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2012 Supreme(Pat) 38
IN THE HIGH COURT OF JUDICATURE AT PATNA
V. NATH, J.
Bharat Singh - Appellant
Versus
State Of Bihar & Ors. - Respondents
Second Appeal No.521 of 1988
Decided on: 10.1.2012
Important Points
Subject
Property Law - Possessory Title and Fishery Rights
Act Referred
Headnote
Possessory Title - Fishery Rights - [The Bihar Land Reforms Act, 1950 - Section 3, The Indian Easements Act, 1882 - Section 7, The Indian Fisheries Act, 1897 - Section 2] - The court discussed the possessory title of the plaintiff over the Dhab land and the right to fish in the same. The judgment highlighted the legal principles from the Bihar Land Reforms Act, 1950, The Indian Easements Act, 1882, and The Indian Fisheries Act, 1897, and their interpretations that influenced the court's decision in favor of the appellant.
Fact of the Case:
The plaintiff filed a suit for declaration that 'Kapahiya Dhab' in Mallikpur is not a part of the government fishery 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 trial court decreed the suit in favor of the plaintiffs, but the appellate court reversed the judgment. The matter was remanded back to the appellate court, which again held that the plaintiffs have no legal right of fishery in the Dhab. The plaintiff appealed against this decision.
Finding of the Court:
The court found that the plaintiffs have been in possession of the Dhab land by exercising the right of fishery and cultivation. It held that the Dhab was not connected with the mainstream of the river Ganges except in the rainy season. The defendants' right of fishery in the Dhab was negatived, and the claim of the settlees-cooperative society was disbelieved.
Issues: The main issues were whether the plaintiffs had possessory title over the Dhab land and the right to fish in the same, and whether the appellate court was right in reversing the judgment of the trial court without considering the possessory title of the appellant.
Ratio Decidendi: The court held that the plaintiff, by proving effective and continuous possession over the Dhab land, was entitled to the right of fishery in the Dhab in question, even if the plaintiff had not succeeded in establishing title by purchase over the said land. The court emphasized the legal principle that the right of fishery can be declared only in favor of the owner of the 'Solum' and that possessory title can establish ownership of 'Solum'.
Final Decision: The court allowed the second appeal, set aside the judgment and decree under appeal, and upheld the judgment and decree passed by the trial court.
Advocate Appeared:
For the Appellant: Mr. K.N. Chaubey, Sr.Adv.
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. 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 Kapahiy
