JUDGMENT

1. The Plaintiff-Respondent as part proprietor in two zamindaries, Pergunnah Mahabatpur Bander Khala Mouzah Mohal Chur Haya Hissa 8 annas Mudafat Bhowani Churn Rai, bearing Touzi No. 21 of the Dacca Collectorate and No. 5577 of the Faridpur Collectorate, and Pergunnah Mahabatpur Bhander Khala Mouzah Mohal Chur Haya Hissa 8 annas Mudafat Raj Kumar Rai, bearing Touzi No. 17 of the Dacca Colleotorate and 5574 of the Faridpur Collectorate, brought this suit to recover possession of a jalkar or right of fishery in a stretch of river which appears to be about 15 or 16 miles in length and which he described as jalkar Nari Kora Nadi otherwise known as Sore Nadi Nari Kora--alleging that it appertained to his zamindaries Nos. 17 and 21, that he and his co-sharers had all along been in possession of it till the 30th December 1899, when they were dispossesses by an order of the Criminal Court under sec. 145, Cr. P. C., declaring the principal Defendants to be in possession and confirming them in possession. The other shares in the jalkar were alleged to belong to the p(sic)o forma Defendants as part proprietors with the Plaintiff in the two zamindaries. The principal Defendants denied the title set up by the Plaintiff. They alleged that Nari Kora Nadi never formed a part of any main or navigable river but that it was a branch merely of the Puddabati, and that this branch had dried up. They contended that the jalkar in suit was included in their independent jalkar mehal, bearing Touzi No. 504 in the Dacca Collectorate and No. 6301 in the Faridpur Colleotorate, that its name was Ramkristo Jalkaria taluk, that it was entered as a separate estate in the Touzi Roll, bearing a sadar jama for Rs. 319-13.10-2, and that it covered the Ariel Khan river and portions of the Padma and Bhubaneswar rivers. They stated that the jalkar claimed by the Plaintiff extend over 15 or 16 miles of the Ariel Khan river, and was not included within the boundaries of the Plaintiff's two zamindaries.

2. A large number of Issues were framed but for the purpose of this appeal the 2nd and 3rd issues only are of importance. The findings on the other issues have not been contested. The decision of the 2nd issue depends on the decision of the 3rd issue. For the present therefore it is only necessary to discuss the 3rd issue. It is framed as follows : "whether the Plaintiff has his alleged title to the disputed jalkar." The Plaintiff's title to Nari Kora jalkar, if such a jalkar he in existence at present, is not denied by the principal Defendants. Nor is the right of the principal Defendants to the independent jalkar. Ram Kristo Jalkaria, denied by the Plaintiff. The main questions requiring determination for the decision of the issue were (1) what was the nature of the Plaintiff's jalkar? Was it merely a territorial right of fishery confined to the limits of the Plaintiff's zamindaries, and as such one which would be lost should the stream in which it existed have dried up or have been diverted to a bed outside the limits of the zamindaries? Or was it a franchise or incorporal right of fishery, the subject of an independent grant from Government, which gave them a right of fishery in a stream or river wherever the channel of the stream or river might shift to, and which right was independent of any title to the bed of the stream or the adjacent soil? (2) If the Plaintiff has a right of fishery in a portion of the river over which the right in Buit is claimed, does his right extend over the whole of the portion of the river in which it is claimed in the suit, or if only over a portion, then over what portion?

3. In support of their claim the Plaintiff relied first on the result of certain resumption proceedings taken by the Collector of Faridpur in 1860--the result of which was that the jalkar which the Collector then proposed to resume was released by order of the Divisional Commissioner dated the 16th June 1861 : also on certain judgments in suits in which the Plai