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2018 DIGILAW 567 (ORI)

NILANCHAL BAGARTY v. COLLECTOR, KALAHANDI

2018-05-16

A.K.RATH

body2018
JUDGMENT : A.K.Rath, J - This appeal is by the plaintiffs against a confirming judgment. The suit was for declaration of fishery right over the tank and permanent injunction. 2. A tank admeasuring Ac.9.85 dec. appertaining to Khata No.3, Plot No. 973, Ac.9.05 dec. and Plot No. 972, Ac.0.80 dec. of Mouza-Bandhagaon, P.S.-Junagarh, District-Kalahandi is the subjectmatter of dispute. 3. The case of the plaintiffs was that their father Tasi Goud excavated the tank over the suit land seventy years back for the purpose of irrigation and pisciculture. The suit land had been recorded in the name of the State in the year 1922-23 as well as 1955-56 settlement. Notwithstanding recording of land in the Settlement R.O.R., their father was in possession of the tank. Their father had the absolute right to catch fish and use water. After him, they were in possession of the same. It was further pleaded that they had renovated the tank and spent a huge amount. While matter stood thus, the Tahasildar, Dharamgarh, defendant no.3, transferred the suit land to the Rengasapali Gram Panchayat, defendant no.2 in August, 1987. No notice was served on them. The transfer was subject to the condition that the right of the party shall not be interfered with. The Sarpanch, Rengasapali, defendant no.2 had deprived them to catch fish and use water. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra. 4. The defendants entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendants was that Sadhu Goud, grandfather of the plaintiffs, was the Gountia of the village. He had excavated the suit tank over the Government land. He was in possession of the tank. The suit land was recorded as Jalachar in the name of the State in the year 1922-23 Settlement. After abolition of Gountia system in Kalahandi with effect from 01.04.1956, the right of Gountias had been extinguished and the Government became the exclusive owner of the tank. The plaintiff was not in possession of the suit tank. On 21.07.1987, the suit tank had been transferred to Rengasapali Gram Panchayat, defendant no.2, by Tahasildar, Dharamgarh. Defendant no.2 is in possession of the same. 5. Stemming on the pleadings of the parties, learned trial court struck nine issues. Parties led evidence. The plaintiff was not in possession of the suit tank. On 21.07.1987, the suit tank had been transferred to Rengasapali Gram Panchayat, defendant no.2, by Tahasildar, Dharamgarh. Defendant no.2 is in possession of the same. 5. Stemming on the pleadings of the parties, learned trial court struck nine issues. Parties led evidence. Learned trial court held that improvement list (Urnati Sadhan List) vide Ext.7, in the name of Tasi Goud was kept for reference during Durbar Administration in the State of Kalahandi. The same neither creates nor extinguishes title. It scrutinized Ext.7 and held that in column no.9, it is mentioned that the State of Orissa is the owner of the tank. There is no evidence on record that the father of the plaintiffs or the plaintiffs were in possession of the tank. After abolition of Gountia system, the rights of Gountias had been extinguished and the Government became the exclusive owner of the tank. The suit tank was excavated over the Government land. The plaintiffs have no title and possession over the suit tank. Held so, it dismissed the suit. Unsuccessful plaintiffs filed T.A. No. 23 of 1993 before the learned District Judge, KalahandiNuapada, which was eventually dismissed. 6. This appeal was admitted on the following substantial question of law:- "Whether the 'Unnati Sadhan Talika' (Ext.7) is sufficient to rebut the presumption arising from the Settlement Pattas, Exts.A and B ?" 7. Heard Mr. Bhubanananda Mishra, learned counsel for the appellants and Mr. Swayambhu Mishra, learned Additional Standing Counsel for the respondents. 8. Mr. Bhubanananda Mishra, learned counsel for the appellants submitted that Tasi Goud, father of the plaintiffs, excavated the suit tank over the land. The R.O.R. had been wrongly published in the name of the State. But then, the plaintiffs were in possession of the tank. They had the exclusive right to catch fish and use water. He further contended that in the improvement list (Urnati Sadhan List) vide Ext.7, the names of the plaintiffs find place. Ext.7 revealed that the suit tank was constructed by Sadhu Goud, father of the Tasi Goud. The courts below committed a manifest illegality in holding that Sadhu Goud was the Gountia of the village. After abolition of Gountia system, his right had been extinguished. Sadhu Goud was not the Gountia of the village. He excavated the tank over his rayati land. The courts below committed a manifest illegality in holding that Sadhu Goud was the Gountia of the village. After abolition of Gountia system, his right had been extinguished. Sadhu Goud was not the Gountia of the village. He excavated the tank over his rayati land. The plaintiffs were in possession of the land for more than seventy years back. He further submitted that the plaintiffs had the exclusive right to catch fish from the tank. The R.O.R. neither creates nor extinguishes title. 9. Per contra, Mr. Swayambhu Mishra, learned Additional Standing Counsel submitted that the suit tank was excavated over the Government land. The same was recorded in the name of the State in the year 1922-23 as well as 1955-56 Settlement R.O.R. The plaintiffs had no semblance of right, title and interest over the suit land. 10. Reliance placed on improvement list (Urnati Sadhan List) vide Ext.7 is totally misplaced. On a scrutiny of the said document, learned trial court came to hold that in column 9, the name of the State of Orissa found place. The plaintiffs had failed to substantiate the plea that the suit tank was excavated over their land. The tank was recorded in the name of the State Government in the year 1922- 23 as well as 1955-56 Settlement R.O.R. Both the courts below held that the plaintiffs had no title and possession over the suit tank. There is no perversity or illegality in the said findings. 11. In Ananda Behera and another v. State of Orissa and another, (1956) AIR(Supreme Court) 17, the apex Court held that 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. The same view was reiterated in the Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh and others, (1977) AIR(Supreme Court) 2149. 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 reiterated in the Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh and others, (1977) AIR(Supreme Court) 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. 12. The dispute pertains to a big tank having an area of Ac.9.85 dec. of Kalahandi district. The value of the property, by no stretch of imagination, is less than Rs.100/-. Admittedly, no lease was granted in favour of the ancestor of the plaintiffs by the ex-landlord. In the absence of any registered documents, the courts below rightly negatived the claim of the plaintiffs to catch fish from the tank. The substantial question of law is answered accordingly. 13. A priori, the appeal fails and is dismissed. There shall be no order as to costs. Final Result : Dismissed