Authored By : L.H. Jenkins, Richard Harington, Mookerjee

L.H. Jenkins, C.J.

1. The subject-matter of this litigation is a jalkar orright of fishery in certain bhsels named in the plaint as Khans Rajghat,Darhihal, Dagar, Ghormora, Burhia, Bhoorang, Khirkiria, Chaprela, Perdhania andSinghia. It is the Plaintiffs case that these bheels are situated in MouzahKakarghat, Khizirpore, Imamnagore, and Harinkola, all in Tuppa Madhuban.

2. The Plaintiffs 1 to 33 together own Tuppa Madhuban, whilePlaintiff 36 is its mustagir or lessee.

3. On the strength of this proprietorship the Plaintiffsclaim to be exclusively entitled to the fishery right in these bheels whichare, so far as they are the subject-matter of this suit, wholly within TuppaMadhuban.

4. The first three Defendants claim to be entitled to thisfishery as the grantees under the Government of jalkar Maksudpur. Defendant No.4 is their lessee. They also claim to be entitled on the strength of longenjoyment. The Plaintiffs allege dispossession from the beginning of May 1892to July 1894, and by their plaint in this suit, they pray for judgment asfollows:

(1) That it may be held by the Court that jalkats KhanaRajghat, Darhihal, Dagar, Ghormora, Burhia, Bhoorang, Khirkiria, Dakhli Burhia,Bhoorang, Chaprela, Perdhania, and Singhia, together with branches and Dhars,and all other sotas, Dobs, Khatas, Cheri, Bhata and Jamta, being part of TuppaMadhuban, are the Milkiat of the Plaintiffs; and that the Plaintiffs and formerproprietors of Tuppa Madhuban have for a long time, that is over 12 years, beenin possession as proprietors and holding adverse possession of all theaforesaid jalkars together with other jalears state within Tuppa Madhuban, andwith Halka of the aforesaid Tuppa, by means of Khas Tashil and through mustagirs,Dermustajirs.

(2) That it may be held by the Court that the Defendants 1stand 2nd party neither had, nor have any right whatever to the jalkars indispute or any of them situate within Tuppa Madhuban, nor were they ever inpossession of the jalkars in dispute or any of these before the accrual of thecause of action in this suit, and that they had and have no right in respect ofany of the jalkars aforesaid.

(3) That a decree may be passed by the Court in favour ofthe Plaintiffs awarding them possession over the jalkars in dispute aforesaidas proprietors and Mustajirs thereof by dispossessing the Defendants 1st and2nd party and permanent injunction may be issued against the Defendants withthese directions that the Defendants 1st and 2nd party or any of them shouldnot interfere with the right of fishing of the proprietors or the Mustajirs thePlaintiffs: and that they should abstain from fishing in or exercising anypower tantamount to possession of the jalkars in dispute, and that wasilat ofthe estate from the year 1308 to date of recovery of possession may be awardedto Plaintiffs, and that amount of the same may be ascertained in theexecution-of-decree-department.

5. The suit was heard by the Additional Subordinate Judge atBhagal pore who dismissed it with costs. The Plaintiffs preferred an appeal tothe High Court which was heard by Doss, J., and Richardson, J. They weredivided in opinion, Doss, J., being for reversing, and Richardson, J., foraffirming, the decree of the Subordinate Judge. The decree accordingly wasconfirmed, and the present appeal has been preferred under cl. 15 of theLetters Patent.

6. It is common ground that the bheels in suit lie withinthe limits of Tuppa Madhuban, and that the Plaintiffs together are entitled to thatTuppa; they claim to be equally entitled to all fishery-rights over the bheelswithin its limits.

7. The Defendants rest their claim on their ownership of thefishery known as jalkar Muksud pore in which, they maintain, are included thebheels now in suit.

8. The original grant on which this ownership of the jalkarrests is not produced, but it is said, though not proved, to have been made asfar back as the 17th century. As evidence of this grant reliance has beenplaced on certain documents and on long user.

[His Lordship discussed these documents and held as follows:]

9. That there was a grant of jalkar Muksud pore is, I think,clearly established : The question is what passed to the grantees and what isnow vested in the Defendants who claim under them. The grant certainly passed aright to fish in the River Ganges from Mayagunge eastwards : this indeed is notdisputed. For the Defendants it is contended that the jalkar extends eastwardsas far as a place called Peerpainti, a distance of 40 miles or so in all. Forthe Plaintiffs it has been contended before us, though somewhat faintly, thatthe fishery terminated at a point short of this. It would seem from thejudgment of Richardson, J., that no dispute was raised as to this easternboundary by the Plaintiffs when the appeal was before him and Doss, J. Buthowever that may be, I am satisfied that the Defendants contention iswell-founded, and that Peerpainti is the easternmost limit of the fishery. Inthis part of the Ganges there are three distinct jalkars running from west toeast. The first runs from Ruhooknullah in Monghyr to Mayagunge in Bhagal pore,and is known as jalkar Gungaputtee, the 2nd named jalkar Muksud pore runs fromMayagunge to Peerpainti and the 3rd from Peerpainti to Soonti (see Exs. Z andK). This bears out the Defendants contention which, in my opinion, is notnegatived by the 4th answer in the Kanungoes report of 1799 (Ext. 2).

10. The Defendants view has been accepted by all threeJudges before whom the case has already come, and without further labouring thepoint I hold that jalkar Muksud pore runs eastward as far as Peerpainti.

11. Treating the river as flowing from west to east the nextproblem is to ascertain its northern and southern boundaries. One wouldordinarily say that these boundaries are its northern and southern banks, and,for what it may be worth, this is the indication furnished by the Kanungoesreport (Ext. 2.).

12. It would have been more satisfactory had there beenevidence of the position of the northern boundary but there is none beyond suchas would justify us in holding that it must be somewhere to the north of thedry weather stream of the Ganges.

13. So far the case is fairly simple; the real difficulty isas to whether the jalkars in suit lie between the two banks of the river or, inother words, in the bed of the river. This is substantially a question of factand it will be a help towards its solution to have a menial picture of theriver as it flows eastwards from Bhagal pore to Peerpainti.

14. It possibly is, because the Court, the pleaders and thewitnesses at Bhagal pore were dealing with matters and scenes familiar to themand illustrated probably by conditions within actual view of the Court house,that the evidence as recorded may appear to be lacking in clearness, for much,doubtless, was taken for granted that is not obvious to those unacquainted withthe locality. From Bhagal pore the main stream of the Ganges flows in asoutheasterly direction towards Colgong where it is diverted northwards for afew miles. It then takes a bend towards the east and so reaches theneighbourhood of Peerpainti. This is very clearly shown by the maps in thecase.

15. The bheels now in dispute lie to the south-west ofPeerpainti and are in no sense a part of the present dry weather stream of theGanges, but are at a distance of some miles from it. But when the annual rainsare established this dry weather stream extends on its southern side as far asthat which the Defendants describe as the southern high bank of the Ganges,thus covering the bheels in suit which lie to the north of the bank.

16. It is contended for the Defendants that this bank is intruth the southern bank of the river Ganges, and that what lies to the north ofit, including the bheels, is a part of the river-bed. As supporting the viewthat this is the sourtheru high bank of the river the Defendants point to isposition and configuration, to is height in relation to the wide level stretchof low lying land to its north, to the contrast between the soil and growth onit and on the land to the north, and to the apparent marks of towing cords towhich the Commissioners Report refers. Insisting then that this still is thepermanent south bank of the Ganges, the Defendants maintain that these bheelslie in the bed of the river and so are included in their falkar grant.

17. The Plaintiffs hotly contest this: they argued that thiswide tract of land cannot be regarded as the bed of the river Ginges and thisargument they seek to support by the fact that its width is 10 miles or more,that there are inhabited villages on it, that when the waters recede the soilis cultivated and bears crops, and that the land has actually been settled bythe Government.

18. These, no doubt, are matters to be taken intoconsideration and duly weighed but their proper significance cannot be realisedunless the character of the river in this part of its course be kept in mind.

19. To change from a stream, a mile or so in width, to anexpanse of water to miles across is remarkable, but it is nothing unusual inthis part of the river Ganges : it is of regular annual occurrence. Nor is theincrease in volume so transient as to be negligible for the purpose ofconsidering whether the flood stream is a part of the river : it lasts eachyear for a couple of months and notwithstanding its expanse there is a currentin it from west to east, though naturally not a strong one.

20. This increased volume of water, extending as far as thesou hern high bank, is not an inundation, it is the normal flood stream of theGanges and an integral part of the river. Much has been made of the presence ofvillages on this tract of land but this does not show that it is not the bed ofthe river. The character of the structures which go to make up the village mustbe borne in mind. And that there is nothing impossible involved in the idea ofa village in the bed of the river is shown by the fact that at Bhagal pore,within sight, we are told, of the Courthouse, the village of Shankar porestands in the bed of the Ganges, (see witness No. 4 for the Plaintiff) nor canI regard the cultivation of winter crops as in any way conclusive against theDefendants. Here too regard must be had to all the circumstances. The siltbrought down by the Ganges and deposited on this area in the rains forms a soilof high fertility and the opportunity of cultivating it is eagerly sought.Hunter in his Statistical Account of the Bhagal pore District speaks of a castecalled Gungauntas whom he describes as numerous and as being fishermen whocultivate the islands and banks newly formed in the bed of the Ganges (Vol.XIV, p. 76) It is only for a portion of the year that the tract is culturable,and only crops suited to such cultivation that can be grown. There is nopermanency, it merely happens that the soil carried in suspension by the floodstream and deposited on this tract is capable of this immediate limited userendering intermittent and periodic cultivation of the land possible.

21. It is pressed on us that the settlement by theGovernment of this tract is inconsistent with its being a river-bed. But I failto see that. The peculiar properties of the deposited silt permit ofcultivation and the mere fact that for a brief period in every year, the land canbe used for purposes which make set lemon: practicable cannot prevent the landbeing a part of the bed of the river. This then is how matters stand: thoughthe dry weather stream is at a considerable distance from the bheels, yet theflood stream of the rains covers them extending even beyond them right up tothat which is the southern permanent bank of the Ganges and in the sense thatit still serves to contain the river on the south in its greatest normal flow.So far I have dealt principally with the physical aspect of things, but beyondthat there is much that supports the view that this bank is the riverssouthern bank and that the depression to the north is still the river-bed.

[His Lordship after discussing the evidence on this pointproceeded as follows :]

22. Their (the Defendants) right is by virtue of theirjalkar in the Ganges. But these bheels are not permanently connected with thedry weather stream of the Ganges, but only with its flood stream, as are thebheels in suit.

23. I need not refer in detail to all the bheels as to whichthis class of evidence has been given; it will suffice for me to mention threejilkars, Darhial, Digraha, and Deori. All three are connected with one or otherof the jilkars in suit, they are all three circumstanced precisely as are thosein suit, the Defendants enjoyment of these three jalkars is undisputed, andthe Defendants right to them can only rest, as does their right to those insuit, on their being in the bed of the river Ganges.

24. Finally, the Defendants have in my opinions is factorialproved their long possession of the jalkars in suit. No doubt at one time thesebheels were permanently connected with the main stream of the Ganges, and solong as that was so their jalkar rights over them could not be questioned Butit is the Plaintiffs case that this connection was closed up about 25 yearsprior to 1904 (plaint, para. 12), and so it becomes important to ascertain whosince that date have enjoyed the jalkar rights. The Plaintiffs and the Defendantseach claim that possession has been with them. To prove their rival claims eachside has adduced both oral and documentary evidence.

[His Lordship discussed this evidence and then went on asfollows :]

25. The conclusion to which I come is that the Defendantsare entitled to jalkar Muksud pore, that this jalkar extends from Mayagunge toPeerpainti, and that the bheels in suit are in the bed of the Ganges betweenthose two points. As the case was placed before us prior to reply, thesefindings would have been conclusive in the Defendants favour, for it appearedto be conceded on behalf of the Appellants that if the Defendants were able toshow that the bheels were in the bed of the Ganges, then their right to fish inthem would follow. In reply, however, the learned Vakil for the Appellantscontended for the first time that even if the bheels were held to be in the bedof the Ganges, still the Defendants would have no jalkar rights over them asthey were disconnected with the main stream, during a part of every year. Wewere assured that it never was intended to make the concession which appears tohave been made, and there can be no question as to the correctness of thisassurance.

26. I must therefore deal with this point though it is to beregretted that it was not made at an earlier stage. Reliance was placed onseveral cases, but I am not aware of one which negatives the Defendants claimnow that it has been found that the bheels lie between the banks of the Gangesand in the bed of the river. The cases cited to us on behalf of the Appellantswere Ramanath v. Eshan Chandra 2 Sevea. 463 (1863), Grey v. Annund Mohun [1864]W.R. 108 and Satat Chandra Singh v. Khitish Chandra Roy 12 C.L.J. 216 (1910).

27. In none of those cases did the facts really resemble thepresent, for in none was the bheel actually in the bed of the river, over whichthe claimant had jalkar rights. On the other hand, the decision as to jalkatMuksud pore to which I have already alluded and the case of Jagendto NarayanRoy v. Crawford I.L.R. 32 Cal. 1141 (1905) sanction the view that incircumstances like the present jalkar rights of a river extend to waters in theriver-bed though they are not connected with the waters of the flowing streamthroughout the year. Each case must depend on its own peculiar circumstances.Where the right of fishery is in a river then the Court has to be satisfied ona consideration of all the material facts and conditions whether it can fairlyand reasonably be said that the waters over which the fishery is claimed are apart of the river. In this case I think it may fairly and reasonably be saidthat the bheels in suit are throughout the year a part of the river Ganges.They certainly are such during a part of each year and they lie in that whichthroughout has been and still continues to be a part of the river-bed. Thewater of these bheels is the water of the Ganges and that is the source of thefish they contain. In the circumstances I hold that the temporary disconnectionfrom the flowing stream occasioned by the fall of the waders cannot at any timedeprive the bheels of their character of being a part of the Ganges. It wassuggested for the Plaintiffs that the Defendants could only have access to thebheels by trespassing over the land of the Plaintiffs. This case, however, wasnot suggested in the pleadings or issues or at any stage prior to the argumentin reply on this appeal. This is obviously too late. In my opinion, therefore,the Defendants have established their title to fish in the bheels, so that itis unnecessary to discuss their contend ion that the Plaintiffs have failed toprove that the jalkars in suit formed part of the asses upon which thesettlement of Tuppa Madhuban was made with them. [Cf. Forbes v. Meer MohammedHussein 2 Suth P.C. 865; 12 B.L.R. 210; 20 W.H. 44 (1573)].

28. The result then is that (in my opinion) this Appealshould be dismissed and the decree confirmed with costs.

Richard Harington, J.

29. [After briefly stating the pleadings and the substanceof judgment of the lower Court His Lordship proceeded as follows:

That a fishery known as jalkar Muksud pore has existed forvery many years in the Ganges between Bhagal pore and Peerpainti there can beno doubt. It is mentioned in documents as old as the eighteenth century-itbears a separate Touji number-and is assessed as a separate revenue-payingmahal. That the Defendants are proprietors of this jalkar Muksud pore is notdisputed.

30. The first question to be solved is, of what did jalkarMuksud pore consist Was it an exclusive right of taking fish in the flowingstream of the Ganges-and in such arms or inlets as were permanently connectedwith the river-or was it a right to take fish to the exclusion of all others inthe waters of the Ganges lying between the North and South banks In otherwords, was it a right to take fish in the bed of the Ganges, as distinguishedfrom a right to take fish only in the permanent stream of the Ganges

31. If the right was to take fish in the bed of the Gangesthen the decision of the case depends on the question whether the jalkars insuit were in the bed of the Ganges. If, on the other hand, the grant was onlyof a right to take fish in the stream of the Ganges, the question whether theright could be exercised in the arms of the Ganges which during the dry weatherare unconnected with the stream has to be considered.

32. In my view the answer to this question must depend onwhat were the terms of the grant and I do not think that much assistance can begot from cases referring to other fisheries created by other grants.

33. In this case the grant has not been produced but thereis evidence as to the extent of the rights which the Defendant acquired. Thisevidence consists of old documentary evidence having a direct reference to theextent of the grant-and evidence of the extent to which for many years past theDefendants have exercised the right of fishery under the grant.

[After discussing this evidence His Lordship proceeded asfollows :]

34. Now both Peerpainti and Muksud pore are marked in therevenue map which has been produced, and it is to be observed that according tothat map each of these places is at a considerable distance south of thepermanent stream of the Ganges as shown on the map. Muksud pore lies roughlyW.S.W. of Peerpainti; if a straight line were drawn joining these two places onthe map. The waters in dispute would lie about that line, some to the north andsome to the south of it.

35. The Defendants case is that the permanent south bank ofthe Ganges curves southward from Peerpainti coming again north to Muksud porein the form of a crescent and it is this high bank which forms the southboundary of his fishery. Considerable light is thrown on this question by thelitigation which took place in 1866 when the question arose as to a fishery ina deara which formed in the river. It seems that when the jalkat in the dearaclosed up and became severed from the waters of the river, the zemindar laidclaim to it but it was held in the lower Courts and in this Court to be withinPlaintiffs fishery Mouzah Muksud pore. The learned Judges of this Court layparticular stress on the letter September 1799 and say that the Plaintiffsright was not only to fish in the Ganges itself but was a general right offishery within certain limits-these limits being on the north and south banksof the Ganges-and that the right expressly included stagnant as well as runningwater.

36. The Plaintiffs contend that this case has no bearing onthe question in dispute because the deara was an island, surrounded by theflowing stream of the Ganges, so that in any case it must have been between thebanks of the Ganges whether these banks are taken at the high or low waterseason.

37. The evidence shows that the river Ganges has at this spot,where the fisheries in dispute lie, a great but regular yearly change in itsbreadth. In the hot weather when the waters are low, the river is from 1 to 2miles in breadth. In the rains when the waters are high it is some 8 to 10miles in breadth.

38. On the south of the land in which the disputed jalkarsare, is a railway line. The Commissioner describes the southern bank of theriver which is a short way to the north of the railway line, as a bank nearlyin a crescent form. The Commissioner saw the place in the rainy season. At thattime the water came right up to the high bank which the Defendants contend istheir southern boundary-the jalkars in dispute were all covered and formed onesheet of water with the Ganges. On one side it is said that this large areacontaining several miles of land cannot be regarded as the bed of the Gangesbecause during certain months of the year it is under cultivation and rabbicrops are grown on it-and moreover there are villages on it, while on the otherhand it is contended that as the land in question is regularly covered by theriver it is part of the river bed.

39. The question as to what constituted the bed of a riverwas discussed by A. L. Smith, L.J., in the case of The Thames Conservatory v.Smeed Dean & Co. [1897] 2 Q.B. 334 at p. 338, and he describes it as thatportion of the river which in the ordinary and regular course of nature iscovered by the waters of a river. It need not be constantly covered if in theordinary course of things it is habitually covered. He adopts thisdefinition-"the bed of the river is that portion of its soil which isalternately covered and left bare as there may be an increase or diminution ofthe supply of water, and which is adequate to contain it at its average andmean stage during the entire year without reference to the extraordinaryfreshets of the winter or spring-or the extreme droughts of the summer orautumn." If this definition which was originally given in reference to anAmerican river and applied by A.L. Smith, L.J, in the case of the Thames can beapplicable in the case of a river so unlike the Thames as the Ganges is, thenthe site of the jalkars in suit must be within the bed of the river for theyare regularly and habitually covered by the river for some two months in theyear during the rains and they lie within defined banks. Extraordinary floodsmay make the river overflow the banks and cause inundation but in the absenceof extraordinary floods, the river regularly, year by year, comas up to butdoes not extend beyond this bank in the ordinary course of nature.

40. The fact that in the tract situated between the banks,there are villages which are surrounded by water for a couple of months in theyear, when the river is full, does not seem to me, to affect the questionwhether the tract is the bed of the river. I think the tract is the bed of theriver because it is habitually and regularly covered by the river for asubstantial portion of the year in the ordinary course of nature.

41. In para 12 of the plaint the Plaintiffs allege that nobranch of the Ganges was connected with the jalkar in dispute for 25 yearsbefore the suit-i.e.., since about 1879. Prior to that date therefore on thePlaintiffs own showing the jalkars in dispute were part of the Ganges-butnevertheless there is produced a kabuliyat executed in favour of the Kapaljauruconcern by one Gokul, the lessee of the Plaintiffs, in respect of a jalkarMehal which apparently includes some of the waters now in dispute and thislooks like an endeavour to disturb the Defendants possession when even on thePlaintiffs own showing the waters remained connected with the Ganges. On theother hand, it is possible that the lease refers to other waters outside thebanks of the Ganges for the Defendants lay no claim to any fisheries in themouzah which lie outside the banks of the Ganges. But from whichever point ofview it is looked at it does not help the Plaintiffs. If it purports to dealwith the waters in dispute, it is inconsistent with the plaint : if it dealswith waters outside the banks of the Ganges it is irrelevant.

42. But an a tempt was made by Gokul in 1892 to interferewith the Defendants fishing and a riot took place between the persons who hadbeen licensed to fish by the Defendants lessee and Gokul who had obtained asettlement of all the jalkars in Tuppa Madhuban from the zemindars.

43. Some time before this riot, viz., in October 1891, Gokulhad presented a petition complaining of an obstruction to his fishing by menacting on behalf of the zemindar of jalkar Muksud pore but the Magistrate madeno order on the ground that he considered the case one for a Civil Court.Instead however of going to the Civil Court, Gokul had recourse to violencewhich resulted in his being convicted and sentenced to 6 months rigorousimprisonment under sec. 147, I.P.C. The result of this proceeding is to showthat the Plaintiffs had not possession of the fishery in dispute in 1892-andyet no recourse is had to the Civil Court until 1904.

44. There are or the other hand a number of leases grantedby the lessees of the Defendants to various fishermen of which the earliest isdated 1859 and the latest 1898-but though these relate to fishing in jalkarMuksud pore they do not generally speaking refer to the waters in dispute byname. Some, however, do give details of the water and expressly refer to waterslying within Mouzah Madhuban.

45. There is oral evidence too to show that the lessees ofthe Defendants caught fish in the disputed water-and even the Plaintiffswitnesses concede that the western portion of some of the Dhars in disputewhich lies westward of the boundary of Madhuban are fished by the lessees ofthe Defendants and not by the lessees of the proprietor of the zamindari withinwhose boundaries they lie.

46. Without going in detail into this mass of evidence, Ithink that the conclusion to be drawn from the oral and documentary evidence isthat the Defendants continued to exercise the right of fishing in the waters indispute after they had ceased to be part of the permanent stream of the Gangesand that the only efforts which the Plaintiffs made to oust them from thisfishery were unsuccessful.

47. There was a further point which was pressed by thePlaintiff.

48. He contended that an examination of the accounts shewedthat after the time he alleged that the Defendants ousted him from the fisheryhis income fell, while the revenue the Defendants got from the fishery rose.

49. Even if this were established it would be at the bestvery indirect evidence-but it is sufficient to say that an examination of theaccounts does not establish that there was in fact a rise in the revenue thatportion of the jalkar in which the waters in dispute are situated.

50. There is then the point which was taken in reply, viz.,that any rights the Defendants might have had in the waters in dispute came toan end when these waters ceased to be permanently connected with the riverGanges.

51. In support of the proposition reliance is placed on thecases of Ramanath v. Eshan Chandra 2 Sevres. 463 (1863) and Gopeenath Roy v.Ram Chandra Tarkalunkar 1 Mac. Sel. Rep 304; 2 Seves. 467n. (1808), and SaratChandra Singh v. Khitish Chandra Roy 12 C.L.J. 216 (1910).

52. In tire last of these cases the facts were dissimilarfrom those of the present case : because in that case the subject of disputewas a bheel which was permanently severed from the river-and remained in astate of isolation from the river except when unseal floods made the riverinundate the entire country.

53. The first case tells against the Appellant for there itwas laid down that the grant of fishery must be prima facie confined to theriver and sheets of water communicating therewith-and the Judges intimate thatif the right of fishery had been exercised from the time of the settlement overthe piece of water in dispute or over pieces of water similarly circumstancedthat might show that the fishery at that time had extended to that piece ofwater.

54. The other case, viz., Gopeenath Roy v. Ram ChundraTarkalunkar 1 Mac Sel. Rep. 304; 2 Seves. 467n. (1803) is also distinguishablein point of fact because it was there found that the jheel in question did no.form any part of the river channel.

55. These cases do not establish as a matter of law thatwhen a fishery is granted in a river the grant can only include the right offishing in the back waters of the river as long as they are permanentlyconnected with the stream. Here such evidence as we have of the terms of thegrant shows that it was a grant to fish in all the wars of the Ganges stagnantor flowing between the banks. For reasons I have given I think the banks meanthe permanent high bulks which mark the boundary of the river when it is at itshighest in the ordinary course and if that is so it is difficult to imaginewhat the word stagnant refers to unless it refers to those pieces of waterwhich are one with the river when it is high but are cut off and becomestagnant when it is low The water in such stagnant pools is the water of theGanges and the fish in them are the fish of the Ganges. It does not seem to methat it can well be said that they are not included in a grant of the fisheryeven where that fishery includes stagnant as well as running water.

56. Two other cases were referred to, one of which isdirectly against the Plaintiffs contention. In Jagendro Narayan v. CrawfordI.L.R. 32 Oal. 1141 (1905), it was help that the fishery remained in the watersin dispute notwithstanding that they were temporarily severed from the river inwhich the fishery was granted. In the second, Ishan Chandra Das v. Upendta NathGhosh 12 C.W.N. 559 (1908), in which it was held that the right of fishery hadbeen lost, the grant was of a jalkar in the flowing stream of the Padma, whilethe water in dispute had been permanently severed from the Padma for manyyears.

57. In my view therefore the last contention raised by thePlaintiffs is unsustainable, and inasmuch as the Defendants jalkar extendedfrom bank to bank, and these disputed waters lie between the banks of theGanges, the Plaintiffs suit must fail.

Mookerjee, J.

58. I am in full agreement with the conclusions set out inthe judgment delivered by the learned Chief Justice. But I propose to reviewthe circumstances of the litigation very briefly, as the two members of thisCourt who heard the appeal from the decision of the Subordinate Judge tookdivergent views on the subject.

59. The questions which emerge for consideration from theelaborate arguments addressed to us lie in a narrow compass.

[After briefly stating the pleadings His Lordship proceededas follows:]

60. Two questions, accordingly require examination, first,limitation and, secondly, title.

61. It is plain that no question of limitation really arisesin the case. The suit has no doubt been framed as primarily a suit forpossession, but it is in essence a suit for an injunction to restrain theDefendants from committing what must be deemed a continuing wrong if they failto establish their alleged title. The Defendants do not claim any title to thesoil covered by the waters in which they set up a right to fish. They claimfishery-rights under a grant from the Crown; it they establish this grant, thesuit must be dismissed on the merits. If the Defendants fail to establish thegrant and rely upon possession, they must show that they have acquired astatutory right of easement, because, as pointed out in Chundeecharan v. ShibI.L.R. 5 Cal. 945 (1880) and Loke Nath v. Jahania 14 C.L.J. 572 (1911), aprofit a prendre, such as a fight of fishing in anothers waters is aneasement. within the meaning of that term as defined in sec. 3 of the IndianLimitation Act, 1877, though it is worthy of note that the case of Abhoy Chatanv. Dwatkanath I.L.R. 39 Cal. 53 (1911) raises the question whether an exclusiveright of fishery in a tidal and navigable river can be acquired by proof ofmere enjoyment in the manner provided in the statute without a grant from theCrown. In any view, as a trespasser cannot by the very act of trespassimmediately and without acquiescence on the part of the owner, become possessedof the property upon which he has trespassed till the statutory period haselapsed, the wrongful act of the Defendants can only be deemed acts oftrespass, and as provided in sec. 23 of the Indian Limitation Act, in the caseof a continuing wrong independent of contract, a fresh period of limitationbegins to run at every moment of the time during which the wrong continues.Consequently, the problems of which solution must be sought is that of thetitle alleged by the Defendants.

62. The Plaintiffs, it is not disputed, are proprietors ofthe permanently settled estate Tuppa Madhuban; prima facie, therefore, they areproprietors of the territorial fisheries comprised within the ambit of theirestate. But it is open to the Defendants to put the Plaintiffs to the proof ofthe fact that the jalkars, at the time of the permanent settlement, formed partof the assets of their zamindari, Forbes v. Meer Mohammed Hussain 2 Suth. P.C.865; 12 B.L.R. 210; 20 W.R. 44 (1873) and the question would have been of vitalimportance, if it had been proved that the predecessors of the Defendants were,as in the case before the Judicial Committee, in possession of the jalkars ator before the decennial settlement. This aspect of the case, however, thoughsuggested in the written statement of the Defendants in the primary Court andpressed by their learned Counsel in this Court, does not appear to have beenclearly developed at the trial, and need not be further examined in view of ourconclusion on the other points in the case.

63. It has not been disputed in this Court that theDefendants are owners of fishery-rights in the river Ganges comprised in jalkarMuksud pore. This, indeed, is established by unimpeachable documentaryevidence, though the original, grant has not been produced. It may be statedhere that reference was made to a passage from Hunters Statistical Account ofBengal to show that jalkar Muksud pore was granted in the time of theMohammedan ruler of the country and has been in existence from the 17thcentury. I am not prepared to hold that reference can legitimately be made tostatements in Hunters Statistical Account for the purpose of establishing theexistence of private rights, though I am not unmindful of the decision in AchalRam v. Kazim Hussain L.K. 32 I.A. 113 : s.c. I.L.R. 27 All. 271 (1904), wherethe question does not appear to have been argued. The point, however, is not ofvital importance whether or not the jalkar Muksud pore has been in existencefrom pre-British times. What is really relevant is the grant as recognised atthe time of the Permanent Settlement. That grant, as already stated, has notbeen produced, but the existence of jalkar Muksud pore is conclusivelyestablished by means of recitals in documents very nearly contemporaneous withthe Permanent Settlement. The name is mentioned in a paper which is apparentlya list of jalkars in Pergana Kahalgaon in 1791. It is mentioned again in aRegister of 1794 of revenue-paying estates in Bhagal pore. It was, we alsofind, the subject of correspondence in 1799 between the Collector of Bhagalpore and the Board of Revenue at Calcutta. This last document indicates thatoriginally, at the time of the Permanent Settlement, the jalkar asset wasincluded in the permanently settled estate, but when the estate fell intoarrears, a portion thereof only, inclusive of the jalkar, was sold on the 27thSeptember 1796, at the instance of the Collector for realization of therevenue. This possibly explains how the fishery-right came to be separated fromthe land, and may furnish an answer to the objection forcibly urged by theAppellants, that if the fisheries claimed by the Defendants were comprised inthe bed of the river, it is extremely unlikely that the river-bed should havebeen included within the ambit of their permanently settled estate TuppaMadhuban.

64. We start, then, with the well established fact that theDefendants are owners of jalkar Muksud pore in the river Ganges. Thesubstantial point in controversy is what are the boundaries of this jalkar.Upon a careful examination of the proceedings in the Court below, as also ofthe arguments addressed to the learned Judges who heard the appeal in the firstinstance, it is fairly clear that no question was raised as to the eastern andwestern boundaries. The documentary evidence shows that in the stretch of theriver between Monghyr on the west and Sooner in the east, there are threejalkars, first from Rahuknalal in Monghyr to Mayagunge in Bahagalpore, anotherfrom Mayagunge to Peerpainti and a third from Peerpainti to Soontee. We areconcerned in the present litigation with the second of these jalkirs and thecase has been tried on the assumption that it extended from Mayagunge on thewest to Peerpainti on the east. Some difficulty may possibly be created by thefourth answer of the Kanungoe appended to the letter, dated the 9th September1799, but the point was not really in controversy in the Court below, and thisappeal must be determined on the footing that the western boundary of jalkarMuksud pore is Mayagunge and the eastern boundary is Peerpainti. Thecontroversy has centred round the question, where are the nothern and southernboundaries, of jalkar Muksud pore. The Appellants contend that the southernlimit of the jalkar is the southern edge of the dry weather stream of the riverGanges. The Respondents contend, on the other hand, that the southern boundaryis the high bank which forms the southern limit of the stream when it is fullduring the rains. If the contention of the Appellants prevails, the disputedjalkars must be deemed outside the bed of the river Ganges. If the contentionof the Respondents is established, the jalkars are in the bed of the riveritself. In other words, the question in controversy reduces to this; what isthe southern limit of the bed of the river in that part of the country Asimilar question would be involved in the determination of the northernboundary of the jalkar, if the investigation of that question were necessaryfor the purposes of this litigation. It is fairly clear upon the evidence thatduring the hot weather when the stream shrinks to its minimum size, the riveris from one to two miles broad, while during the rains when the river is fullthe breadth of the stream is as much as ten miles in some places. Consequentlythe question may be put as follows :-Is the river-bed from one to two miles inwidth or is it ten miles in width Or, if the question is considered from asomewhat different standpoint, it may be asked, when the stream expands duringthe rains and attains a breadth of ten miles is that expanse of water still theflowing river or is it merely flood or inundation The elements which supportthe view that the expanded stream is really the river at its fullest are these:-first, the height of what is called as the southern high bank above thelowland to the north stretching towards the stream when it is narrowest;secondly, the alluvial character of the soil of this lowland; thirdly, the natureof the vegetation grown on it; fourthly, the annual recurrence of thephenomenon of the expansion of the stream; fifthly, the length of time duringwhich the expanded stream continues to retain its maximum size; sixthly, theexistence of currents at the southern extremity of the expanded stream, and,seventhly, the presence of marks of towing ropes on what is called the southernhigh bank, indicating that at some time or other the river must have extendedas far south as the high bank. On the other hand, the elements upon which theAppellants rely to support their theory that the stream as it exists during dryweather is the real river Ganges, which inundates the surrounding countryduring the rains as the stream can no longer be contained within its narrowbed, are as follows :- first, the distance between what is called the southernhigh bank and the southern edge of the stream in dry weather, namely, from fiveto six miles; secondly, the fact that there are groups of villages inhabited bycultivators on this long stretch of land; thirdly, the fact that when the watersubsides the land is regularly cultivated and winter-crops are grown. In myopinion the inference to be drawn from all these circumstances is that what isdescribed as the southern high bank is the southern bank of the liver. Thisview is confirmed by the remarkable fact that the Appellants themselvesrealised the full effect of some of the circumstances already mentioned,specially, the regular recurrence of the expansion of the stream, the length ofthe period of time during which the expanded stream is maintained at itsmaximum size, and finally the existence of currents therein; the witnesses forthe Appellants endeavoured, though unsuccessfully, either to deny altogetherthe existence of these facts or to minimise them as far as practicable. But ithas been strenuously argued on behalf of the Appellants that the bed of theriver is the channel in which the water flows continuously throughout the year.This contention cannot possibly be supported. It is indisputable that, in thewords of the Digest, "That is considered to be the bank which contains theriver when fullest" (Digest 43, 12, 3). Ware on Roman Water Law, sec. 41.Consequently, the bed of the river is understood to be the whole of whatcontains its waters when most swollen, in whatever time of the year, withoutleaving its channel and overflowing its banks. When the river is at its fullflow, be that by the daily flow of the tide or by the natural increase of itswaters occasioned by rain or the like cause filling its natural bed to itshighest reach of flow, it marks its high water while its diminished range offlow by summer heats shows its low water mark. In other words, as Grotius putsis, (War and peace, 2, 8, 9), the bank is the outermost part of the bed inwhich the river naturally flows at its fullest. On this passage Vinniuscomments, this signifies that that space next to the bank which is some timenot occupied by the river, when reduced by heats in the summer season, is not apart of the bank. This justifies the statement of Houck (Navigable Revets,page 6), that the bed of a river is the space between the banks occupied by theriver at its fullest flow, so that the bank of a river is no part of its bedfor the bank ends at the line to which the water rises at its highest flow, andthough the space next below it is sometimes uncovered by the river when reducedto its lowest flow, yet the space so uncovered is not a part of the bank but ofthe bed of the river; the bank is thus the border of the bed within which bedthe river flows when in its fullest state naturally, that is to say, when nottemporarily overflowed by extraordinary rains. The subject was lucidlydiscussed by Mr. Justice Curtis in delivering the judgment of the Supreme Courtof the United States in Howard v. Ingersoll 13 Howard 831 (427); 54 U.S. 381.The banks of a river are those elevations of land which confine the waters whenthey rise out of the bed, and the bed is that soil so usually covered by wateras to be distinguishable from the banks by the character of the soil orvegetation or both, produced by the common presence and action of flowingwater. But neither the line of ordinary high water mark nor of ordinary lowwater mark nor the middle stage of the water can be assumed as the linedividing the bed from the banks. The line is to be found by examining the bedand banks, and ascertaining where the presence and action of the water are socommon and usual, and so long continued in all ordinary years as to mark uponthe soil of the bed a character distinct from that of the banks in respect tovegetation, as well as in respect to the nature of the soil itself. Whetherthis line, between the bed and the banks, will be found above or below or at amiddle stage of water, must depend on the character of the stream. The heightof a stream during much the larger part of the year, may be above or below amiddle point between the highest and he lowest flow. Something muse depend alsoupon the rapidity of the stream and other circumstances. But, in all cases, thebed of a river is a natural object, and is to be sought for not merely by theapplication of any abstract rules but as other natural objects are sought forand fount by the distinctive appearance they present, the banks being fast landon which vegetation appropriate to such land in the particular locality growswherever the bank is not too steep to permit such growth and the bed being soilof a different character, and having no vegetation, or only such as exist whencommonly submerged in water. To the same effect is the statement in Alabama v.Georgia 28 Howard 505, 516; 64 U.S. 505. "It is the running water of theriver that makes its bed, for it is that and that only which leaves its indeliblemark to be readily traced by the eye, and wherever that mark is left there isthe rivers bed; it may not be there to-day, but it was there yesterday andwhen the occasion comas it must and will, unobstructed again, fill its ownnatural bed." This view was substantially accepted in Hindson v. Ashby[1896J 1 Ch. 78 (84) (1895); on app. [1896] 2 Ch. 1 (25), The ThamesConservatory v. Smeed & Co. [1897] 2 Q.B. 334. Judged from this point ofview, the contention of the Appellants cannot be accepted as sound. It isindisputable upon the evidence that from year to year during the rains theriver attains a breach which varies from 8 to 10 miles, and this state ofthings continues during a period of at least two months. There is no room forsuggestion that this is an accidental phenomenon, a flood or an inundation, atemporary overflow due to extraordinary rains or some similar exceptionalcause. The evidence consequently tends to support the view that the disputedjalkars stand on land which is included in and is pare of the river-bed. It hasbeen suggested, however, that this view, if carried to its logical conclusion,may create difficulties in the application of the law of accretion, and,reference has, in this connection, been made to the judgment of the Judicial Committeein the case of Lopez v. Muddan Mohan Thakur 13 M.I.A. 467 (475) (1870), whereJames, L.J., described the bed of the sea or public river belonging to theState as "public domain not usable in the ordinary sense." Referencehas also been made to observations in the cases of Narayan Kumari v. NawabNazim of Bengal 4 W.R. 41 (1865), Nabin Kishore Roy v. Joges Prosad Ganguli 14W.R. 352 (1870), Kanta Prosad Hazari v. Abdul jamir 8 C.W.N. 676 (1904) andSeeb Kristo v. East India Co. 6 M.I.A. 267 (1856). I do not feel pressed by thedifficulty suggested. It may show at best that the principle which must beapplied to the solution of the question raised in the present case should notbe extended and carried to what may seem to be its logical sequence. Consequentlythe only inference legitimately deductible from the facts clearly establishedin the evidence is that the jalkars stand on the river-bed. This view isfortified when the evidence of possession is examined. On this part of thecase, there is no reason why the oral evidence on the side of the Defendantsshould be rejected. That evidence has been believed by the Subordinate Judgeand sufficient reasons have not been made out to support the contrary view. Atone stage of the argument much stress was laid on the assertion that theaccounts produced by both the parties indicate that the increase in the incomeof the Defendants synchronises with the increase of the income of thePlaintiffs and that this began in the year 1891 when the Plaintiffs allege thatthey were dispossessed. Upon a closer examination of the accounts, however thistheory was completely negatived. On the other hand, the kabuliyats produced bythe Defendants, in so far as the jalkars mentioned therein can be identified,tend to support their allegation of possession. But I do not attach very greatimportance to the kabuliyats on either side, because the description of theproperties demised are vague, and an additional difficulty is created by thefact that different jalkars are in the locality called by the same name, whilethe same jalkar has different names given to it by different people.Considerable weight, however, must be attached to another remarkablecircumstance, namely, the undoubted fact that the Defendants have been in occupationof other jalkirs in respect of which their possession would be wrongful excepton the theory that those jalkars, similarly situated to the jalkars now incontroversy, covered land forming part of the bed of the river. In respect ofone of these jalkars, the Government challenged the title of the Defendants butsubsequently recognised the validity of their claim. In respect of anotherjalkar which lies within the estate of the thirty-sixth Plaintiff, it isnoteworthy that the title of the Defendants has not even been contested. On thewhole therefore the conclusion becomes irresistible that the jalkats in disputeform part of the river-bed and that the Defendants have been in occupationthereof as comprised in their jalkar Muksud pore. It has finally been argued onbehalf of the Appellants that even if the disputed fisheries be deemed to besituated in the bed of the river Ganges, the Defendants as owners of jalkarMuksud pore are not entitled to them inasmuch as they are during at least apart of the year disconnected from the continuous flowing stream. In support ofthis proposition, reliance has been placed on the cases of Grey v. AnnundaMohun [1864] W.R. 108, Ramanath v. Eshan Chandra Seves 463 (1863) and SaratChandra Singh v. Khitish Chandra Roy 12 C.L.J. 216 (1910). Reference has alsobeen made to the cases of jagendro Natayan v. Crawford 2 C.L.J. 569 s.c. I.L.R.32 Cal. 1141 (19, Pertab v. Unnoda 2 Seves. 754 (1863) and Hanbury v. Jenkins[1901] 2 Ch. 401. The cases relied upon do not really assist the contention ofthe Appellant. The case of Sarat Chandra v. Khitish Chandra 12 C.L.J. 216(1910) shows that a grant of fishery right in a river does not give to thegrantee a title to fish in sheets of water adjacent to the river with which theriver communicates only in the time of floods. This principle, however, has noapplication to jalkars situated in the bed of the river itself; the grantee offishery right in the river is entitled to fish in all waters comprised withinthe banks of the river, and the circumstance that a particular sheet of watermay, during part of the year, be disconnected from the flowing stream orpermanent current does not affect the rights of the grantee. A jalkar sosituated in the river-bed is essentially part of the river, and the fishcontained therein may properly be deemed fish of the liver. Consequently, theDefendants must be taken to have established their jalkar right in the disputedsheets of water which are situated in the bed of the river Ganges within itsbanks and are accordingly parts of the river itself. On these grounds, I agreethat the decree of the Subordinate Judge must be affirmed.

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Bibi Ahmodi Begum and Ors. vs. Mahasay Taraknath Ghose andOrs. (18.03.1913 - CALHC)