P L D 1964 Dacca 744 (PLP)

On the pleadings of the parties five issues were framed by the learned Munsif of Sylhet who tried the suit. It appears that a Pleader Commissioner was appointed in respect of the suit and the trial Court recorded a finding to the effect that the aforesaid channels were natural channels and not artificial ones, in the sense that they were brought into existence by 'the predecessor‑in‑interest of the land in question. Having held that the said channels were natural channels, the learned Munsif proceeded to consider the provisions of section 41, sub section (1) of the Forest Act, and on a construction of the afore said provisions, he came to the conclusion that the proprietorship of the said channels statutorily vested in the Province of East Pakistan, although he was of the opinion that the beds of the channels belonged to the plaintiffs. Accordingly, he dismissed the suit. Against the judgment and decree pronounced by the learned Munsif plaintiffs preferred an appeal which was heard and dis posed of by a Subordinate Judge of Sylhet. The learned Sub ordinate Judge affirmed the decree passed by the learned Munsif and dismissed the appeal. Hence this second appeal. At the hearing of the appeal we were taken through the judgments pronounced by both the Courts below. It was argued on behalf of the plaintiff‑appellants that the judgments pronounced by the Courts below could not be sustained inasmuch as both the said Courts misdirected themselves on the effect of the provisions of section 41, subsection (1) of the Forest Act. Various other criticisms were directed against the aforesaid judgments and we need not deal with all of them. It seems to us that the Courts below have unnecessarily embarked upon a protracted enquiry as to whether the aforesaid channels are natural or artificial. So far as the proprietorship of the channels is concerned, it vests in the owner of the lands through which it passes even if they are natural channels. The test of ownership in this respect is, whether the water courses or channels are navigable or not. Beds of navigable rivers and channels belong to the State, and in this case, to the Province of East Pakistan. But such channels or water courses constitute a property of the proprietors of the lands through which they pass if they are not navigable, even if they are natural as opposed to their being constructed artificially by human hands. Therefore, the proprietorship of the channels themselves would, prima facie, vest in the proprietors of the lands through which the channel pass, namely, the plaintiffs in this case, unless it is established that the same are public ways by such user from time immemorial or unless it is established that in this particular case it is not so. The next question is, whether the Province of East Pakistan or the other defendants have been able to establish a right of user in respect of the channels by way of transmitting timbers and logs over the same. Such a right may be acquired either as a prescrip tive right of easement or by some other , relationship, contractual or otherwise. The Courts below, however, have seriously misdirected themselves on the interpretation of the provisions of section 41, subsection (1) of the Forest Act which runs as follows: "41. (1) The control of all rivers and their banks as regards the floating of timber, as well as the control of all timber and other forest‑produce in transit by land or water, is vested in the Provincial Government and it may make rules to regulate the transit of all timber and other forest‑produce." On a construction of the aforesaid provisions, the learned Munsif makes the following observations: "It is clear that the control of rivers and their banks as regards floating of timber and other forest products is vested in Government and no private party has got any right to restrain the Government or any body claiming under the Government from using any .river for the purpose of floating and passing Forest products. It has been frankly conceded by the learned pleader for the plaintiffs that if the disputed channels are rivers within the meaning of the Forest Act, the plaintiffs have no case. I have already come to my finding of fact and have given my legal opinion that the disputed channels are rivers. The plaintiffs have no case and there is absolutely no merit in the plaintiffs' suit." In so far as the learned Munsif has interpreted the expression, "river", we are of opinion that he is right, having regard to the definition of the said word in the Forest Act. In section 2, subsection (5) of the Forest Act "river" is defined thus. " `river' includes any stream, canal, creek or other channels, natural or artificial." It is thus clear that even if a channel has been artificially constructed, it would be deemed to be a river within the meaning of the Forest Act. However, the important thing to remember is that even if the channel is considered to be a river, neither its proprietorship not a right to its user necessarily vests in the Government under the terms of the Forest Act, as the learned Munsif has mistakenly held. The provisions of subsection (1) of section 41 of the Forest Act, quoted above, confer a right upon the Provincial Government "to control" the floating of timber and other forest‑products in transit by land or water, and it further empowers the said Government to make rules to regulate their transit. This right to control does not connote a right of user and the aforesaid provisions do not also vest the proprietorship of the channels in the Government. The sort of control, as contemplated by the said section, is something in the nature of, say, regulation of traffic on the road. Since the Courts below have not decided the issues raised by the parties, because they have taken the view that by virtue of the aforesaid provisions of the Forest Act, the right of user in respect of the channels vests in the Government, we hold that it has been rightly contended that plaintiffs' suit has not been properly disposed of by the Courts below. In fact, the Courts below did not also decide the other issues that had arisen in the suit; they have decided one issue and that, as we have seen above, erroneously. In these circumstances, we allow this appeal and set aside the judgments and decrees passed by both the Courts below. It is directed that the suit be sent back on remand to the trial Court for retrial and disposal in accordance with law and in consonance with the observations made in this judgment. In view of the peculiar facts and circumstances of the case and the course that it had taken during its trial, we think that the parties should be allowed to amend their pleadings with a view to make them more intelligible, so that their cases may be clearly understood. We therefore, direct that the plaintiffs as well as the defendants should be allowed to amend, on appropriate terms, their respective plaint and written statements in this behalf. The most important issue in this suit is, whether even if the proprietorship of the channels vests in the plaintiffs, the defendants have succeeded in establish ing a right of using them by transmitting timber and logs across the said channels? Learned Advocate appearing for defendant respondents Nos. 2 and 3 has asked us to give the parties liberty to adduce fresh evidence. At the trial learned Munsif should do well to allow the parties to lead fresh evidence, if so wanted. The suit should be re‑tried on all issues except the issue whether the channels are natural. The decision in this respect has become final. The costs of this appeal will abide the result. Let the records of this case be sent down to the trial Court with the utmost expedition S. CHOUDHURY, J.‑I agree. S, Q. Case remanded for retrial.