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2012 DIGILAW 38 (PAT)

Bharat Singh v. State Of Bihar

2012-01-10

V.NATH

body2012
JUDGMENT V. Nath, J.—Heard Mr. K.N.Chaubey, the learned senior counsel appearing on behalf of the appellant. No body has appeared on behalf of the respondents. 2. By order dated 17.05.2004 the respondent no.13 and respondent no.14 have been added as party respondents in this appeal and by the order of the court the copies of the complete set of the brief had been directed to be served upon the Learned Advocate General by the appellants which, according to the appellants had been served. In the said order dated 17.05.2004 the Learned Advocate General had been directed to depute a Government Counsel to appear for respondent nos.1, 13 & 14 but none had appeared on their behalf when this appeal had been called out for hearing. 3. This appeal has been filed against the judgment and decree dated 08.07.1988 passed in T.A.No. 87/64 by the Additional District Judge I, Bhagalpur reversing the judgment and decree passed by Additional Sub Judge II, Bhagalpur in T.S.No. 59/58 on 25.07.1964. 4. This appeal has been admitted for hearing by order dated 22.03.1990 by this Court and the following substantial questions of law have been framed:-- (i)Whether the court was right in ignoring the possessory title by the appellant while deciding the matter? (ii)Whether the appellate court was right in reversing the judgment of the trial court without noticing the fact that the land in dispute is a Diyara land which has not been surveyed? 5. The plaintiff is the appellant in this appeal. The parties hereinafter shall be referred to by their position in the trial court. The plaintiffs filed the suit for declaration that “Kapahiya Dhab” in Mallikpur is not a part of the government fishery bearing Tauji No. 614 of Dumka Collectorate and for further declaration that the plaintiffs are the owners and have got title to the Dhab and have got right to fish in the same. The material facts of the case of the plaintiffs is that the property mentioned in Schedule I of the plaint which included Kapahiya Dhab had been allotted to the plaintiffs in partition. The formation of the Dhab in Schedule I land has been mentioned in detail in the plaint stating therein that in the year 1915 major portion of village Malikpur was washed away by river Ganges and thereafter reformation started since 1934 and the dried bed of the river came into existence. The formation of the Dhab in Schedule I land has been mentioned in detail in the plaint stating therein that in the year 1915 major portion of village Malikpur was washed away by river Ganges and thereafter reformation started since 1934 and the dried bed of the river came into existence. Due to shifting of the course of the river Ganges, a vast tract of land emerged but due to deposit of sand and silt a big ditch was also formed in the middle of the land, described in Schedule 1 of the plaint, in the year 1942 and rain water started accumulating in the said ditch and the said ditch came to be known as “Kapahiya Dhab”. The plaintiffs’ ancestors were the purchasers of the land and the Dhab was the part of the said purchased land which subsequently had been allotted to the share of the plaintiff in partition. The plaintiffs have asserted that the Kapahiya Dhab is not in any way connected with river Ganges and there are about 7 to 8 villages between Kapahiya Dhab and the river Ganges. The plaintiffs have claimed that since after the formation of Kapahiya Dhab, it is being used by them for rearing fishes for fishing purposes in the rain water which accumulates during rainy season and for cultivation when the water dries out. 6. The contesting defendants’ case, mainly, is that the plaintiff have no right over the land of Kapahiya Dhab and have no right to fish in the said Dhab and it has been specifically stated in the written statement that the said Dhab is part and parcel of the river Ganges and is known as Ganga Path Fisheries Dhab. It has also been claimed that the said Ganga Path is part of Ganga Path Maksudpur Fishery and the Ganga Path Islampur Fishery Estate and has been recorded as such in Dumka Collectorate and is used to be settled on yearly basis with cooperative society which is in possession of the entire fishery estate including the Dhab in question. It has been denied that there is any Dhab known as Kapahiya Dhab and further that the plaintiffs have ever exercised their fishery right in the Dhab in village Malikpur. 7. In the trial court specific issue was framed with regard to the plaintiffs’ title over the Dhab land and their right of fishery in the said Dhab. It has been denied that there is any Dhab known as Kapahiya Dhab and further that the plaintiffs have ever exercised their fishery right in the Dhab in village Malikpur. 7. In the trial court specific issue was framed with regard to the plaintiffs’ title over the Dhab land and their right of fishery in the said Dhab. After considering the evidence of the rival parties in view of their pleadings and submissions, the trial court came to the finding that the plaintiffs had no title over the entire land over which the Dhab in question existed. It has also been found that the Dhab in question is not connected with the river Ganges and the plaintiffs have been fishing therein exclusively since after its formation. Further after finding that the defendants have no fishing right in the disputed Dhab and taking in notice that there is no other claimant, the trial court decreed the suit declaring the fishery right of the plaintiffs in the Dhab in dispute. 8. The defendants however, filed appeal against the aforesaid judgment and decree which was allowed by the appellate court and the suit was dismissed. Against this appellate decree, the plaintiffs filed S.A.No. 78/68 before this Court which was heard and disposed of on 13.05.1983 whereby the appeal was allowed and the judgment and decree of the appellate court below was set aside and the matter was remanded back to the appellate court below. In its judgment while remanding the matter this Court observed that the fishery right of the owners of the soil depended upon the fact whether the Dhab was connected with the main river and remained so connected through out the year and in case it was not so connected with the main river, the fishing right passed to the owner of the “Solum” and in view of this observation the appellate court was directed mainly to find out the said fact whether the Dhab was part of the river Ganges and continued to be connected with it through out the year and whether it was disconnected and the plaintiffs had title in the Dhab. After the remand the appellate court below heard the appeal, accordingly afresh, and has passed the judgment and decree holding that the plaintiffs have no legal right of fishery in the Dhab. After the remand the appellate court below heard the appeal, accordingly afresh, and has passed the judgment and decree holding that the plaintiffs have no legal right of fishery in the Dhab. This judgment and decree of the appellate court is impugned in this second appeal. 9. The learned senior counsel appearing on behalf of the plaintiff/ appellant has firstly submitted that the appellate court has rightly come to the finding that the Kapahiya Dhab is in existence as claimed by the plaintiffs. It has been further submitted that it has also been rightly held by the appellate court below that the plaintiffs are in possession of the said Dhab by rearing fishes when there is water in the Dhab and by cultivation when the Dhab dries up and as such the plaintiffs have been found in possession of the entire Dhab land. It has also been further submitted that the appellate court has rightly come to the finding that the Kapahiya Dhab in question is not connected with the mainstream of the river Ganges and its water dries up after 2 to 3 months of the rainy season and the defendant State of Bihar has no right of fishery in the said Dhab. However, it has been contended by the learned senior counsel that in view of the aforesaid findings appellate court should have held that the plaintiffs have got possessory title over the Dhab Land. It has been urged that the appellate court after finding that the Dhab is not connected with the river and the plaintiffs have been rearing fishes in the same since after its formation, should have declared the possessory title of the plaintiff over the Dhab land as there was no other claimant. Thus the submissions on behalf of the plaintiff/appellant is mainly confined to the first substantial question of law and the another substantial question of law has not been pressed. 10. After perusal of the impugned judgment and considering the submissions on behalf of the appellants, it is pellucid that the plaintiffs have filed the suit for declaration that the Kapahiya Dhab was not part of the government fishery under the Dumka Collectorate and further for declaration of their own title over the Dhab and their right to fish in the same. Although, the plaintiffs’ claim of title over the entire land, in a part of which Kapahiya Dhab, is situated, has not been accepted by both the courts below but the appellate court below being the final court of fact has come to the finding that the plaintiffs have been in possession over the Dhab land by exercising right of fishery and cultivation. It has also been found the said Kapahiya Dhab is not connected with the mainstream of river Ganges except in rainy season. Further the defendants’ right of fishery in the said Kapahiya Dhab have been negatived and it has been held that the said Dhab was not the part and parcel of Dumka Collectorate and the claim of the defendants that the settlees-cooperative society remains in possession of the Dhab by catching and rearing fishes has also been disbelieved. 11. In view of the aforesaid findings of facts including the finding regarding continuous possession of the plaintiff over the Dhab there is force in the contention of the learned senior counsel that the appellate court below should have declared the possessory title of the plaintiff over the Dhab land in question. The decision of the Privy Council reported in AIR 1946 P.C.92 has laid down that the right of fishery can be declared only in favour of the owner of the “Solum” and the appellate court had rightly relied upon the said decision. But thereafter, the appellate court below has failed to take notice of the fact that it is the plaintiff alone who has been found to be in exclusive possession over the Dhab land by rearing fishes when there is water and cultivating the land when the water dries up. There was no further case before the court that the owner of the “Solum” was somebody else. The apex court, in a decision in (V. Satyanarayan Raju Vs. J. Hanumayanma) AIR 1967 SC 174 , has laid down that in order to succeed on the basis of possessory title, the party should prove effective possession over the property. In this case, the plaintiff has succeeded in proving his effective and continuous possession over the Dhab land. The apex court, in a decision in (V. Satyanarayan Raju Vs. J. Hanumayanma) AIR 1967 SC 174 , has laid down that in order to succeed on the basis of possessory title, the party should prove effective possession over the property. In this case, the plaintiff has succeeded in proving his effective and continuous possession over the Dhab land. Then even if the plaintiff has not succeeded in establishing his title by purchase over the said land, he can still be construed to be the owner of “Solum” on the basis of his possessory title and therefore held entitled to the right of fishery in the Dhab in question. The appellate court below has wrongly held that the plaintiff have no legal right of fishery in the Dhab solely on the basis of the decision of the Privy Council (supra),without considering the aforesaid aspect and has wrongly reversed the judgment and decree of the trial court. The plaintiff/appellant, is therefore, held entitled to the decree as prayed for on the basis of his possessory title over the Dhab land upon which “Kapahiya Dhab” is situated. 12. For the foregoing reasons and discussions, this substantial question of law is answered accordingly in favour of the appellant. In result, this second appeal is allowed and the judgment and decree under appeal is accordingly, set aside and the judgment and decree passed by the trial court is upheld. There will be no order as to costs in the facts and circumstances of the case.