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HIGH COURT OF NAGPUR
Hidayatullah, R Kaushalendra Rao
NARAYAN S/O SHANKERRAO – Appellant
Versus
LAXMIBAI W/O DIWAKERPANT – Respondent
Letters Patent Appeal No. 2 of 1916
Decided on : 17-07-1950
ADVERSE POSSESSION - FISHERY RIGHTS - RIPARIAN RIGHTS - PRESCRIPTION - SEVERAL FISHERY - OWNERSHIP OF SOIL - ENGLISH LAW - APPLICATION UNDER SECTION 6, CENTRAL PROVINCES LAWS ACT XX [20] OF 1875 - ADVERSE POSSESSION OF SEVERAL FISHERY LEADS TO OWNERSHIP OF SOIL.
Fact of the Case:
The plaintiff, claiming ownership of a village, sued the defendant for exclusive possession of a fishing ground (Bandhara) in a river flowing between their villages. The defendant claimed ownership of the Bandhara and denied the plaintiff's possession. The trial court and the first appellate court found in favor of the plaintiff, holding that she had acquired title to the Bandhara by adverse possession. The second appellate court reversed the findings of the lower courts and held that the Bandhara was situated in the defendant's village and that the plaintiff had not established adverse possession.
Finding of the Court:
The High Court restored the findings of the trial court and the first appellate court. It held that the plaintiff had established adverse possession of the Bandhara for over 38 years, and that this adverse possession had extinguished the defendant's title as riparian owner. The court also held that the plaintiff had acquired ownership of the soil beneath the Bandhara, as the several fishery right she had acquired by adverse possession merged with the soil.
Issues: 1. Whether the Bandhara in question was situated within the boundary of Mouza Dundakheri or Mouza Kalapetha? 2. Whether the plaintiff was estopped from asserting her title due to reasons alleged in the defendant's written statement? 3. Whether the plaintiff was in continuous adverse possession for more than 38 years?
Ratio Decidendi: 1. The court held that the plaintiff had established adverse possession of the Bandhara for over 38 years, and that this adverse possession had extinguished the defendant's title as riparian owner. 2. The court also held that the plaintiff had acquired ownership of the soil beneath the Bandhara, as the several fishery right she had acquired by adverse possession merged with the soil. 3. The court applied the principles of English law on several fishery and ownership of soil, under Section 6 of the Central Provinces Laws Act XX [20] of 1875, as there was no local custom or law to the contrary.
Final Decision: The appeal was dismissed, and the plaintiff's suit for exclusive possession of the Bandhara was decreed.
1. This is a Letters Patent appeal against the judgment & decree of Bose J. (now C.J.) in Second pp. No. 102 of 1942 filed with the leave of the learned Judge. The deft. is the appt. & the claim of the pltf. was decreed against him in three Cts.
2. The facts as stated by the pltf. are as follows: The pltf. is the proprietor of 8 annas patti No. 2 of mouza Dundakhairi in Ramtek tahsil. The deft. is the proprietor of mouza Kalapetha. The river Pench flows between these two villages & divides them. In the Pench there is a spot known as Ghogra Ghat, & in that spot are three fishing grounds known as Bandharas. The subject-matter of the present suit was one of these Bandharas situated in the close vicinity of a rock known as Chauradeo. The pltf's: map shows the location of this Bandhara. The course of the river is fixed because it flows between rocks & is not alterable. The pltf. claimed to be in possession of all the three Bandharas, which were said to be situated within the area of mouza Dundakhairi. These Bandharas yield a yearly income of Rs. 150 to Rs. 300 & Rs. 5 is assessed by Govt. on that income. The pltf. claimed that she & her predecessors before her had exclusively enjoyed the rights in the Bandharas till Oct. 1938. These Bandharas used to be leased out annually to one Mangia son of Rama Dhiwar, but in 1936 the deft's guardian grand mother Rangoobai in collusion with Mangi who was not given the lease in 1936 started by claiming the Bandharas.
3. As a result of these quarrels proceedings under Section 145, Cr. P.C., were started & on the request of the parties the question within which village the Bandharas were situated was referred to the opinion of the Assistant Superintendent of Land Records. The parties agreed to abide by that report. The revenue officer reported that the Bandharas were part of Kalapetha & not Dundakhairi. As a result, the Sub-Divisional Mag. granted possession of the Bandharas to the deft. & as possession was sought to be obtained in 1938 the present suit was filed by the pltf. for the exclusive possession of the Bandharas.
4. The pltf's. case as summarized by her in para. 4 of the plaint is as follows:
The pltf. being the proprietor of the village Dundakhairi of which the 'Bandhara' in suit is a part the deft. has no right to disturb her possession. The pltf. & her predecessors-in-title have been in possession of the 'Bandhara' site for the last 33 years & the possession has been open, continuous & unobstructed. 'The' deft. or his predecessors-in-title never laid claim to the ''Bandhara'' any time, even at the time of the settlement.
5. The deft. denied that the Bandharas were situated in mouza Dundakhairi or that the pltf. or her predecessors-in-title were ever in possession of these Bandharas. The deft. also denied the income from the Bandharas as well as the assessment & challenged the legality of the assessment. The deft. pleaded that the obstruction came from the pltf. He admitted the report of the Assistant Superintendent of Land Records and stated that the Sub-Divisional Magistrate, Ramtek, had held in the cri. case that the Bandharas were within Kalapetha and in the possession of the deft. According to the deft. the reference to the Assistant Superintendent of Land Records was in the nature of an arbitration and the pltf. was, therefore, estopped from urging the contrary. The deft.'s case as he summarized it was as follows:
It is already denied that the pltf. or her predecessor was ever in possession of the Bandharas or in enjoyment of the income therefrom. In fact, the deft. has been all along in continuous possession of the Bandharas in dispute as the owner thereof as being the malguzar of Mouza Kalapetha and has been enjoying the income.
6. The pltf. filed a re-joinder and averred that no question of ownership could have been raised before the Sub Divisional Magistrate & that the settlement of the dispute was only with regard to the situation of the Bandharas. According to the pltf. the
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