Ramchandra Wahiwatdar vs Narayan

At the outset, learned senior counsel Mr. Bobde submitted that

dealing with similar facts and contentions, this Court in Tulsi Ram

and others v. Mathurasagar Pan Tatha Krishi and another [(2003) 1

SCC 478] held that there cannot be any customary right of getting

lease or licence of profits-a-prendre of catching fish from a tank

owned by the appellant.

For appreciating the said contention, we would refer to the facts

and findings recorded by the Courts below: -

Plaintiff – appellant filed Regular Civil Suit No.60 of 1998

before the Civil Judge (Jr. Divn.) at Ramtek for a declaration of title

to the tank and for permanent injunction restraining defendants from

interfering with the plaintiff's rights to that tank either by fishing or

otherwise and also for recovery of Rs.2000/- as damages. In that suit,

after recording the evidence, the trial Court arrived at the conclusion:

"that the proprietors used to give a right to catch and carry away fish

from the suit tank under the lease /leases that used to be granted by

them annually. Some of those documents are (i) Waji-bularz for

1894-95 vide Ex.138 (ii) Wazi-bulurz for 1912-13 vide Ex.139 and

(iii) Wazi-bulurz for 1942-43, vide Ex.140. There is however nothing

in these documents to show that the theka or lease used to be given

only to the Dhimars of Parshioni. But, in view of plaint allegations, it

may be taken for granted such theka used to be given to the said

Dhimars. What is, however, important to note in this connection is

that the said documents go to indicate that the act of catching fish in

the suit tank was only permissive and not on account of any

independent right as such as in the Dhimars." The Court also

observed that the dhimars had no right independently of the theka

agreements with the proprietors and it was held that the dhimars

(defendants) had been catching fish in the suit tank not in their own

right of profits-a-prendre but only as licensees or lessees of the

plaintiffs. Finally, the Court held that plaintiffs are absolute owners

of the suit tank and the defendants were restrained from interfering

with the plaintiffs' right over the suit tank either by fishing or

otherwise in future.

Against that judgment and decree, defendants preferred Regular

Civil Appeal No.162 of 1975. The Court after considering various

documentary evidence including the lease deed held that if this

document is given its plain meaning, it would show that dhimars had

got the fishing right under the lease and it was a permissive one. The

Court also held that from the evidence on record and the admission of

one of the defendants, it was clear that rights of the parties were

governed by the contract entered into between them. The Court

thereafter arrived at the conclusion that custom has grown in the

village and it can be taken to be local custom followed by the

lambardar since time immemorial that the lease should be in favour of

the dhimars. The court also held that dhimars have failed to prove

that they have an absolute right to fish and they have been exercising

the right independently in their own paramount right. The Court partly

allowed the appeal and held that the plaintiffs are absolute owners of

the suit tank. However, it was further declared that the defendants

have a customary right to obtain lease or licence to catch and carry

away the fish from the plaintiffs' tank and they have a right to catch

and carry away the fish from the tank by executing Thekapatra. The

Court further directed that if the plaintiffs fail to give the lease or

licence, the defendants can move the Court for a suitable relief by way

of separate proceeding and that right of the dhimars is conditioned by

the fact that they have to pay Theka amount mutually to be agreed

between them and the plaintiffs.

That judgment and order was challenged by the plaintiffs by

filing Second Appeal before the High Court. In that appeal, the Court

arrived at the conclusion that except the fishing rights, the defendants

have no other right or interest in the tank and that the custom of

fishing by the dhimars was in existence prior to 1861 and continued

thereafter, which shows that it is acquired by long user which was

recognised by the community and also by the administration. The

Court thereafter observed thus:—

"… In the year 1920 Central Provinces Land

Revenue Code came into force which describes the

Wajib-u-urj as the village administration paper under

Section 79 of the said Act. In view of the above statutory

provisions it became a settlement record and statutory

presumption and correctness is attached to it. It is

pertinent to note that while it is clear that the landlords

who own agricultural lands were declared as Lambardars

of the said tank for the reason that they were getting

water for irrigation from the said tank while the claim of

the dhimars – fisherman as a customary right to fish from

the tank was not recorded subsequently because of their

low status and illiteracy. In fact, their fishing right

should have been recorded in clear terms, but because of

their illiteracy they could not agitate their cases before

the authorities who had prepared the administrative

records of the said area during that period. Agreement

Exh. 165 gave rise some explanation about the facts

which culminated in the agreement. This agreement

shows the custom in favour of the dependants..."

Finally, the Court held that "the entire evidence, therefore, goes

to show that from the long usage followed between the parties the

practice of giving the fishing rights in respect of the suit tank has

grown since time immemorial to the dhimars only and that they have

got a customary right to obtain lease." The Court observed that the

dhimars – fishermen are having a customary right to catch and carry

fish from the suit tank for which the plaintiffs are bound to grant lease

or licence. Hence, appeal was dismissed.

That order is challenged by filing this appeal.

From the record, it is apparent that there was no justifiable

reason for the High Court to observe that the claim of the dhimars –

fishermen as a customary right to fish from the tank was not recorded

because of their low status and illiteracy.

Further, at the time of admission of this appeal on 21.4.1988,

this Court passed following interim order:

"Till the disposal of the appeal there will be stay.

The rights of the parties during the current year shall be

as determined by the award rendered by the District

Deputy Registrar, Co-operative Societies, Nagpur subject

to the right of the parties to challenge the quantum of the

profits so determined. However, from the ensuing

fishery year and for every succeeding year, i.e. the

seeding season fishery right for each year would be put to

auction by the Sub-Divisional Officer, Ramtek and the

right would be given to the highest bidder. The auction

price so recovered shall be deposited in the High Court.

The High Court will permit the appellants to withdraw

half of the amount on furnishing of Bank Guarantee to

the satisfaction of the trial court. The High Court shall

deposit the remaining amount in a fixed deposit with the

State Bank of India."

As no proper bidder came forward because of short period of

one year for fishery rights, an application was moved seeking

modification of the above order. After calling the report of Sub-

Divisional Officer, this Court vide order dated 11.5.2001 modified the

aforesaid order dated 21st April, 1988 and passed the following order:

"….Our attention has been drawn to the

Government Circular dated 5th July, 1995, which has

categorised the ponds one having the area of 200 hectares

and another more than 201 hectares. According to this, it

recommends five years to be the period for giving of

lease to the Society concerned. This also reveals that it

takes about three years for getting fishing production.

Looking to the aforesaid facts and the report filed by

S.D.O., we feel it appropriate and accordingly direct by

modifying our order dated 21st April, 1988 by increasing

the period from one year to three years. Rest of the

conditions may remain the same…"

At the time of hearing of this matter, learned senior counsel Mr.

Bobde contended that once it is established on record that the

respondents were exercising right to fish on the basis of lease or

licence, the High Court manifestly erred in arriving at the conclusion

that the respondents had acquired a customary right to obtain lease. It

is his contention that once there is a lease, the rights of the parties are

governed by the lease-deed. He also contended that if licence was

granted for fishing from tank, licence can be cancelled at any point of

time. He relied upon the decision rendered by this Court in Tulsi

Ram's case (supra), wherein the Court dealt with similar dispute from

the same area and finally negatived the contention raised by dhimars

of Ramtek. The Court held that as a matter of fact, only a licence to

fish was granted and for grant of such licence, consideration was paid

by the fishermen which was used for the maintenance of tanks for the

sake of owners and not for the sake of fishermen. The tanks were

utilized for cultivating betel leaves which was and is their occupation.

The tanks which were the sole source of water for cultivation for the

betel leaves were maintained by the owners namely a body of barais.

The learned counsel further submitted that order in terms of the said

matter be also passed as the question involved in this matter is the

same.

In that case, the Court has directed that fishing rights be

auctioned and the rights thereof be conferred on dhimars.

In our view, there is no reason to take any other view than what

is held by this Court in Tulsi Ram's case (supra). On this aspect, the

trial court has rightly relied on the documents produced on record

which indicates that the proprietors used to give a right to catch and

carry away fish from the suit tank under the lease/leases that used to

be granted by them annually. Some of the documents referred to by

the trial court are (i) Waji-bularz for 1894-95 vide Ex.138 (ii) Wazi-

bulurz for 1912-13 vide Ex.139 and (iii) Wazi-bulurz for 1942-43

vide Ex.140. From these documents and the averments made in the

plaint, the Court arrived at the conclusion that the dhimars were

having permissive right to catch fish from the tank. Once there is a

permissive right under the lease or licence, it would be difficult to

arrive at the conclusion that the respondents have acquired customary

right to get lease or licence and that is settled by this Court in Raja

Braja Sundar Deb v. Moni Behara and others [1951 SCR 431]

wherein the Court after considering similar contentions held as

under:—

"It is again not possible to hold that the fishermen

residing in these villages are a corporate body and that

being fishermen by profession it has the effect of

incorporating them. We find ourselves unable to

subscribe to the view of the High Court that the

defendants constitute some kind of a unit simply because

they are a body having a common interest to fish in this

fishery; unless the defendants-fishermen form a corporate

body, or it is found that a trust was created for their

benefit, such a body of persons could acquire no right by

the doctrine of lost grant. A right to fish from the fishery

based on mere inhabitancy is capable of an increase

almost indefinite and if the right exists in a body which

might increase in number it would necessarily lead to the

destruction of the subject matter of grant. Moreover,

there could not be a valid grant to a body so incapable of

succession in any reasonable sense of the word, so as to

confer a right upon each succeeding inhabitant.

For the reasons given above, the defendants' right

to remain in possession of the fishery on the basis of a

lost grant or on the basis of prescription or adverse

possession stands negatived. All that appears from the

evidence is that a number of fishermen from time to

time have been exercising the right of fishing with the

leave and licence of some of the owners. This is not

sufficient for the acquisition of the right either by

adverse possession or by prescription. Further, no

finding can be given in their favour as the evidence

does not establish that they have been paying uniformly

the same amount of rent."

The aforesaid judgment is followed by this Court in Tulsi

Ram's case (supra).

In this view of the matter, the appeal is partly allowed. The

judgment and decree passed by the High Court is modified. The

judgment and decree passed by the trial Court is confirmed with a

modification that right to fish in the suit tank would be granted by a

public auction to the dhimars of that area. There shall be no order as

to costs.