TULSI RAM AND ORS. versus MATHURA SAGAR PAN TATHA KRISHI AND ANR .

Citation: [2002] SUPP. 4 S.C.R. 104 · Decided: 12-11-2002 · Supreme Court of India · Bench: U.C. BANERJEE · Disposal: Disposed off

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Judgment (excerpt)

A 
B 
TULSI RAM AND ORS. 
v. 
MATHURA SAGAR PAN TATHA KRISHI AND ANR . 
. NOVEMBER 12, 2002 
:; ... 
[UMESH C. BANERJEE AND Y.K. SABHARWAL, JJ.] 
Doctrine of 'lost grant'- Presumption ofin favour of an indefinite body 
of persons and members of a particular community-Owners of a tank allowing 
C !'Jer of their tank to a community for fishery .under an agreement a century 
ago on payment for maintenance of tank-Owners seeking injunction against 
user of tank-Other party claiming right by reason. of grant-Held: It cannot 
claim lost grant since what was granted to it was only license to fish-Land 
laws. 
D 
Barais community, owners of tanks in a village used to draw water 
for irrigation of betel leaves plantations and appellants-Dhimars, a fishing 
community used to catch fish from the said tanks. For maintanence of 
tanks and water therein, Barais community and appellants-Dhimars 
entered into an arrangement under a document 'Wajib-ul-arz' which 
prevailed last between the parties in 1942-43. In 1951, Madhya Pradesh 
E Abolition of Proprietary Rights Act came into force and the tanks in 
dispute were treated as ownership of Barais. Later on Barais filed 
injunction suit restraining appellants from catching fish in the said tanks. 
Appellants contended that the fishing activities were within their right in 
terms of the grant. Both trial Court and First Appellate Court upheld 
F their right. High Court negatived the rights of appellants since the lost 
grant of such kind could not be presumed to be existing. Hence the present 
appeals. 
Appellants-Dhimars contended that Wajib-ul-arz is a record of rights 
which recognizes the right of appellants not as a licensee but as a definite 
G and ascertained body of persons having irrevocable hereditary right from 
generation to generation absolutely and the effect of such documentary 
evidence cannot be wiped out or be rendered nullity without a declaration 
to that effect by civil court; that appellants cannot be deprived of their 
right as ffaqdars; that the right is based on custom from time 
H 
104 
,• 
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TULSI RAM v. MATHURA SAGAR PANTATHAKRISHI 
105 
immemorial and as such question of interference by High Court in second A 
appeal would not arise; that the right existed not in an unascertained body 
but a class determinate; and by reason of the uninterrupted user of the 
tank, Barai obtaining the benefit of cash payment in lieu of half the catch 
and this cash benefit used to be spent for the development and maintenance 
of tanks rather than individual enjoyment therefrom, a right stands B 
conferred on to appellants as a customary right and thus enforceable. 
Respondents contended that a body of persons, which is 
indeterminate and fluduating can neither be the recipients of a grant nor 
claim a customary right to enter upon and take away profit-a-prendere· 
alieno solo; and that the alleged grant was never in favour of individuals. C 
Disposing of the appeals, the Court 
HELD: I.I. If a right cannot be conferred, no grant can be presumed 
in favour of an indefinite body of persons and members of a particular 
community though of a village in such a body of persons. [113-B] 
D 
1.2. If the Wazib-ul-arz of 1942-43 is construed as showing a grant 
having been in favour of the individuals, it is plain that it was not in favour 
of their families, heirs or descend~nts in perpetuity, and must, therefore, 
expire with the expiry of individuals. If it is construed as a grant in favour 
of, or custon1 enuring to the benefit of families, heirs, descendants and all 
manner of successors or assigns, the body of persons again becomes 
fluctuating and thus renders the same incapable of legal recognition of 
the grant or claiming a customary right. The exercise of right destroys 
the subject matter is clear from the submission that the appellants put in 
seeds of fishes. Obviously, the fish are caught and consumed or sold for 
gain. The fishery gets exhausted. Then it is replenished with fresh seeds 
to have a new lot of fishes. It is as though some people claimed the right 
to come upon another's land, sow and reap crops repeatedly for eternity. 
E 
F 
It would leave the owner with merely the husk of ownership while it would 
really virtually vest in those who,,claim such an absurd right, not as 
permissible user or activity but as of right, and in the bargaining process, G 
even have the Barais community maintain the tanks for the appellant-
Dhimars. As a matter of fact only a lic

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