Chundi Churn Roy v. Shib Chunder Munbol .

The facts are set forth in the judgment of the High Court(1) which was delivered by

White, J.:— This is an appeal against the decree of the District Judge Burdwan, reversing the decree of the Moonsiff which had bee passed in favor of the plaintiff, who is the appellant before us.

From the language of his plaint it is dubious whether the plaintiff, who is the appellant before us, claims the ownership of the portion of the khal mentioned in the plaint, or whether his claim is confined to a right of fishing in the water of that portion of the khal. In the course of the proceedings, however, that point was cleared up; for the Moonsiff says in his judgment that the plaintiff's claim was limited to a prescriptive right of fishery and it is clear from his grounds of appeal to this Court that the plaintiff accepts that view of his case.

The Moonsiff, finding that there was upwards of twenty years enjoyment of the right to fish proved by the plaintiff, passed ??? decree in his favor.

The learned Judge in the lower Appellate Court, in reversing that decree, makes this observation:— “section 26 of the Limitation Act, and the 20 years' prescription there spoken of, have no application in the present case, which is not a case of an easement, for the simple reason that there is admittedly no ??? tenement. What the plaintiff claims is not a right appurtenant to any property in his possession. He claims a right in gross, ??? right to fish in a khal, which is admittedly not on his land. He does not say bow he came to acquire the right originally. He relies merely upon the alleged fact of having exercised it for number of years.”

Now in the first place, the judgment over-looked the fact that the word “easement,” as used in the Indian Limitation Act, has by force of the interpretation clause, section 3, a very much more extensive meaning than the word bears in the English law; ??? it includes “any right not arising from the contract, by which ??? person is entitled to remove and appropriate for his own ??? any part of the soil belonging to another, or anything growing ??? attached to, or subsisting upon, the land of another.” An easement, therefore, under this law embraces which in English law is called a profit à prendre, that is, a right to enjoy a profit out of the land of another. It is argued that the clause does not extend to a fishery, but I entirely disagree with the argument. The legal meaning of “land” is not only dry land, but also land covered by water; and I see no reason for holding that the word “land,” as used in section 3, bears other than the legal meaning which ordinarily attaches to the word. Taking land to have this meaning, fish may properly be said to grow or subsist upon it.

Again section 27 of the Act, which contains a proviso applicable to the whole doctrine of the acquisition of easements by possession as laid down in the previous section, expressly mentions water as well as land, and as the word “easement” has the extended meaning given to it by the interpretation clause, I think that if there was any doubt on the subject, the language of the proviso makes it clear that the profit arising from water as well as from land was in the contemplation of the Legislature. It would be attributing a singular oversight to the Legislature if we were to suppose that when dealing with profits à prendre it intended to omit a right of fishery, which is one of the most common classes of property enjoyed in this Presidency.

It is true, as the Judge says, that the right claimed by the plaintiff is not a right appurtenant, but a right in gross. Still a profit à prendre in gross, which is the technical name of the right claimed by the plaintiff, is a right recognized by the law, and may be established by the very same sort of evidence as used to establish either a profit à prendre appurtenant on an it in the ordinary sense of the word.

It is clear, therefore, that the Judge in dealing with the appeal has fallen into an error of law.

The case must, therefore, go back in order that the lower ??? Appellate Court may decide upon the evidence of user which ??? plaintiff has given. Although the Moonsiff has found in ??? of the plaintiff, the defendant (who is the respondent ??? us) is entitled to have the opinion of the lower Appellate ??? upon the question whether the user has been of that ??? and of that character which confers the right claimed.

The user necessary for the purpose must, as section 26 of the Limitation Act provides, be an “enjoyment as a right without interruption and for 20 years.”

The Judge, in the latter part of his judgment, alludes again to the Limitation Act, and treating it as doubtful whether the right claimed was an interest in immoveable property, goes on to say that, supposing it was such an interest, the plaintiff had not shown that he had exercised the right adversely to the defendant for more than 12 years before suit. This is a misapplication of the law of Limitation. What the plaintiff has to prove in order to establish his right is not 12 years' adverse possession, but 20 years' uninterrupted enjoyment of the fishery as of right. If he gives evidence of such a user—and it is not contradicted by trustworthy evidence on the part of the defendant—it is sufficient to establish the right which the plaintiff claims.

The lower Appellate Court, in the introductory part of its judgment, alludes to some question that was raised before it as to the termini of the portion of the khal over which the plaintiff claims the right to fish. We have examined the question, and consider the termini must be taken to be those which are mentioned in the decree as amended by the order of the Moonsiff on the 24th of June 1878, viz., from the boundaries of village Barambatti to those of the village Baijna. These are the boundaries mentioned in the body of the plaint, and the Moonsiff, who gave the judgment on the 15th of February 1878, accepts these as the boundaries. The confusion arose from a mistake in the schedule annexed to the plaint, which gave Bijatkana instead of Baijna as one of the termini. In drawing up the decree of the first Moonsiff, the boundaries, as given is the schedule, were introduced instead of those which appear, in the body of the plaint and in the Moonsiff's judgment. This mistake was corrected, and properly corrected, by the amending order of the 24th of June 1878.

The appeal is allowed, and the case remanded to the lower Appellate Court for retrial. That Court, in retrying the case will have regard to the foregoing observations and ???. The costs will abide the event. The costs of the retrial left to be dealt with by the lower Appellate Court.