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2017 DIGILAW 1273 (ORI)

State of Orissa v. Bijoy Kumar Dwari

2017-11-07

A.K.RATH

body2017
JUDGMENT : Dr. A.K.RATH, J. 1. This is a defendants’ appeal against affirming judgment. 2. The dispute pertains to Ac.5.17 dec. of a tank land of mouza Kunbharmundhakta in the district of Mayurbhanj. The plaintiff-respondent instituted the suit for declaration of fishery right over the suit tank and permanent injunction. The case of the plaintiff is that in the year 1909, the then SDO, Mayurbhanj State granted lease of the tank with fishery right in favour of Panchanan Dwari, his grandfather. Panchanan was in possession of the same and enjoyed fishery right. After death of his grandfather, his father-Pranakrushna was in possession of the suit tank. In 1952 the State made an attempt to acquire the tank and hold auction of the same. His father initiated a proceeding before the S.D.O., Baripada. The auction was cancelled. Thereafter his father enjoyed fishery right without any hindrances from any quarter. After his death, the plaintiff continued to enjoy right all through. In the hal settlement, the suit tank was recorded under rakhit khata. With this factual scenario, he instituted the suit seeking the relief mentioned supra. 3. Defendant no.2 filed written statement denying the assertions made in the plaint. The specific case of the defendant no.2 was that no lease was granted in favour of Panchanan Dwari. The suit tank is the property of the Government. The general public used it for bathing and other purposes. The plaintiff had not filed any objection in sabk as well as hal settlement operation. 4. Stemming on the pleadings of the parties, learned trial court struck six issues. Both parties led evidence. The learned trial court came to hold that the plaintiff and his predecessor had fishery right over the suit tank on the basis of lease deed, Ext.3. The lease deed was not required to be registered in view of Regulation-7 of Mayurbhanj Regulation of 1896. Held so, it decreed the suit. The unsuccessful defendants filed T.A.No.3 of 1991 in the court of the learned District Judge, Mayurbhanj, Baripada, which was eventually dismissed. 5. The Second Appeal was admitted on the following substantial questions of law enumerated in ground nos. Held so, it decreed the suit. The unsuccessful defendants filed T.A.No.3 of 1991 in the court of the learned District Judge, Mayurbhanj, Baripada, which was eventually dismissed. 5. The Second Appeal was admitted on the following substantial questions of law enumerated in ground nos. A, B & C. The same are:- “(a) Whether the plaintiff-respondent can derive any right from Ext.3, which is admittedly an unregistered document when Sections 17 and 49 of the Registration Act specifically mandate that there can be no transfer of title by way of lease without registration in accordance with law and particularly when the fishery right is an immovable property within the meaning of Section 2(b) of the Indian Registration Act. (b) Whether the learned courts below were correct in resorting to the provisions of the Regulation 5 of 1896 relaxing the rigorous of registration when the law has been amended by Regulation 2 of 1904 under clause ‘Gha’ which has been specifically mandated therein on any lease for more than a year is registered as per Mayurbhanj Regulation relating to restraint, particularly when the source of title is the so-called lease deed Ext.3 which is dated 9.9.1909 and therefore, amenable to the provisions of the 1904 Regulation. (c) Whether the learned courts below exceeded in jurisdiction in directing the State Government authorities to accept the rent from the plaintiff-respondent when such a mandatory direction could not have been given in a simple suit for declaration.” 6. Heard Ms.Samapika Mishra, learned A.S.C. for the appellants. None appears for the respondent. 7. Ms.Mishra, learned A.S.C. for the appellants submits that the suit tank belongs to the Government. Right to carry fish is a ‘profit a prendre’. The same is to be construed as an immovable property within the meaning and ambit of the Transfer of Property Act, 1882. Ext.3 is an unregistered document. The same required compulsory registerable under Section 17 of the Registration Act. Both the courts below have committed a manifest illegality in placing reliance on an unregistered deed. Even if Mayurbhanj Regulation of 1986 was in force at the relevant point of time in ex-estate of Mayurbhanj, but then the Transfer of Property Act, 1882 and Registration Act,1908 had overriding effect over the same, when the alleged lease deed was executed. Both the courts below have committed a manifest illegality in placing reliance on an unregistered deed. Even if Mayurbhanj Regulation of 1986 was in force at the relevant point of time in ex-estate of Mayurbhanj, but then the Transfer of Property Act, 1882 and Registration Act,1908 had overriding effect over the same, when the alleged lease deed was executed. She relies on a decision of this court in the case of Biranchi Pradhan and another v. Collector, Bolangir and others, AIR 2017 Orissa 154. 8. In Biranchi Pradhan (supra), this Court held: “10. Ananda Behera and another v. State of Orissa and another, AIR 1956 SC 17 is a locus classicus on the subject. The dispute pertained to fishery rights of the plaintiffs over a portion of Chilka lake. The estate was vested in the State of Orissa under the Orissa Estates Abolition Act. Long before vesting of the estate, the petitioners had entered into contracts with the ex proprietor Raja of Parikud and had obtained from the latter, on payment of heavy sums, licences for catching and appropriating all the fish from the fisheries detailed in the schedule of the petition. The State of Orissa refused to recognise the licenses and were about to reauction the rights. At this juncture, the petitioner had approached the apex Court under Article 32 of the Constitution of India on the ground that their fundamental rights enshrined under Articles 19(1)(f) and 31 (I) were infringed. The question arose before the apex Court as to whether the petitioners had acquired any rights or interests in "property" by their several "purchases". The Constitution Bench of the apex Court held that the lake is immoveable property. After promulgation of the Orissa Estate Abolition Act, it vested in the State of Orissa. Right to catch and carry away fish in specific sections of the lake over a specified future period amounts to licence to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a ‘profit a prendre’ which has been regarded as a benefit that arises out of the land and, as such, is immoveable property. If ‘profit a prendre’ is regarded as tangible immoveable property and the property value is more than Rs.100/- it requires registration under Section 54 of the Transfer of Property Act. If ‘profit a prendre’ is regarded as tangible immoveable property and the property value is more than Rs.100/- it requires registration under Section 54 of the Transfer of Property Act. The same view was followed in the Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh and others, AIR 1977 SC 2149 . The apex Court in uncertain terms held that the right to catch and carry away the fish being a 'profit a prendre' i.e. a profit or benefit arising out of the land, it has to be regarded as immovable property within the meaning of the Transfer of Property Act, read in the light of Section 3 (26) of the General Clauses Act. If a 'profit a prendre' is tangible immovable property, its sale has to be by means of a registered instrument in case its value exceeds Rs.100/- because of Section 54 of the Transfer of Property Act. If it is intangible, its sale is required to be effected by a registered instrument whatever its value. Therefore, in either of the two situations, the grant of the 'profit a prendre' has to be by means of a registered instrument. Accordingly, the transaction of sale of the right to catch and carry away the fish if not effected by means of a registered instrument would pass no title or interest.” 9. The ratio in the case of Biranchi Pradhan (supra) proprio vigore applies to the facts of the case. 10. The dispute pertains to a tank having Ac.5.17 dec. of land of mouza Kunbharmundhakta in the district of Mayurbhanj. The value of which, by no stretch of imagination, is less than Rs.100/-. Right to catch and carry away the fish is a ‘profit a prendre’. The same is construed as immovable property within the meaning and ambit of the Transfer of Property Act, 1882 and its sale has to be by means of a registered instrument. Since no registered instrument has been executed, the plaintiff cannot derive any title. The Transfer of Property Act, 1882 and the Registration Act, 1908 have overriding effect of Mayurbhanj Regulation of 1896. The substantial questions of law are answered accordingly. 11. In the wake of the aforesaid, the impugned judgments are set aside. Consequently the suit is dismissed. The appeal is allowed. There shall be no order as to costs.