Judgement

Appeal (A cross-appeal, consolidated with the appeal, was not proceeded with.) (No. 46 of 1930) from a decree of the High Court (July 30, 1926) modifying a decree of the Subordinate Judge of Midnapore (September 28, 1921).

In 1919 the respondent instituted a suit against the appellant claiming by his plaint a declaration of his title to the bed of the river Cossye (also known as the river Kangsabati) between certain points but excluding indicated parts, the whole extending to about twelve miles in length. He also claimed a declaration of his right of fishery therein. His case was that his zamindari included the above portion of the river, which he alleged was not large or navigable. Alternatively, he claimed title by adverse possession for upwards of 60 years. The appellant by his written statement pleaded that the river was a large and navigable river and had not been included in the respondents estate at the settlement; he denied that any title had been acquired by adverse possession.

Both Courts in India found that the river was a large and navigable river.

The trial judge held that a portion of the river bed was part of the plaintiffs zamindari, but that the rest of his claim failed. A decree was made accordingly.

The plaintiff appealed to the High Court and the respondent filed cross-objections.

The High Court (Greaves and Muckerji JJ.) held that the plaintiff had not shown a title to any part of the bed of the river ; it was a large and navigable river, and the property of the Government. The learned judges held, however, that the plaintiff had established by adverse possession an exclusive right of fishery in the portion of the river in dispute, save as to a specified part.

Both parties appealed to the Privy Council, and the appeals were consolidated; but on it being intimated by the Board that the Secretary of States appeal would be dismissed the plaintiff did not proceed with his appeal.

1933. Oct. 26, 27, 30, 31 ; Nov. 2, 3. Dunne K.C. and Wallach for the defendant-appellant.

Upjohn K.C. and Jinnah for the plaintiff-respondent.

The arguments were principally as to the effect of the evidence. In addition to cases mentioned in the judgment of the Judicial Committee reference was made to the following as to the nature of the right claimed, Srinath Roy v. Dinabandhu Sen (( 1914) L. R. 41 I. A. 221.), Hori Das Mai v. Mahomed Jaki (( 1885) I. L. R. 11 C. 484.), also Malcomson v. ODea (( 1862) 10 H. L. C. 593.) ; as to proof of adverse possession Secretary of State for India v. Chelikani Rama Rao (( 1916) L. R. 43 I. A. 192.), Kuthali Moothavar v. Peringati Kunharankutty (( 1921) L. R. 48 I. A. 395.), Nageshwar Roy v. Bengal Coal Co. (( 1930) L. R. 58 I. A. 29.), and Midnapore Zamindary Co. Ld. v. Trailakhya, (( 1923) 40 Cal. L. J. 238.), as to exercise by public of right to fish ; as to "tacking" period of possession by another, Kumar Basanta Roy v. Secretary of State for India (( 1917) L. R, 44 I. A.

104.), Janoki v. Baikuntha. (( 1922) 36 Cal. L. J. 140.)

Nov. 30. The judgment of their Lordships was delivered by

LORD MACMILLAN. The only question which has been argued before their Lordships in these consolidated appeals is whether the High Court of Judicature at Calcutta have rightly decided that Debendra Lal Khan, the plaintiff in the suit, " has right by adverse possession to the fishery " in a portion of the river Cossye. The Secretary of State for India in Council (hereinafter referred to as " the Crown "), who is the defendant in the suit, contests in his appeal the soundness of this decision. Debendra Lal Khan (hereinafter referred to as " the plaintiff"), besides supporting the decision of the High Court in his favour, raises in his appeal certain other issues which have been decided against him. His counsel, however, intimated that in the event of the decision of the High Court with regard to the fishery in question being upheld by their Lordships, the plaintiff did not propose to proceed with his appeal