The main legal point established in the judgment is that the right to catch and carry away the fish is considered a ‘profit a prendre’ and is construed as immovable property within the meaning and ambit of the Transfer of Property Act, 1982. Its sale has to be by means of a registered instrument in case its value exceeds Rs.100.

JUDGMENT :

Dr. A.K. RATH, J.

1. This is a plaintiffs’ appeal against the confirming judgment.

2. The case of the plaintiffs is that one Karmau Gountia, Thikadar of village Solabandh, had allotted a portion of cultivable ‘Bhogra’ land in favour of Bairagi Padhan, the ancestor of the plaintiffs, for construction of a tank. In the year 1916 patta was issued to him. Thereafter he excavated a tank over the said land. He was in possession of the same and exercising his fishery right over the same till his death. In 1916 settlement, since his possession was recorded unauthorized, the matter was agitated before the then ‘Darbar’ of Patna State. The Dewan declared the suit tank to be a public tank, but did not deprive him from his fishery right. After his death, the plaintiffs were in possession of the suit tank. In the year 1984, when the suit tank was transferred to Solabandh Gram Panchayat by the Government, they instituted the suit for declaration of their rights over the suit tank.

3. The defendants entered contest and filed a written statement denying the assertions made in the plaint. The stand of the defendants was that State was the paramount owner of suit tank. In the year 1936 the suit tank was recorded as “Jalchar’. In 1976 Settlement, the tank was recorded as ‘Rakhit’. Originally the suit tank was transferred to Pandamunda Gram Panchayat for its management on 17.4.1962. Subsequently the Gram Panchayat was divided. In the year 1967, Solbandh Gram Panchayat was reconstituted. The suit tank, which was originally transferred to Pandamunda Gram Panchayat, came under Solabandh Gram Panchayat for its management. When the public tanks of different Gram Panchayats were put to auction, plaintiff no.2, who was present at the time of auction, insisted the authority to lease out the suit tank in his favour. But then the suit tank could not be leased out since the Gram Panchayat had resolved to carry on pisciculture in the said tank in its meeting dated 19.6.1984.

4. On the pleadings of the parties, the learned trial court framed seven issues. To prove the case, the plaintiffs had examined ten witnesses and on their behalf, six documents had been exhibited. The defendants had examined nine witnesses and on their behalf, eleven documents had been exhibited. The learned trial court on a thread bare analysis of the evidence on record as well as pleadings held that the plaintiffs had failed to establish their rights over the suit tank and dismissed the suit. The unsuccessful plaintiffs challenged the said judgment and decree before the learned Civil Judge (Senior Division), Patnagarh in Title Appeal No.1 of 1986, which was eventually dismissed.

5. The Second Appeal was admitted on the substantial questions of law enumerated in grounds no.1 & 2 of the appeal memo. The same are:

“1. Whether Exts. 1 to 6 coupled with the evidence of P.Ws. and D.W.4 establish the right of the plaintiffs in this suit land and if the findings of the learned courts below on that score is perverse and liable to be interfered with?

2. Whether in absence of any evidence on record that Bairagi was ever evicted from the suit land, the learned courts below committed serious illegality in holding that neither plaintiffs nor Bairagi was in possession of the suit land whether the findings of the courts below that if Bairagi had any right the same has been extinguished in 1936 is sustainable in law?”

6. Heard Mr.Budhiram Das on behalf of Mr. N.C. Pati, learned Advocate for the appellants and Mr. P.C. Panda, learned Additional Government Advocate for the respondents.

7. Mr. Das, learned Advocate for the appellants submitted that Karmu Gountia, Thikadar of village Solbandh, had allotted Bhogara land in favour of Bairagi Padhan, the ancestor of the appellants for construction of a tank. Patta was issued in favour of Bairagi Padhan in the year 1916. Bairagi Padhan excavated a tank over the suit land from out of his own fund and was exercising fishery right over the same till his death. S