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Kumarkrishna Nandi Chaudhur v. Lokenath Mukherji

Calcutta High Court

May 20, 1931

Judgment

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Judgment Summary — Mitter, J.

Factual and Procedural Background

The suit (two consolidated appeals arise from it) was brought by the plaintiff (appellant in Appeal No. 1841 of 1929) for a declaration of title to a portion of the river known as Kânâ Nadi. The plaintiff alleged that the river formed part of the mouzâ called Naya Chak and that he possessed the river in both patni and dar-patni right; he further alleged that the river had been possessed from time immemorial as jalkar (fishery) and that defendant No. 1 had fabricated collusive documents to create evidence of title. A section 145 Code of Criminal Procedure proceeding between the parties concerned both the river bed and watery portion; in that proceeding the magistrate awarded possession to defendant No. 1.

The plaintiff sought injunctive relief restraining defendant No. 1 from dispossessing him and alternatively prayed for possession if he was found dispossessed by the section 145 proceeding or otherwise. Defendant No. 1's defence was that the river formed part of the villages Harishpur and jalâ Biswanathpur, that he had possessed the river by letting out the jalkar to tenants and by collecting tolls from boatmen, and he denied that the river formed part of Naya Chak. Other defendants raised similar defences.

At first instance the Munsif concluded the plaintiff had established title to the river-bed but held that defendant No. 1 had acquired a jalkar (fishery) right; accordingly the decree granted relief to the plaintiff subject to defendant No. 1's jalkar right. On appeal to the Subordinate Judge of Howrah, the Subordinate Judge affirmed the Munsif's decision on title but differed as to limitation, holding that defendant No. 1 had acquired a prescriptive right by prescription prior to obstruction caused in August 1924. Two further appeals (No. 1841 by the plaintiff and No. 2128 by defendant No. 1) followed to the court delivering this opinion.

Legal Issues Presented

Whether the plaintiff was entitled to a declaration of title to the disputed portion of the river Kânâ Nadi, free from any jalkar (fishery) right claimed by defendant No. 1.
Whether defendant No. 1 had acquired a right of fishery (jalkar) in the river by prescription/adverse possession (continuous possession from 1310 (1903) to 1331 (1924)).
Whether the deed of settlement executed by Raja Pyarimohan Mukherji passed the jalkar in question to defendant No. 1 (i.e., whether defendant's possession could be tacked to his predecessor's possession).
Whether a jalkar (exclusive right of fishery) is to be treated as an easement (requiring 20 years under section 26 of the Indian Limitation Act) or as an interest in immovable property (capable of being acquired by adverse possession for 12 years under the Limitation Act provisions referenced in the opinion).
Whether acts by the plaintiff within 12 years of suit, notably erection of a dam in 1924, interrupted defendant No. 1's adverse possession so as to prevent acquisition by prescription.

Arguments of the Parties

Appellant (Plaintiff) — main contentions

The plaintiff contended that the river formed part of the mouzâ Naya Chak and that he possessed it (patni and dar-patni); under the frame of the plaint Article 142 of the Limitation Act was the proper Article and it was incumbent on the plaintiff to prove possession within 12 years of suit.
The plaintiff argued there had been an interruption of defendant No. 1's adverse possession within 12 years prior to the suit by acts of the plaintiff, notably the erection of a dam in 1924 and taking of water, which would prevent defendant No. 1 from acquiring title by prescription.
The plaintiff challenged the effective transfer of the jalkar by the deed of settlement — it was contended the deed only passed certain schedule properties and did not, on its true construction, pass the jalkar in question, which if true would break defendant No. 1's tacked possession.

Respondent (Defendant No. 1) — main contentions

Defendant No. 1 contended that the disputed river formed part of the villages Harishpur and jalâ Biswanathpur and that he and his predecessors had been in open, peaceful, continuous possession of the jalkar (fishery) — letting it to tenants and collecting tolls from boats — from 1310 (1903) to 1331 (1924).
He maintained that the deed of settlement executed by Raja Pyarimohan Mukherji passed the gha schedule properties including jalâ Biswanathpur, and that the jalkar had been treated by the Raja as part of mouzâ jalâ Biswanathpur and therefore passed to defendant No. 1.
On appeal defendant No. 1 argued that the plaintiff's suit should be dismissed entirely because defendant's prescriptive/adverse possession defeated the plaintiff's claimed rights.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lukhimoni Dasi v. Koruna Kant Moitro	Referenced in connection with the position under earlier law (Act IX of 1871) treating jalkar (fishery) as an interest in immoveable property and acquisible by adverse possession of 12 years.	The court cited this as background authority supporting the view that jalkar could be an interest in immoveable property under earlier law; it contributed to the court's analysis of whether defendant's continuous possession could give him a prescriptive right.
Parbutty Nath Roy Chowdhry v. Mudho Paróe	Referenced similarly to the above as authority in the context of the earlier Limitation Act treating jalkar as an interest rather than an easement.	Used as supporting reference for the proposition that under earlier law a jalkar was treated as an interest in immoveable property and therefore susceptible of acquisition by adverse possession for 12 years.
Hill and Company v. Sheoraj Rai	Held that an exclusive right of fishery is an interest in immoveable property and can be acquired by adverse possession for more than 12 years, involving ouster of the rightful owner.	The court relied on this decision as authority for treating an exclusive fishery right as an interest susceptible to acquisition by adverse possession for over 12 years and applied that principle to conclude defendant No. 1 had acquired the jalkar right.

Court's Reasoning and Analysis

The court proceeded by addressing the appeals separately but with intertwined issues of title, prescription/adverse possession and the legal character of a jalkar (fishery) right.

On the findings of the courts below the Munsif had held the plaintiff established title to the river-bed but that defendant No. 1 had a jalkar right; the Subordinate Judge affirmed the title finding but concluded defendant No. 1 had acquired a prescriptive right by possession prior to an obstruction in August 1924. The appellate court examined whether defendant No. 1's continuous possession from 1310 (1903) to 1331 (1924) — a period in excess of twelve years — entitled him to a jalkar right by prescription.

A central factual-legal question was whether defendant No. 1's possession could be tacked to that of his predecessor, Raja Pyarimohan Mukherji, by virtue of a deed of settlement. The Munsif had held the deed omitted the particular jalkar and therefore did not pass it, whereas the Subordinate Judge held that the jalkar appertained to mouzâ jalâ Biswanathpur which had been allotted by the Raja under the deed and that separate mention was unnecessary. The court (Mitter, J.) agreed with the Subordinate Judge's construction of the deed and accepted the finding that Raja Pyarimohan Mukherji had treated the jalkar as part of mouzâ jalâ Biswanathpur (including kabuliyat receipts taken by the Raja), enabling tacking of possession.

The court then addressed the legal character of the jalkar right under the Limitation Act. It contrasted three positions:

Under Act IX of 1871 a jalkar was considered an interest in immoveable property, so adverse possession for more than 12 years could acquire the right (Article 145 under that Act was referenced).
Under later Limitation Acts (1877 and 1908) and given the statutory definition of "easement", a jalkar could be regarded as an easement requiring 20 years' enjoyment under section 26 to acquire a right where claimed without exclusion of the owner or in common with others.
Where the right is exclusive — i.e., an exclusive right of fishery involving ouster of the owner — it more naturally falls within the definition of an interest in immoveable property (Article 144 in the first schedule was discussed) and adverse possession for more than 12 years (operation of section 28 of the Indian Limitation Act as referenced in the opinion) would extinguish the owner's right to that extent.

The court relied on authority, notably Hill and Company v. Sheoraj Rai, to support the proposition that an exclusive fishery right is an interest in immoveable property and can be acquired by adverse possession for more than 12 years. Applying the facts — continuous, open and peaceful enjoyment of the right of fishery by defendant No. 1 and his predecessor from 1310 to 1331 — the court held defendant No. 1 had acquired the exclusive jalkar right by prescription.

The court rejected the plaintiff's contention that intermittent acts such as erecting a dam in 1924 interrupted defendant No. 1's adverse possession. The court reasoned that the erection of the dam occurred “at a time when the right of the plaintiff with reference to the jalkar had already become barred by statute” and thus could not revive the plaintiff's right. Other acts relied on by the plaintiff were held not to have interfered with defendant No. 1's exclusive right to fish.

In considering the defendant's appeal (No. 2128 of 1929) arguing that the plaintiff's suit should have been dismissed in its entirety, the court declined to read paragraph 3 of the plaint as limiting the plaintiff's case to fishery alone; the court found the plaint alleged other modes of enjoyment and therefore did not accept the defendant's narrower construction of the plaint.

Finally, while the Subordinate Judge had characterized the defendant's right as an easement acquired by 20 years' possession, the court disagreed with that specific characterization and instead treated the right as an interest in immoveable property acquired by adverse possession for more than 12 years.

Holding and Implications

Core Ruling: Both appeals are dismissed.

Implications and direct consequences:

On the factual findings accepted by the court, defendant No. 1 (and his predecessor Raja Pyarimohan Mukherji) had been in continuous, open and peaceful possession of the jalkar (fishery) from 1310 (1903) to 1331 (1924), a period exceeding the statutory twelve years relevant to a right treated as an interest in immoveable property; accordingly defendant No. 1 acquired the exclusive jalkar right by prescription/adverse possession.
The plaintiff's title to the river-bed, as earlier declared by the courts below, remains subject to the jalkar right of defendant No. 1; the plaintiff's reliance on interruption by erection of a dam or other acts within 12 years was rejected by the court.
No order as to costs was made in either appeal (explicit in the judgment).
The opinion does not assert the setting of any new broad precedent; the court framed its decision by applying existing principles and authorities to the facts before it.

A.K.D

Appeals dismissed.

Show all summary ...

Mitter, J.:— These are two appeals and arise out of the same suit, which was commenced by the plaintiff, who is appellant in Appeal No. 1841 of 1929, for declaration of his title to a portion of the river known as Kânâ Nadi. The plaintiff's case is that the river formed part of a village which he claims both in patni and dar-patni right. In paragraph 3 of the plaint, it is stated that the river was being possessed from time immemorial as jalkar, and the plaintiff alleges that these lands form part of the mouzâ called Naya Chak and that he was in possession of the same through his tenant, who is a pro forma defendant in the suit. The plaintiff further alleges that defendant No. 1 has, with the object of creating evidence of title, created several collusive documents in concert with other defendants to the suit. A proceeding under section 145 of the Code of Criminal Procedure Was started between the parties and the proceeding related both to the river bed and the watery portion of the river. In that proceeding, possession was awarded by the magistrate to defendant No. 1. The plaintiff, consequently, seeks in this suit for an injunction restraining that defendant from dispossessing him. It is also prayed, in the alternative, that, if the plaintiff is found to have been dispossessed as a result of section 145 proceeding or otherwise, possession might be given to him. The case set up in defence by defendant No. 1 is that the river in dispute formed part of two villages of Harishpur and jalâ Biswanathpur and his contention is that he has been in possession of this river by letting out the jalkar of this river to tenants. He further alleged that he exercised possession in respect of the river by collecting tolls from boats when the boatmen plied over his river. He challenged also the plaintiff's title to the disputed river as forming part of the disputed village Naya Chak. The other defendants raised the same defence as defendant No. 1. Several issues were framed in the suit. The court of first instance came to the conclusion that the plaintiff has established his title to the river-bed or to the river in the suit, but, holding adversely to the plaintiff on the question that defendant No. 1 has acquired a right in the fishery or a jalkar right, the Munsif has granted a decree to the plaintiff subject to the jalkar right of defendant No. 1. In other words, it is said in that decree that the defendant may possess the right to fish in the river either by himself or through his tenants to the exclusion of the plaintiff or his tenants if any for the same.

Against this, an appeal was taken to the court of the Subordinate Judge of Howrah by the plaintiff and there was also a cross-objection by defendant No. 1, in so far as the plaintiff's title to the river in the suit was declared. His contention was that the plaintiff's suit should have been dismissed in its entirety. The Subordinate Judge found on the question of title in favour of the plaintiff. He, however, differed from the Munsif on the question as to whether the plaintiff's suit is barred by limitation under Article 142 of the first schedule to the Limitation Act and he came to the conclusion that defendant No. 1 had acquired a right by prescription in the jalkar before an obstruction was caused in August, 1924, by the plaintiff by the erection of a dam. In this view, he affirmed the decision of the Munsif, although his reasons with reference to the question of limitation, adverse possession and prescription are not the same as those of the Munsif.

Against this decision, two appeals have been preferred, one by the plaintiff, which is numbered 1841, and the other by the defendant No. 1, which is numbered 2128. Both sides contended respectively that, on the findings arrived at by the Subordinate Judge, there should have been a decree in favour of the plaintiff in its entirety or that the suit of the plaintiff should have been dismissed in its entirety. This is the extreme contention respectively of the plaintiff and defendant No. 1 in these two appeals. It will be necessary to deal with the two appeals separately.

I take Appeal No. 1841 of 1929 first. In this case a very careful argument has been addressed to me by Mr. Hiralal Chakrabarti, who appears for the plaintiff appellant, and he has said nothing which does not merit consideration. Nonetheless, after hearing his arguments and hearing the respondent, I have come to the conclusion that this appeal must be dismissed. The main ground upon which there has been controversy before me in this appeal is that, on the findings arrived at by the lower appellate court, there has been such an interruption of adverse possession of defendant No. 1 that the plaintiff's title could not be said to be extinguished by such possession. At one stage of the argument, it was conceded by Mr. Hiralal Chakrabarti that, having regard to the frame of the plaint, the proper Article applicable to the case is Article 142 and that, therefore, it was incumbent upon him to prove that he was in possession within 12 years of the institution of the suit. He seeks to discharge the burden of proof which lies on him by showing that, on the findings it appears that, during the period of 12 years from the date of the institution of the suit, he has erected a dam over the channel in question. It appears, however, that, according to the findings of the lower appellate court, defendant No. 1 had been in uninterrupted, open and peaceful enjoyment of the right of fishery from 1310 (1903) to 1331 (1924). This continuous possession for more than the statutory period would entitle the defendant to succeed with regard to the right of jalkar in the river if such possession has been a possession of one single person or of the defendant and his predecessor in interest. In other words, on this part of the case controversy arose whether possession of defendant No. 1 would be tacked on to the possession of his ancestor, Raja Pyarimohan Mukherji, and it is contended that this property did not pass by the deed of settlement executed by Raja Pyarimohan Mukherji in favour of defendant No. 1, to which I shall refer later on. If this contention could be established, there would undoubtedly be a break in the adverse possession of defendant No. 1 and such a possession would not defeat the right of the plaintiff. With reference to this branch of the case, it has been argued that the deed of settlement only purports to pass to defendant No. 1 the gha schedule properties which include jalâ Biswanathpur and it is said that, on a construction of this deed, it is not possible for the respondent to contend that the jalkar in question passed by the settlement, which refer only to jalkar Biswanathpur. It appears, however, from the evidence given in this case that Raja Pyarimohan Mukherji treated the jalkar in question as forming a part of the mouzâ jalâ Biswanathpur, for he took the kabuliyat in respect of this jalkar from the various tenants. This kabuliyat has also been referred to by the Munsif and it goes to show that Raja Pyarimohan Mukherji treated this jalkar as a part of mouzâ jalâ Biswanathpur. On this point the courts below have differed. The Munsif was of opinion that the deed of settlement did not pass the jalkar in question. The Munsif said this: “This would have made out a case of adverse possession also, but for the omission in the deed of settlement of the Raja. This much, however, is clear that the plaintiff was never in possession of the jalkar.” The Subordinate Judge, however, came to a different conclusion and he states that it was not necessary to mention separately the jalkar in the deed of settlement as jalkar appertained to mouzâ jalâ Biswanathpur which had been allotted to defendant No. 1 by Raja Pyarimohan Mukherji under the deed of settlement. I think that the decision of the Subordinate Judge, with regard to the construction of the deed of settlement, is right. This being so, it appears clear, on the findings, that defendant No. 1 and his predecessor Raja Pyarimohan Mukherji had been in uninterrupted possession from 1310 to 1331 for more than the statutory period of 12 years. Question has next been debated as to whether this exclusive right of fishery under claim is a right in the nature of easement within the meaning of the Indian Limitation Act or it is in the nature of an interest in the immoveable property so as to attract the application of Article 144 of the first schedule to the Limitation Act. Under Act IX of 1871, a jalkar right of fishery was considered as an interest in the immoveable property and not as an easement and that by that Act adverse possession for more than 12 years was sufficient for the acquisition of that right under Article 145. Reference may be made in this connection to the cases of Lukhimoni Dasi v. Koruna Kant Moitro and Parbutty Nath Roy Chowdhry v. Mudho Paróe. In the Limitation Act of 1877 and of 1908, having regard to the definition of the word “easement” under section 2 of the Act, a jalkar is regarded as an easement and consequently 20 years enjoyment is necessary under section 26 of the Indian Limitation Act to acquire any right of fishery. That might be the case where the right is claimed without any exclusion of the owner or in common with others. A case of exclusive right to fishing would rather seem to fall within the definition of interest in the immoveable property under Article 144 and adverse possession of such a right for more than 12 years would by operation of section 28 of the Indian Limitation Act extinguish the right of the lawful owner to that extent. There is some authority for this view. Reference may be made to the decision in the case of Hill and Company v. Sheoraj Rai, where it was held by Sir Dawson Miller C.J and Mallik, J. that, if it was an exclusive right of fishery, it is an interest in the immoveable property and can be acquired by adverse possession for more than 12 years involving an ouster of the rightful owner. On this ground, having regard to the finding of the court below, I think this appeal should fail. It remains to notice the argument of Mr. Chakrabarti that this adverse possession was interrupted by stray acts of the rightful owner in erecting a dam in 1924 within 12 years of the suit or in taking of water. The answer to this contention is that, so far as the erection of the dam is concerned, this erection was at a time when the right of the plaintiff with reference to the jalkar had already become barred by statute. So this is of no avail to the plaintiff. With regard to the other acts, they did not interfere with defendant No. 1's right of fishing in the jalkar.

It remains now to consider the appeal of defendant No. 1, namely, Appeal No. 2128 of 1929. Mr. Brajalal Chakrabarti Shastri, who appears for him, contends that, on the findings arrived at by the lower appellate court, plaintiff's suit should have been dismissed in its entirety, on the ground that adverse possession was against the entire interest possessed by the plaintiff. For this purpose, he has relied on the plaintiff's own case made in paragraph 3 of the plaint. He contends that paragraph 3 suggests that, according to the plaintiff's case, the exercise of the right of fishery was the only mode in which this river was enjoyed by the plaintiff. He asks me to construe paragraph 3 of the plaint in that way. I am unable, however, to agree to this contention. It is not suggested in paragraph 3 that the right of fishery was the only mode in which the river was being enjoyed. On the other hand, there are passages in the same paragraph which go to show that there are other modes of enjoyment by the plaintiff. It has been further argued, on the question of easement, that paragraph 3 must bear the construction which Mr. Shastri wants to put upon it. The plaintiff, having failed to establish the mode of possession suggested, and other modes of possession suggested in paragraph 3 of the plaint, except possession by exercise of the right of fishery by the plaintiff, should not be permitted to take that ground and succeed in the suit. This contention does not seem to me to be maintainable on a proper reading of paragraph 3 of the plaint.

Before dismissing this appeal, it is necessary that I should observe that I do not agree with the Subordinate Judge that defendant No. 1 had acquired a right of easement by continuous possession for over 20 years. I have already stated, while dealing with Second Appeal No. 1841 of 1929, that the right view to take is with regard to the right of fishery claimed by the defendant No. 1 that this right should be regarded as an interest in the immoveable property and that, as defendant No. 1 has been in possession for more than 12 years, he has acquired that right by prescription in the sense of adverse possession for more than the statutory period.

The result is that both the appeals are dismissed. No order is made as to costs in either appeal.