questions which arise for determination are, firstly, whether an actual right of fishery, as distinct from mere custom or sufferance, can ever be acquired by individuals as members of the public or otherwise over a public tidal navigable river, and secondly, whether in the present case it is open to the plaintiffs to claim such a right as an easement by prescription. With regard to the first question, it seems to be settled now that a right of fishery may be acquired by private individuals over a public tidal navigable river. In 42 Cal. 489 Srinath Roy v. Dinobandhu Sen ('14) 1 A. I. R. 1914 P. C. 48 : 42 Cal. 489 : 41 I. A. 221 : 25 I. C. 467 (P. C.) Lord Sumner in delivering the judgment of the Judicial Committee of the Privy Council quoted the following passage from the judgment of O'Hagan J. in (1868) 2 Ir. R. C. L. 143 Murphy v. Ryan (1868) 2 Ir. R. C. L. 143 : 16 W. R. 678 at p. 149 : But whilst the right of fishing in fresh-water rivers in which the soil belongs to the riparian owner is thus exclusive, the right of fishing in the sea, its arms and estuaries, and in its tidal waters, wherever it ebbs and flows, is held by the common law to be publici juris and so to belong to all the subjects of the Crown; the soil of the sea and its arms and estuaries and tidal waters being vested in the Sovereign as a trustee for the public. The exclusive right of fishing in the one case and the public right of fishing in the other depend upon the existence of a proprietorship in the soil of the private river by the private owner and by the Sovereign in a public river respectively. And this is the true principle of the law touching a several fishery in a tidal river. 4. The question whether a right of fishery in a river could be acquired by adverse possession was considered in 61 I. A. 78 Secretary of State v. Debendra Lal Khan ('34) 21 A. I. R. 1934 P. C. 23 : 61 Cal. 262 : 61 I. A. 78 : 147 I. C. 545 (P.C.). In that case a suit had been instituted against the Government for a declaration of the plaintiff's title to the bed of a certain river between certain points, and of his right of fishery therein, his case being that his zemindary included that stretch of the river. Alternatively, he claimed title by adverse possession of over 60 years. In that case a suit had been instituted against the Government for a declaration of the plaintiff's title to the bed of a certain river between certain points, and of his right of fishery therein, his case being that his zemindary included that stretch of the river. Alternatively, he claimed title by adverse possession of over 60 years. The evidence in the case established the fact that the plaintiff had over the requisite period been exercising the right of fishery through persons to whom he had leased out that right. It was held by the Privy Council that the plaintiff had established a claim by adverse possession. In the present case the plaintiffs are not claiming by adverse possession, but their contention is that their predecessors had originally commenced to fish in the river over a 100 years ago, a thing which they had every right to do as members of the public. Their case further was that this right had been exercised by their predecessors and by themselves ever since openly, publicly, peaceably, without interruption and as of right. They accordingly claimed that under S. 26(2), Limitation Act, they had acquired a right of fishery as an easement by prescription, and that the Government and defendant 2 were not entitled to exclude them from the continued enjoyment of that river. 5. It seems to us that there is one aspect of the matter which did not present itself to the Court of appeal below. That Court has not considered whether continuous enjoyment of the right to fish which the plaintiffs claimed was in assertion of a right to exclude other members of the public from the selfsame enjoyment. When an exclusive right of user is claimed by a member of the public who commenced to exercise that right originally as a member of the public, it must in the first place be shown that the right has been exercised by that person so as to exclude from its enjoyment all persons claiming to be entitled to it in the same capacity. If this is not established, a mere right of user cannot surely crystallise into an easement by prescription. If this is not established, a mere right of user cannot surely crystallise into an easement by prescription. The user would have to be one which constituted an infringement of the general right of other members of the public, and the assertion of that right by the individual who seeks to prescribe would have to amount to an ouster of all other members of the public. In 39 Cal. 53 Abhoy Charan v. Dwarka Nath ('12) 39 Cal. 53 : 11 I. C. 180 it was held that to establish an exclusive right of fishery in a tidal and navigable river it is necessary to prove that the plaintiff's user was in assertion of a right other and higher than the general right of the public to fish. Coxe and Teunon JJ. stated in that case that when the plaintiff first began to fish at the site in question, he did so in the exercise of the common right which he shared with all members of the public, and that in the absence of circumstances indicating that the plaintiff's user was in assertion of a right other and higher than the general right, it could be referred only to such general or common right. As far as it appears from the judgments of the Courts below, there is no evidence at all to show that the plaintiffs in the present case and their predecessors, when exercising their right to fish in the disputed portion of the river, were not exercising it in common with other members of the public or that they or any of them ever sought to exclude other members of the public from fishing there. In the admitted facts of this case we do not see how any evidence to establish such a continuing user could ever be forthcoming. The appeal must accordingly be allowed. The judgment and decree of the lower appellate Court are set aside and those of the trial Court restored. The appellant is entitled to its costs of this appeal. Biswas, J. 6. I agree.