JUDGMENT:- This second appeal has been filed by the State of U. P. against a decree passed against them by the courts below. That decree is for a declaration that the plaintiffs are entitled to catch fish in Plot No. 968 area 314.24 acres which corresponds to Plot No. 1788 of First Settlement. It further restrains the defendants from interfering with the plaintiffs right to catch fish.

2. The plaintiffs predecessors Debi Bux Singh and others were formerly proprietors of village Kondar Pargana Mahadewa Tahsil Tarabganj, District Gonda where this pond is situate and is popularly called as Jheel Kondar. They however transferred their proprietary rights in this village to Raja Kishun Dutt Ram. But during the First Settlement Debi Bux Singh and others still claimed some under-proprietary rights with land as well as in the Jheel in question of which the total area at that time was 467 acres bearing number 1788, and also the groves, the banjar land and Abadi where their own houses and the houses of their servants were situate. The settlement Commissioner under his decree dated November 2, 1874 held that Debi Bux Singh and others (the descendants of the transferors existing at that time) had under-proprietary rights in an area of 218 bighas 9 biswas land which was in their cultivation as Sir on payment of annual quit rent at Rs. 443.73 paise. They were also declared to have under-proprietary rights in 20 bighas and 11 biswas of Banjar land and 17 groves which would be held rent free. They would also have under-proprietary rights in the sites of their own houses and those of their resident servants with right to fish and Khar in the said Jheel as well as the right to realise customary dues on ceremonial occasions like births and marriages from raiyats. This decree of the Settlement Commissioner was upheld in second Appeal by the learned Judicial Commissioner with this modification that a list of all the co-sharers on whom these rights were conferred was attached to the decree and the lands held by them as Sir or grove were specified therein. It is on the basis of that decree that the plaintiffs claim right to catch fish from the said pond even after the abolition of Zamindari without any let or hindrance by the State Government. Alternatively, they base their claim to that right on a customary easement also.

3. The defence of the State Government was that after the abolition of the Zamindari not only proprietary rights but all under-proprietary rights also vested in the State Government under Section 4 read with Section 6 of the U. P. Zamindari Abolition and Land Reforms Act (to be hereinafter called as the Zamindari Abolition Act) except the rights which were specifically saved under Section 7 or any other provision of the Act. About the ponds like the present one with a right of fishery therein there was a specific provision for its vesting in the State Government contained in Section 6 (a) (i) of the Zamindari Abolition Act. The State Government was managing and breeding fish in this pond for commercial purposes through its Fisheries Department. As regards the plea of custom it was alleged that no such custom existed and in any case such a custom was unreasonable which cannot be recognised by law.

4. Both the courts below held that on the basis of the decree dated November 2, 1874 passed by the Commissioner during the First Settlement proceedings, the predecessors of the plaintiffs had acquired a right of fishery in the said pond and that right was not taken away from them under the provisions of Section 4 read with Section 6 of the Zamindari Abolition Act. The State Government as successor-in-interest of Raja Kishun Dutt Ram would be bound by that decree. This finding has been challenged by the learned Chief Standing Counsel on behalf of the appellant.

5. From a perusal of the judgments of the Assistant Settlement Officer, the Commissioner and the Judicial Commissioner passed in settlement proceedings, which were on settlement record w

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