RAM LABHAYA, Ag. C. J.: This is a first appeal from the judgment and decree of the Second Additional District Jugde, U. A. D., at Jorhat, by which plaintiffs' claim was decreed to the extent of Rs. 77,000/- with proportionate costs against the Union of India. The suit was dismissed against the State of Assam. The Union of India has appealed. The suit was in­stituted originally against the Governor-Gene­ral in Council, the Secretary of State and the Province of Assam. During its pendency in the trial Court, the Union of India was sub­stituted for the first two defendants and the Province of Assam was described as the State of Assarn.

(2) The guilt was for recovery of a sum of Rs. 80,200/- This sum was claimed for tres­pass on and damage done to Nawpookhri Fishery of which the plaintiffs were the lessees. Plaintiffs 1 to 3 are the sons of the late C. K. Bezbaruah, plaintiff 4 (minor) is his grandson, and plff. 5 is the widow of late S. N. Bezbarua. All the piffs. claim to be the joint owners of the fishery known as Nawpookhri Fishery. C. K. Bezbarua died in August 1939. His right, title and interest in the fishery de­volved on the piffs. and one Krishna Kamal Bezbarua who also subsequently sold his in­terest to the piffs.

(3) C. K. Bezbarua in his life-time obtained a lease of Nawpookhri and Ailajan Fisheries from the Government of Assam for a. period of 3 years from 1-4-36 to 31-3-39. Plaintiffs' case is that in order to carry on the fishery on a commercial and scientific basis, late C. K. Bezbarua had to spend a considerable sum of money in reclaiming the said tank (Nawpoo­khri) and for improvements necessary to give effect to the scheme. As the three years' period of the lease was not enough for fully developing the fishery, the late C. K. Bezbarua got an extension of the lease for a further period of seven years. Besides the Nawpoofchri and Ailajan fisheries, the late C. K. Bezbarua got on lease all the Jamunas surrounding the Naw­pookhri tank. A lease of the western halveg of the northern and southern banks of the tank was, also obtained by him. These leases ran from year to year.

(4) It is claimed that late C. K. Bezbarua constructed fish-nurseries with auxiliary in­stallations at considerable expense. The construction of nurseries involved the putting up of a high embankment following the middle line of the Jamunas on all sides of the main tank (Nawpookhri). Thus the entire Jamuna was divided into two parts-the outer and the inner. The late C. K. Beztaarua then converted a portion of the inner Jamuna, namely, the western half of the northern Jamuna and the northern half of the western Jamuna, into a fish-nursery, and provided for the outlet of the fish in the fish-nursery by having a fish-tight gate constructed in the middle of the inner western Jamuna. Parts of the main tank were also enclosed for service as nurseries. These nurseries also were equipped with fish-tight gates. A bungalow and other dwelling houses were constructed on the banks after clearing the jungle. The investments came to about Rs. 20,000/- a year.

(5) In 1936-37 the late C. K. Bezbarua pur­chased a very large number of Row and Bahu spawns from Amta and Rajshahi in Bengal. These spawns were reared in the fish nurseries. The plaintiffs, after the death of C. K. Bez­barua, made further improvements, in the Fishery. They imported about 4,00,000/(four lacs) of Row and Bahu spawns in 1940 despite transport difficulties. In 1941 local Row and Bahu spawns numbering about 8000 (eight thousand) were put into the nursery tanks.

(6) It is alleged tin or about 10-3-1944, a company of United States Army men in fur­therance of the prosecution of the War, occu­pied the eastern bank of Nawpookhri tank. They pitched their tents there. Plaintiffs' men were prevented by the armymen from going to the eastern Jamuna, and so fishing had to be abandoned in that part of the fishery. The armymen later on extended their occupation up to the middle of the northern bank and installed

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