P L D 1969 Dacca 363 (PLP)

MAKSUM‑UL‑HAKIM, J.‑This second appeal arises out of Title Suit No. 240 of 1958 of the second Court of Munsif, Jessore wherein the plaintiffs claimed that the suit properties belonged to their predecessors as pertaining to their rayati mokarari jama of Rs. 9 under the Touzi No. 5417. This jama consisting of plots Nos. 621, 656 and 659 was recorded in C. S. khatian No. 296 of Mouja Sanapur of which Plot No. 659 is recorded as a `Beet'. By successive devolution of interest, the plaintiffs have become owners thereof and have been enjoying the same in khas possession on payment of rent to the defendant. Part of this 'Beet' is now under cultivation, and the other part thereof which is in the process of re‑appearing is water‑logged and fishes grow there and are caught for domestic consumption. The suit properties were put to auction by the Government and the sama were purchased by them on 27‑3‑51). Subsequently, however, the Government recognized the plaintiffs as tenants at the original rent of Rs. 9 per year, in view of the fact the plaintiffs and their predecessors had a long standing possession of the suit properties extending to a period of more than 150 years. Since then the plaintiffs have been peacefully possessing the suit proper ties by cultivating a portion thereof and by catching fish from the water‑logged portion. It is, further, claimed by the plaintiffs that fishes grow there naturally and are caught for domestic consumption. Some officers of the defendant threatened the right and possession of the plaintiffs and claimed that the submerged portion of the `Reel' is a fishery within the meaning of the East Pakistan State Acquisition and Tenancy Act and as such the same stood acquired and was liable to be settled by the Government. Hence the plaintiffs filed the suit for a declaration that their possession of the suit properties including the `Beel' is not liable to be interfered with or disturbed by the defendant. This is so because the suit properties have not been acquired and are not liable to be acquired by the defendant Government. The defendant contested the suit relating only to C. S. Plot No. 659 which is claimed to b; a fishery. Fisheries, according to the Government Estates Manual, are classified into two categories, namely `open fisheries' i.e., river fisheries and `closed fisheries' such as Khas, Beels, Tanks, etc. In this case, the disputed `Beet', as contended by the learned Senior Government Pleader, is a closed fishery. The plaintiffs, according to the defence, were rent‑receivers and used to enjoy this plot by leasing it out to different persons on periodical leases. As such it is claimed that the Plot No. 659 stood acquired in favour of the defendant. The trial Court found in favour of the plaintiffs and decreed the suit. The defendant preferred an appeal which, however, was dismissed with costs. As against this, the defendant filed this Second Appeal. The only point raised by the appellant in this appeal is that Plot No. 659, where fishes grow naturally should have been held to be a fishery within the meaning of East Pakistan State Acquisition and Tenancy Act and as such the same stood acquired by the defendant on and from 14‑4‑

56. It is necessary, therefore, to consider whether Plot No. 659 is a fishery or not and whether the same stood acquired by the provincial Government. It is admitted that the Government recognised the raiyati mokarari interest of the plaintiffs in respect of the suit properties after the auction purchase on 27‑3‑50 and accepted rent from them at the former rate of Rs.

9. Exh. 1 series are the dakhilas granted by Government. The defendant Govern ment does not lay any claim in respect of the Plots Nos. 621 and

656. The plaintiffs are, therefore, entitled to the declaration as prayed by them in respect of Plots Nos. 621 and

656. The only dispute is with regard to Plot No. 659 which is recorded in the settlement khatian as a Beel' and has an area of 7.28 acres. The Court of appeal below, after considering the settlement, record, found that the three plots jointly formed one jama and as such part of the jama cannot be held to be created for a fishery and the rest for other purposes. It was further observed by the learned Judge that there was no evidence on record at all that the plaintiffs enjoyed the Plot 659 as a 'jalkar'. Nor did the Government recognize or claim any existence of a' jalkar' in Plot No. 659 at the time of granting dakhilas to the plaintiffs. Exh. 1 series, the dakhils, on the contrary, show that the Government recognised the raiyati mokarari right of the plaintiffs in the suit lands. The settlement record Exh. 2 also supports this. P. W. 1 has deposed that the lands of the 'Beet' are reappear ing for the last 7/8 years. Five or six bighas of land of this 'Beet' are already under cultivation. P. Ws. 2 and 3 have also corroborated this evidence. D. W. 1 who is the only witness for the defendant and who has no personal knowledge of the 'Beel' has deposed that the 'Beet' of Plot No. 659 is a water‑logged fishery. The Court of appeal below has found that the 'Keel' is merely a marshy land as soon as water reeds the land becomes fit for cultivation, and there is no material on record to show that the plaintiffs leased out the water‑logged portion and treated it as a 'jalkar'. As against these findings, the defendant filed the recent S. A. khatian, the compensation assessment‑roll as well as a copy of the proceeding for such assessment as additional evidence in this court to show that the 'Beet' is actually a fishery, though assessment proceeding shows that nothing has been assessed as compensation payable to the plaintiffs for the acquisition of the alleged fishery in Plot No.

659. The plaintiffs' additional evidence in this Court also confirms this fact. The assessment proceeding is dated 20‑6‑60 and the compensation assessment‑roll was prepared thereafter. The roll prepared long after the filing of the suit, at the most, shows that the Govern ment is claiming the `Beet' as a fishery and as such acquirable. It is obvious therefore, that these additional evidences will not be very material in deciding the point involved in this suit which has to be decided on the other materials available on the record. From the above discussion, it will appear that the lands in question are entirely possessed and owned by the plaintiffs. The defendant, however, says that so far as the fishery is concerned, that is to say, the right to catch fish in the water‑logged portion of Plot No. 659, the same stood acquired by them under the provisions of subsection (1) of section 20 of the East Bengal State Acquisition and Tenancy Act. Subsection (2) (a) of section 20 of this Act provides that "Any fishery other than a tank constructed solely by process of excavation" is not included within the category of retainable lands. It is necessary, there fore, to consider the clear connotation of the term 'fishery' and to see whether the 'Beet' in question which is the subject‑matter of the suit comes within the category of fishery as contemplated in the section, The appellants have contended that the history of the origin of a 'Beet' is relevant, and it is said that originally all 'Beets' were parts of a river. Then with the passage of time when the river receded, the low‑lying areas ceased to be connected with the river, but continued to have water in the low‑lying parts. It is contended on behalf of the appellant that even after the severance of the river from the water‑logged areas, the right of fish in continued to exist with the Government. We are unable to accept this contention. Historical origin of 'Beets' may be so as has been contended by the appellant, but once these 'Beets' have cased to be parts of rivers, the right of fishing in these 'Beets' comes to be vested with the owners of the soil underneath. This is clearly supported by the observation of the Privy Council in the case of Rani Provabati v. Secretary of the State (A I R 1946 P C 92) at page 93 their Lordships observed. "In order that the fishing s in any waters may be claimed as an adjunct of a river fishery these waters must be in continuous connection with the river throughout the year in the dry season as well as in the wet season. Waters which ceased to be continuously connected with the river cease water which ceased to be continuously connected with the river cease to be adjunct of it and the fishing s in such disconnected waters cease to be a part of river fishery, and pass to owners of solum." The question now arises is, whether this state of legal position has been altered by the provisions as mentioned in section 20 of the East Bengal State Acquisition and Tenancy Act. The word 'fishery' in its ordinary sense means the business, occupation or industry of catching fish (see The Oxford English Dictionary, Vol. IV). The term 'fishery' is not defined in the East Bengal State Acquisition and Tenancy Act. In common parlance, the term 'fishery' clearly means the business of catching fish and the right connected therewith. In this Province during rainy season when vast areas are submerged fishes may be available and caught from almost anywhere in such areas. But that does not render such areas fisheries, and no fishery right becomes attached there to. Due to the peculiar geographical phenomena prevailing in the riverine part of this Province, a considerable part of the Province remains submerged for several months of the year. During this time, fishes may be available and may also be caught in these submerged areas. It cannot be said that these areas vest in the Government as fisheries as long as they remain under water and revert to the owners thereof as soon as the water recedes. That could not have been the intention of the Legislature in enacting the provisions of section 20 of the East Bengal State Acquisition and Tenancy Act. Land tenure in this Province cannot be subject to such quick and short lived fluctuations. It is obvious, therefore, that a fishery which is contemplated to be acquired under section 20 of the East Bengal State Acquisition and Tenancy Act must have more or less a continuous existence. Judging from this standpoint, a fishery will be a right to catch fish in any water of a more or less permanent nature, where fish is capable of being reared and caught throughout the year as an occupation, business or industry. Casual availability of fish in such areas will not render them fishery. In other words, in order to constitute a closed fishery, the land concerned must contain so much water throughout the year as is sufficient for enabling rearing and catching of fish therein and, that too, fn pursuit of fishing as a trade, business, occupation or industry. As a corollary, it follows that the purpose of the lease and the nature of the tenancy right recognised and treated by the lessee and the manner in which the land is being used or capable of being used are all important factors to be considered 9n determining whether a land does or does not constitute a fishery. If the purpose of the lease is not one for fishing exclusively, or if the land grows or is capable of growing crops or if the owner of the land is being usually recognised and treated by the successive landlords including the Government as a raiyat, then, the inference would be that the land concerned is not a fishery. Each case, however, will have to be considered on its own facts and circumstances in the light of the above factors. It appears from the evidence on record that the `Beel' in question was never leased out as 'Jalkar' and was not managed for the purpose of a business of rearing and catching of fish. On the contrary the plaintiffs were recognised and treated as raiyats in respect of the jama which includes the 'Beef. As such, the 'Beel' can not be termed as a fishery within the meaning of section 20 of the East Bengal State Acquisition and Tenancy Act. There is another aspect of the matter. It is well known that in certain circumstances, the fishery right, that is to say, the right to catch fish in the water may be separately owned from the ownership of the subjacent soil. Still in ordinary normal circumstances, In the absence of special stipulation, the owner ship in the watery portion as well as In the subjacent soil should be presumed to be located in one and the same person. A right of the Government in a 'Jalkar' was in effect derived from its right to the land in question. Grith, C. J. with whom Miller and Tottenham, JJ, concurred in the case of Heardas Mal v. Mohammad Zaki (I L R 11 Cal. 434) held that the Crown had power of making settlement of grants, for the purpose of revenue of all unsettled and unappropriated lands and further observed: ‑ "there was no good reason why crown should not have the power of making settlements of 'Jalkar' rights and of lands covered by water as of lands not covered by water." In the case of Sheeb Kristo Banarjee v. East India Co. (6 M I A 207) it was held that the East India Co., as representing the Government was to have a freehold in the beds of nevigable river and in the lands nevigable river in the lands between high and low water marks. In the case of Ayub Ali v. Daya Bibi (12 C W N 105) it was held that as the bad of navigable river vested in the crown, the Government had the right to lease fishery right therein. In the case of Ram Gopal v. Nurur Muddin (I L R 30 Cal. 416) it was held that the right of fishery is a benefit arising out of land covered with water. In Corpus Juris Secondum Vol. 36, p. 829 it is said "As a right of property a fishery is real and not personal property, it is a part of the soil and not an entity having an independent existence and as far as it is exercised on another's land, it is a profit a 'prendre'. Hence it cannot be claimed by way of easement, and a person fishing by way of common right can be in. no sense the owner of fishery." In Halsbury's Laws of England (Third Edition), Vol. 17 at p. 297, para 505, it is stated under the heading `Corporeal and incorporeal fisheries'. "The general principle is that fisheries in their nature are mere profits of the soil over which the water flows, and the title to fishery arises from the right to the soil. A fishery may be served from the soil and it then becomes a profit a 'prendre in alieno solo' and an incorporal hereditament." From all these, it will appear that when a plot of land is settled or recognised to be settled with a citizen wherein no reservation was made with regard to the user of land exclusively for fishing, then, it is to be presumed that the entire property along with the right of fishing therein has been transferred or recognised to be transferred to the citizen. It is obvious, there fore, that when the Government recognised the plaintiffs as raiyats in respect of C. S. Plot No. 659, they were recognised as the full owners of the said plot. It cannot now be said that the recognition is not valid so far as the right of fishing is concerned. From this stand point also, the Government is not entitled to claim a right of fishery or a fishing right in the 'Beel' in question. On a consideration of the oral evidences also, we are of opinion that there is ample basis for the finding of the lower appellate Court that the 'Beel' in question is now only a marshy land and becomes fit for cultivation as the water recedes and as such the same cannot be treated as a fishery liable to be acquired. In the above facts and circumstances, I am of opinion that the only point raised by the appellants in this case is without substance and as such the appeal fails. In the result, the appeal is dismissed with costs. M. R. KHAN, J.‑I agree. Appeal dismissed.