JUDGMENT

1. Second civil Appeals Nos. 360 of 1937 and 374 of 1937 arise out of a suit brought by the Deputy Commissioner of Gonda, as Manager of the Court of Wards in charge of the Ajodhia and Birwa estates, against eight defendants, one of whom has since died. The suit was brought to recover from the defendants a sum of Rs. 176 on the basis of a lease, and it was further prayed that if this lease was not found proved then a decree for Rs. 176 or any other amount might be passed in favour of the plaintiff on account of the possession and enjoyment by the defendants of certain fishing rights for the years 1842 and 1848 Fasli. Four villages through which the river Tehri flows are included in the Ajudhia and Birwa estates. It was alleged that the lease of fishing rights in this river where it flows through these villages had in previous years been given to defendant 1 Thakur, and that for the years 1842-1844 Fasli an agreement had been arrived at between the Special Manager of the Court of Wards and this defendant, providing that certain amounts in respect of each village, totalling Rs. 88 per annum, should be paid by Thakur as in previous years for the fishing rights. It was further alleged that defendant 1 with the other defendants, who are his relations, took fish out of the river where it flows through these villages in the years 1842 and 1843 Fasli but that defendant 1 evaded the execution of a lease. It was on this account that the plaint included the prayer that if the agreement was found to be invalid for want of a lease, a decree might be passed in favour of the plaintiff on the basis of the possession and enjoyment of the defendants. The pleadings gave rise to the' following issues:

1. Did the Special Manager of the Court of Wards, Gonda, lease Out the fisheries in suit to defendant 1, as alleged by the plaintiff?

2. Did the defendants catch the fishes, as alleged? If so the approximate value thereof?

3. Is the suit not maintainable on the regular side?

4. Is the suit not maintainable in the civil Court?

5. Is the suit bad for multifariousness?

6. To what relief and against which defendants is the plaintiff entitled?

2. On the first issue the learned Munsif who tried the suit found that the Special Manager of the Court of Wards had not leased out the fisheries, no lease having been executed and registered. In view of this finding he did not decide issue 2. On issue 3 he held that the suit was maintainable on the regular side, and on the fourth that the civil Courts had jurisdiction. The question covered by issue 5 was whether the Deputy Commissioner was entitled as manager of both the Ajodhia and Birwa estates to sue jointly on their behalf. The Munsif held that he could do so. In view of his finding on issue 1, he dismissed the suit. In first appeal the civil Judge of Gonda found that although no document had been executed, a lease had been given by the special manager to defendant 1, meaning by that that there was an oral agreement between the parties that defendant 1 should have the right to fish as in previous years. The civil Judge also held that the evidence showed that the defendants had been in possession of the fishing rights in the years in suit, that is they had taken fish from the river in those years. As regards the legal objection arising out of the omission to execute and register a lease the civil Judge expressed the opinion that registration would have been required only if there had been a written lease. He observed that an oral settlement could not be bad for want of registration. The civil Judge accordingly allowed the appeal and decreed the plaintiff's suit for Rs. 176, allowing payment to be made in instalments.

3. Two second civil appeals were filed against this decree, the first by the defendants Thakur, Jagannath and Baijnath, and the second by the defendants Lally, Gangai, Santoo and Mahabir. These appeals came before a learned single Judge of this Court who referred them to a Bench as they rais