RAJA BRAJA SUNDAR DEB versus MONI BEHARA AND OTHERS

Citation: [1951] 1 S.C.R. 431 · Decided: 27-03-1951 · Supreme Court of India · Bench: MEHR CHAND MAHAJAN · Disposal: Case Partly allowed

Judgment (excerpt)

_, 
S.C.R. 
SUPREME COURT REPORTS 
RAJA BRAJA SUNDAR DEB 
ti. 
MONI BEHARA AND OTHERS 
[MEHAR CHAND MAHAJAN, MuKHERJEA and 
CHANDRASEKHARA AIYAR JJ.] 
431 
Fisheries-Fisherm;n of particular villages allowed to fish for 
.several years by zemindar-Acqu1stion of right to fish-Presump-
Jion of lost 
grant-Prescription-Adverse 
possession-Proceedings 
.under s. 145, Cr. P. C., effect of. 
A right exercisable 
by the inhabitants 
of a village from 
time to time is neither attached to any estate in land nor is it 
such a right as is capable of being made the subject of a grant, ' 
there being no ascretainable g(ant~es. 
The doctrine of lost 
grant originated as a technical device 
to enable title to be made hy prescription despite the impossibility 
-of proving immemorial user and since it originated in grant, .its 
-owners, whether original or by devolution, had to be such persons 
as were capable of being the recipients of a grant. 
Where all 
that appeared from the evidence was 
that 
the 
fishermen who were residents of certain villages had been . for a 
long time exercising the right of fishing in certain rivers which 
flowed through a zemindari with the consent 
of some 
of the 
zemindars : Held, that the 
fishermen residing in these 
villages 
cannot be treated as a corporate body or a kind of unit in whose 
favour a 
lost grant could be presumed or who could acquire a 
:right to fish either by adverse possession or by prescription. 
Where, however, there were proceedings under section 145 of 
the Criminal Procedure Code between the zemindars and certain 
:fishermen and the Magistrate found that the fishermen were in 
possession of the disputed fishery and he directed the issue of an 
order declaring their 
possession until ~victed therefrom 
in due 
course of law and forbidding all disturbance 
of 
such possession 
until such eviction, and no steps were taken by the zcmindars to 
set aside the order of the Magistrate within three years as required 
by article 47 of the 
Limitation Act : Held, that so far as the 
fishermen who were parties to the proceedings under section} 45, 
the order of the Magistrate had become final and they were entit-
led to remain in possession of the fishery. 
An exclusive right of fishing in a given place means that no 
other person has a 
co-extensive right with the claimant of the 
righ~ The mere fact that some other person has a right to a 
parncular class of fish in the fishery or that another person 
is 
1951 
March 21; 
1951 
&jaBr41a 
Sumlar Deb 
v. 
Moni Beluzra 
and Others. 
Mahajan]. 
432 
SUPREME COURT REPORT.S 
[1951} 
entitled to fish at a certain, time of the year docs not destroy the 
right of exclusive fishing in any manner 
C1VIL 
APPELLATE 
JuRISDICTION : Civil Appeal No. 42 
of 1948. 
Appeal against the judgment and decree dated the 
21st April, 1943, of the 
High Court of Judicature at 
Patna (Faz! Ali C. J. and S. C. Chatterji J.) in First 
Appeal No. 17 of 1939 arising out of decree dated the 
19th July, 1939, of the Subordinate Judge at Puri in 
Original Suit No. 62 of 1936. 
Manohar Lal (G. P. Das, with him) for the appel-
lant. 
B. N. Das (Sir Kant Mahanti, with him) 
for the 
respondents. 
1951, March 27. The 
Judgment of the Court was 
delivered by 
MAHAJAN J.-The dispute in this appeal is between 
the 
fishermen 
residing 
in 
nine 
villages of Killa 
Marichpur, a permanently 
settled 
zamindari 
in the 
Puri Collectorate (Orissa State) and the Raja of Aul, 
the owner of seven annas, seven pies, and ten karants 
share in 
the zamindari. 
The other 
shares 
in 
the 
zamindari are defendants 19 to 29. 
Within the ambit 
of 
the 
estate flows 
"Devi 
Nadi," 
with its several 
branches and tributaries. Three fisheries "Madhurdia,"· 
"Marichpurdia" and 
"Maladia" 
appertain 
to this 
estate. 
The controversy in this appeal concerns 
die 
fishery known as the "Madhurdia" fishery. 
In the year 1936, three suits, Nos. 62, 63 and 64, 
were brought by the Raja of Aul against defendants 
1 to 18 on behalf of 
themselves 
and other fishermen 
residing in the nine villages of Killa Marichpur for a 
declaration in respect of his rights in the three above 
mentioned fisheries. All these suits were 
decided in 
his favour by the trial court. 
The defendants, preferred 
no appe:il in suits 63 and 64, with the result that the 
controversy regarding the two 
fisheries 
involved in 
these two suits stands concluded by the decision of the 
trial 
court. In suit 
No. 62 of 1936, how

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