Back
2002 Supreme(SC) 1102
2002(8) Supreme 15
SUPREME COURT OF INDIA
(From Mumbai High Court)
Umesh C. Banerjee & Y.K. Sabharwal, JJ.
Tulsi Ram & Ors. -Appellants
versus
Mathura Sagar Pan Tatha Krishi & Anr. -Respondents
Civil Appeal No. 1170 of 1980
With
C.A.No. 645 of 1981
Decided on 12-11-2002
Counsel for the Parties :
For the Appearing Parties : V.A. Bobde, Sr. Advocate, Uday Umesh Lalit, Shyam Mudaliar, Ms. Gauri Gupta, A.K. Sanghi, K.L. Taneja, N. Mahabir, R.R. Chandrachud and Shree Pal Singh, Advocates.
IMPORTANT POINT
High Court was right in holding that appellants-defendants cannot claim the right to catch fish in the Mathurasagar Tanks either by way of lost grant or by way of customs. But as suggested the fishing rights be auctioned and the rights thereof be conferred on the highest bidder.
[Editorial Note : These appeals have taken more than 20 years to be decided by Apex Court. Justice delayed is justice denied. More so when in courts below there was jig-jaw battle on the issue since 1954].
Headnote:(i) Doctrine of "Lost grant"-The doctrine has no application to the case of inhabitants of particular localities seeking to establish rights of user to some piece of land or water-It is a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user (see paras 1 to 3).
(ii) Claim to right to catch fish in Mathurasagar Tank by appellants/defendants either by way of a lost grant or by way of custom-Decreed by trial Court and appellate Court-But dismissed by High Court-Appeal against -Privately owned artificial water tanks-Two communities interested in its maintenance and use-Appellants for fishing and respondents for betel leaves plantations-Some arrangement arrived at recorded in revenue record as "Wazid-ul-arz"-M.P. Abolition of Proprietary Rights, 1951 and rights of Malguzars-Proprietors in these tanks were extinguished-Whether High Court was right in rejecting rights of the appellants-defendants? (Yes)-Appeal dismissed.
Held : As a matter of fact only a licence to fish was granted and the same stands corroborated by the fact that there was even consideration therefor viz. the amount that was to be paid by the fishermen. It was used for the maintenance of the tanks not for the sake of the fishermen but for the purposes of the owners; for utilizing the tanks for cultivating betel leaves which was and is their occupation. This was particularly so because the body of Barais was large - in fact, larger than that of Dhimars - and it was in their common interest that the tanks which were the sole source of water for cultivation for the betel levels were maintained. For that reason alone, fishing was allowed for a price. On the wake of the above discussion, we do not feel it inclined to interfere with the order of the High Court. The appeal, therefore, fails and is dismissed. No costs. (Paras 24 and 25)
(iii) Right to claim fishing rights on artificial tanks of others-Claim on basis of lost grant or customs dismissed-Source of livelihood-Suggestion to grant it by auction-Accepted-Direction.
Held : We place on record our appreciation therefore and thus direct that the fishing rights be auctioned and the rights thereof be conferred on to the highest bidder. (Para 26)
Held further : It is further ordered that till the auction as directed above, takes place, mesne profits as determined by this Court shall continue to be paid. (Para 27)
Held finally : The appeal thus stand disposed of as above. No costs. (Para 28)
JUDGMENT
Banerjee, J.-Since the decision of this Court in Braja Sundar (Raja Braja Sundar Deb v. Moni Behara & Ors.: 1951 SCR 431), the legal phenomena pertaining to the doctrine of lost grant seems to be well settled. This Court in Braja Sundar (supra) upon reliance on the observations of Lord Radcliffe in Laxmidhar Misra v. Rangalal (AIR (37) 1950 PC 56) stated as below :
"........ This doctrine has no application to the case of inhabitants of particular localities seeking to establish rights of user to some piece of land or water. ............ the doctrine of lost grant originated as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user and that since it originated in grant, its owners, whether original or by devolution, had to be such persons as were capable of being the recipients of a grant, and that a right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant, there being no admissible grantees."
2. This Court further in Braja Sundar (supra) upon reference to a Bench decision of the Calcutta High Court in Asrabulla v. Kiamatulla (AIR 1937 Cal. 245) was pleased to observe that no lost grant can be presumed in favour of a fluctuating and unascertained body of persons.
3. It would be convenient at this stage, however, to note in slightly more greater detail the observations of Lord Radcliffe in Laxmidhar Misra (supra) as below :
"6. The doctrine of lost grant gives no firmer basis for the appellants case. This doctrine originated as a technical device to enable title to be made by prescription despite the impossibility of proving "immemorial user". By English common law prescription had to run from time immemorial which by convention began in the year 1189. If it was possible to demonstrate that the user in question, though ancient, originated since 1189 the proof of title by the prescription of immemorial user failed. To get round this difficulty, Judges allowed or even encouraged juries to find that the right in question, though less ancient than 1189, originated in a lost grant since that date. Thus the right acquired the necessary legal origin. But such a right just as much as an easement, had to be attached to and to descend with an estate : moreover, since it originated in grant, its owners, whether original or by devolution, had to be such persons as were capable of being the recipients of a grant under English law. A right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant. There are no admissible grantees. In fact the doctrine of lost grant has no application to such rights as those of the inhabitants of a particular locality to continue an ancient and established user of some piece of land."
4. Turning attention on to the fact situation of the matter in issue be it noted that the present litigation has been between the Barai community being the proprietors of certain tanks in the village known as Mathurasagar and the fishing community called the Dhimars of Ramtek, which happen to be represented by Tulsi Ram & Ors., being the appellants herein. It is not in dispute that there was a group of five tanks in this village, water from which was drawn for the purpose of irrigation by the Barais who had betel leaves plantations. These tanks at one time presumably were also a good fishing ground and fish used to be caught and collected by the fishermen community in the neighbourhood. The tanks are artificial and as the record goes to show and suggest, were privately owned. As both the communities were interested in the maintenance of the tanks and water therein for their benefit, some arrangements seem to have been arrived at and the same came to be recorded and noted in a document popularly described as Wajib-
