P L D 1958 Dacca 53 (PLP)

The facts of this case are very simple. It is admitted that the suit land belonged to the Bhaduri landlords. It is also admitted that the said landlords granted fishery rights over the suit land to the defendants in Jaishtha, 1347, B. S., and this grant of fishery right was to run up to tile end of Chaitra, 1350 B. S. It is also admitted that subsequently in 1349 B. S., tile landlords settled the suit land with tile plaintiffs. There is also unchallenged evidence that in 1350 B. S., the landlords renewed the lease of tile fishery right in favour of the defendants. The defendants contend that the plaintiff' right is subject to fishery right granted to them, whereas the plaintiffs claimed that they had no right, as alleged by the defendants. The only question that has been canvassed before me by the learned Advocates appearing for the appellants as well as for respondents Nos. 1 (a), 3 and 4 is whether the fishery right granted to the defendants still subsists or whether that right is extinguished by the grant of the land to the plaintiffs by the landlords. The learned Munsif in deciding this point has observed as follows:‑ "In other words, plaintiff's settlement is, later than the settlement of defendants. So, it should be understood that the landlords did not settle the fishery right because they already settled the same to defendants. Besides, when landlords already settled the fishery right, they had no right to again settle the same right to plaintiffs. Plaintiffs' pattani Likhan does not mention of any fishery right. None of the pattandars came and say that he got the fishery right also. There is no evidence that defendants tried to dispossess plaintiffs from the cultivable lands which are admittedly in possession, of the plaintiffs. Thus plaintiffs' title is admittedly enjoyed by the defendants. I, therefore, hold that both the plaintiffs' and defendants' documents are genuine. Plaintiffs have title to the land while defendants have right to the fishery". The learned Subordinate Judge, in modifying the judgment and decree passed by the learned Munsif, has observed as follows:‑ "There is no evidence on record, none of the landlords being examined in favour of tile defendants, to assert that the lease created in favour of the plaintiffs was subject to reservation of the fishery right in the hands of the landlords. Accordingly, I am inclined to hold that the lease created in favour of the plaintiffs carried with it, in the absence of any clear express reservation, that of fishery as well in favour of the plaintiffs". The learned Subordinate judge, therefore, held that the defendants had no right, whatsoever, as claimed by them. Mr. Khan appearing on behalf of the appellants has urged that the learned Subordinate judge has misdirected himself on the evidence in this case and has wrongly applied the law to the facts of this case. He has submitted that the learned Subordinate Judge has relied on the decision in the case of rlaigobinda Singh v. Bhaivani Singni (I L R 9 Pat. 401) and also on another decision in the case of Sat‑at Chandra Singh v. Kshitish Chandra Roy (12 C L J 216). Mr. Khan has contended that the propositions of law laid down in the aforesaid decisions are correct and well‑settled. He has urged that the learned Subordinate Judge has misapplied the law to the facts of this case. Mr. Khan has pointed that the landlords had granted the above lease of fishery right in 1347 B. S., and, during tile subsistence of the lease granted to the defendants, the said landlords in 1349 B. S. settled the land with the plaintiffs. It will be noticed that the landlords again, on the expiry of the terms of the first lease granted to the defendants, renewed the same. The learned Advocate has contended that, from the aforesaid circumstances, the inference is irresistible that the landlords had, in fact, reserved to themselves the right of granting fishery right apart from granting lease of the land. Mr. Das appearing for respondents Nos. 1 (a), 3 and 4 has‑contended that the landlords having granted a lease of the land to the plaintiffs, could not subsequently renew a lease of jalkar (i.e., fishery) right in respect of the identical land to the defendants. In support of his contention, lie has cited a decision in the case of Henry Hill of Co., and another v. Sheorai Rai and others (A I R 1922 Pat. 9). On a perusal of the cases cited above, it seems clear that the law on the subject is well‑settled and it is as follows:‑(1) that if a landlord grants a lease of a land to, somebody, he cannot claim the right of granting any fishery right in any portion of the land, which may be under water, in the absence of all express reservation to that effect; and (2) that the landlord, if he chooses to do so, may grant a lease of the fishery right in respect of a land which may be under water to one person and may give 'a lease of, the land itself to another. In the case of Jaigobind Singh v. Bhawani Singh, Chatterji, J., delivering judgment of the Court, has observed at page 404 of the report as follows:‑ "The crucial question in the case is whether the learned Subordinate Judge was correct in the expression of his view that it is for the plaintiff to prove the reservation of the right to the fishery. The case of the plaintiff, as I have. already stated, is that there was settlement of the bed of the river. It has been laid down in Hill & Company v. Sheoraj Rai that a proprietor can lease out a fishery without giving any right to the soil or the bed upon which the water lies and he can then let out the land subject to the right of the lessees of the fishery. Their Lordships then make the following observation. 'If, on the other hand, he lets out the land first, he cannot claim the right to the water and fish that come upon the land afterwards' .. . . . . ." In the case of Henry Hill & Co., and another v. Sheoraj Rai and others, their Lordships observed at page 11 of the report as follows:‑ "I think this is the law in India also. A proprietor call lease out a fishery without giving any right to the soil or the bed upon which the water lies and he can then let out the land subject to the rights of the lessee of the fishery. If, on the other hand, he lets out the land first he cannot claim the right to the water and fish that come upon the land afterwards". It may be noticed that, in the case of Jaigobind Singh v. Bhawani Singh, their Lordships of the Patna High Court were quoting with approval the aforesaid observation made in the judgment passed in the case of Henry Hill & Co., and another v. Sheoraj Chandra Rai and others. The law on this subject, as indicated above, is well‑settled and the learned Advocates appearing for the appellants as well as respondents Nos. 1(a), 3 and 4 do not dispute it. The question is: Is the learned Subordinate judge right in saying that there is no evidence to show that the landlords had reserved to themselves the right of granting fishery right to somebody apart from the granting of the lease of the land itself? In the case before me, the evidence, documentary as well as oral, fully establishes that, in fact, the Bhaduri landlords had granted the lease of fishery right in the suit land to the defendants and subsequently granted lease of the land to the plaintiffs. There is also the evidence to the effect that the lease in respect of the fishery right granted to the defendants was renewed. From the facts and circumstances of this case, it is clearly and fully established by necessary implication that the Bhaduri landlords had reserved the fishery right in the disputed land to themselves and that they granted lease of the land itself to the plaintiffs subject to such reservation. In these circumstances, I hold that the contention of the learned Advocate for the appellants must be upheld. For the reasons stated, I allow this appeal and set aside the judgment and decree passed by the learned Sub ordinate judge and those passed by the learned Munsif are affirmed I, however, make no order as to costs in this appeal. Z. A. S. Appeal allowed.