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CASE NO.:

Appeal (civil) 1170 of 1980

Appeal (civil) 645 of 1981

PETITIONER:

Tulsi Ram & Ors., The Proprietors of Mathura Sagar Bareja & ors.

RESPONDENT:

Mathura Sagar Pan Tatha Krishi & Anr., Tulsiram & Ors.

DATE OF JUDGMENT: 12/11/2002

BENCH:

Umesh C. Banerjee & Y.K. Sabharwal.

JUDGMENT:

JUDGMENT

Banerjee, J.

Since the decision of this Court in Braja Sundar (Raja Braja

Sundar Deb v. Moni Behara & Ors. : 1951 SCR 431), the legal

phenomena pertaining to the doctrine of 'lost grant' seems to be

well settled. This Court in Braja Sundar (supra) upon reliance on

the observations of Lord Radcliffe in Laxmidhar Misra v. Rangalal

(AIR (37) 1950 PC 56) stated as below :

".. This doctrine has no application to the case of

inhabitants of particular localities seeking to establish

rights of user to some piece of land or water.

the doctrine of lost grant originated as a technical

device to enable title to be made by prescription despite

the impossibility of proving immemorial user and that

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, and that 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 admissible grantees."

This Court further in Braja Sundar (supra) upon reference to

a Bench decision of the Calcutta High Court in Asrabulla v.

Kiamatulla (AIR 1937 Cal. 245) was pleased to observe that no

'lost grant' can be presumed in favour of a fluctuating and

unascertained body of persons.

It would be convenient at this stage, however, to note in

slightly more greater detail the observations of Lord Radcliffe in

Laxmidhar Misra (supra) as below :

"6. The doctrine of lost grant gives no firmer basis for

the appellants' case. This doctrine originated as a

technical device to enable title to be made by

prescription despite the impossibility of proving

"immemorial user". By English common law

prescription had to run from time immemorial which by

convention began in the year 1189. If it was possible

to demonstrate that the user in question, though ancient,

originated since 1189 the proof of title by the

prescription of immemorial user failed. To get round

this difficulty, Judges allowed or even encouraged

juries to find that the right in question, though less

ancient than 1189, originated in a lost grant since that

date. Thus the right acquired the necessary legal

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origin. But such a right just as much as an easement,

had to be attached to and to descend with an estate :

moreover, 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 under English law. 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 are

no admissible grantees. In fact the doctrine of lost

grant has no application to such rights as those of the

inhabitants of a particular locality to continue an

ancient and established user of some piece of land."

Turning attention on to the fact situation of the matter in issue

be it noted that the present litigation has been between the Barai

community being the proprietors of certain tanks in the village

known as Mathurasagar and the fishing community called the

Dhimars of Ramtek, which happen to be represented by Tulsi Ram

& Ors., being the appellants herein. It is not in dispute that there

was a group of five tanks in this village, water from which was

drawn for the purpose of irrigation by the Barais who had betel

leaves plantations. These tanks at one time presumably were also

a good fishing ground and fish used to be caught and collected by

the fishermen community in the neighbourhood. The tanks are

artificial and as the record goes to show and suggest, were

privately owned. As both the communities were interested in the

maintenance of the tanks and water therein for their benefit, some

arrangements seem to have been arrived at and the same came to

be recorded and noted in a document popularly described as

Wajib-ul-arz having statutory recognition under the C.P. Land

Revenue Act. Significantly, both parties to the litigation presently

under consideration admit that arrangement which prevailed

between them since a long time, first made its appearance in the

Wajib-ul-arz in the year 1862 at the time of settlement of the year

1862-63. This continued in the next settlement of the year 1892-

93. Then again in the third settlement year 1914-15 and

subsequently also in 1942-43.

On the factual score it further appears that in the year 1951, the

Madhya Pradesh Abolition of Proprietary Rights Act came into

force and the rights of Malguzars-proprietors in these lands were

extinguished. In some cases, however, as provided under the Act

certain rights were conferred upon the Malguzars and it is not in

dispute that so far as the present tanks and lands are concerned, the

tanks were treated as of the ownership of Barais.

In the year 1954, the present plaintiffs commenced a suit

being Civil Suit No.10A/54 praying for an injunction to restrain

the defendants being the Appellants herein from catching fish in

the said tanks and also for damages. When that suit reached the

stage of second appeal in the High Court being Second Appeal

No.398 of 1959, it was allowed to be withdrawn with liberty to file

a fresh suit. The present suit is a sequel to the suit which was

withdrawn and was filed on 9.8.1963. Leave under Order 1 Rule

8 Civil Procedure Code was obtained and the suit thereafter was

proceeded with and contested in a representative capacity - the

plaintiffs being the Barais and the defendants, the Dhimars or

fishermen of Ramtek.

On a perusal of the pleadings it appears that the defendants

(presently the appellants herein) have been rather candid with their

defence to the effect that question of there being any permission

for the catch and collection of fish or its removal, would not arise

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since such activities were within their own rights by reason of the

grant. It is on this score, the High Court in the second appeal

commented to the effect : "It is significant to note that the written

statement does not show or claim that the right to catch fish was

claimed only on behalf of some Dhimars or some Dhimar family

only and not on behalf of all Dhimars of Ramtek." The suit

however, came to be decided in favour of the defendants upholding

the right in terms of the grant.

Aggrieved by the decision, the plaintiffs came in appeal before

the District Judge, Nagpur in Civil Appeal No.308/65 and the

learned District Judge, however, also was pleased to dismiss the

appeal and affirmed the judgment and decree passed by the learned

trial Judge. The first appellate Court held that the right to catch

and carry away fish from the tanks was "profit-a-prendre" and that

"defendants and their ancestors have been enjoying the right to

catch fish in the suit tanks uninterruptedly." In fine, the first

appellate Court stated : "The right of fishing in the suit tanks is

being enjoyed by the Dhimars uninterruptedly for over 100 years

and in view of long uninterrupted user, it could be presumed that

the origin of the right of the Defendant was in a grant which cannot

now be traced." In other words, according to the learned

Appellate Judge, the nature of the right was the right to share in the

profit-a-prendre which was in an immovable property and was a

permanent grant made in favour of Dhimars. There was,

therefore, no question of any licence being granted by the plaintiffs

and the suit, therefore, in his opinion was rightly dismissed.

Accordingly, the appeal was dismissed and the judgment and

decree passed by the learned trial Judge was confirmed.

The matter, however, did not rest there and the plaintiffs

moved the High Court in second appeal, wherein the rights of the

defendants stand expressly negatived and hence the appeal before

this Court under Article 136 of the Constitution upon the grant of

leave.

Before proceeding with the matter further the conclusion as

recorded by the High Court in paragraph 64 of the impugned

judgment ought to be noticed.

"The result, therefore, is that the defendants

Dhimars of Ramtek cannot claim this right to fish in the

Mathurasagar tank either by way of a lost grant or by

way of custom. A lost grant of this kind cannot be

presumed as existing or could have been made in

favour of an indefinite and indeterminate body of

persons being inhabitants of a particular place capable

of increase and decrease. The right cannot also be

considered and recognised, for such a right would be

unreasonable, being destructive of the subject matter

itself if exercised, and if could be exercised as

permitted and to that extent. If an indefinite body of

person, and if a large number of persons were

authorised to exercise such a right and if there was no

restriction of whatever kind, then a customary right

which could produce such a result must be deemed to

be unreasonable, and therefore, unenforceable in a court

of law. There has been no claim of this right to fish

either as a lease or as an easement. The observation

above and a reference to the aforesaid authorities would

clearly also go to show that such a right cannot be

claimed either by way of easement or as a tenancy right

much less by an indeterminate body of persons

belonging to a certain community or from a certain

area. Consequently, the Second Appeal must succeed.

The decision of the Courts below is set aside and the

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plaintiffs suit decreed with costs."

Mr. Uday Umesh Lalit, Advocate, appearing in support of the

appeal have been rather vocal as regards the factum of Wajib-ul-

arz, which in fact recognises the right of the defendant (Appellants

herein) not as a licensee but as a definite and ascertained body of

persons having irrevocable hereditary right from generation to

generations absolutely and upon reference thereon contended that

the effect of such documentary evidence cannot be wiped out or be

rendered a nullity without a declaration to that effect by the Civil

Court. It has been his definite contention that Wajib-ul-arz cannot

but be termed to be a record of rights. Alternatively, it is Mr.

Lalit's further submission that at least the appellants cannot be

decried of their right as Haqdars and in the second alternative Mr.

Lalit contended that it is a right based on custom from time

immemorial as such question of interference by the High Court in

second appeal would not arise. Lastly, Mr. Lalit contended that it

is not an unascertained body but a class determinate.

We shall deal with the submissions presently, but before so

doing, the observations of the Judicial Committee of Privy Council

in Bholanath Nundi & Ors. v. Midnapore Zemindary Company

Ltd. & Ors. (LR (31) Indian Appeals 75) on which very strong

reliance has been placed by Mr. Lalit, ought to be noticed. Lord

Macnaghten, speaking for the Bench stated :

"The case, as presented by the plaintiffs, on the face of

it and in substance, seems simple enough. It appears to

their Lordships that on proof of the fact of enjoyment

from time immemorial there could be no difficulty in the

way of the Court finding a legal origin for the right

claimed. Unfortunately, however, both in the

Moonsiff's Court and in the Court of the Subordinate

Judge, the question was overlaid, and in some measure

obscured, by copious reference to English authorities,

and by the application of principles of doctrines, more or

less refined, founded on legal conceptions not altogether

in harmony with Eastern notions. The result is that,

although the decree appear to be justified by the main

facts, which both the lower Courts held to be

established, it is impossible to say that the judgments

delivered are entirely satisfactory."

It is on this judgment, Mr. Lalit appearing in support of the

appeal, has been rather emphatic on to his submission that the right

did not exist in an unascertained family of Dhimars but among

certain families of which the appellants are the representatives and

since it was given to a certain number of persons, question of there

being any infraction of any law does not arise and the same ought

to be treated as in the nature of lost grant. The existence of such a

right for such a long period of time for over a century was enjoyed

by the group of Dhimars continuously and uninterruptedly and the

Barais also did obtain 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. Mr. Lalit further contended that a Khasra record

available with the State depict this long and uninterrupted user of

the tanks to the exclusion of all others and question of

dispossession from the same would not arise : the revenue record

is a record of right capable of being enforced and enjoyed by a

specified group of people though unascertained. By reason of the

uninterrupted user of the tank, a right stands conferred on to the

appellants herein as a customary right and thus enforceable.

In the judgment impugned the issue pertaining to the

Dhimars of Ramtek and the particular connotation to be attributed

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thereon has been dealt with in the manner set out hereinbelow.

The High Court in the judgment impugned upon consideration of

the submissions as recorded in the plaint as well as the written

submissions stated as below :

"In the face of the aforesaid statement in the

written statement understood in the context of the plaint

laid, which refers to the defendants as All Dhimars of

Ramtek", I do not think it possible for Mr. Padhye to

contend that the right was claimed by the named

defendants only, and not by all Dhimars of Ramtek or

by these defendants and not as representing all the

Dhimars of Ramtek. As I pointed out, the defendants

did not dispute in their written statement that they

cannot be representing all the Dhimars of Ramtek as

their interest do not coincide. It is also not contended

that some Dhimars from Ramtek are excluded."

The High Court thereafter, however, went on to observe that in

the very nature of things such a right would be a matter of contract

and would not be classified. As a customary right, the same can

never be claimed since it is a right in respect of a contract between

the Barais and Dhimars relating to certain property, entered into

between the parties at that point of time and it is on this score

further the High Court negated the submission that the right existed

or was granted to only some of the Dhimars from the village. The

High Court further observed :

".. That this was continued and was to run from

the period of one settlement to the other. Such a

concept necessarily presupposes a contract being

renewed from time to time and the rights of the

contracting parties in accordance with the terms of the

contract itself and lapsing after the period of contract.

No such suggestion appears at any time anywhere in the

entire conduct and trial of this suit. One must,

therefore, proceed on the footing, as was done in the

Courts below that the dispute between the parties was

in respect of rights which were claimed by one

community against the proprietors of the tanks

represented by some members of other community. It

was in that sense a representative suit against the

Dhimars brought by one of the numerous holders of

interest in the tanks of the Barais in a representative

capacity. That disposes of the first contention which

was raised by Mr. Padhye."

Incidentally, be it noted that the first appellate court came to a

conclusion that even if a right cannot be accepted as can be

acquired by custom in a fluctuating body of persons, it cannot be

said that the villagers of a particular community in a village can be

regarded as a fluctuating body of persons. The High Court

negated that submission and we do feel it expedient to record our

concurrence therewith since there seems to be ample justification

therefor. The decision of the Calcutta High Court in Asrabulla

(supra), which stands subsequently approved by this Court in Braja

Sundar (supra), the law seems to be well settled that 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.

This Court in Bihar v. S.G. Bose (1968 (1) SCR 313) stated:

"A claim in the nature of a profit-a-prendre

operating in favour of an indeterminate class of persons

and arising out of a local custom may be held

enforceable only if it satisfies the tests of a valid

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custom. A custom is a usage by virtue of which a class

of persons belonging to a defined section in a locality

are entitled to exercise specific rights against certain

other persons or property in the same locality. To the

extent to which it is inconsistent with the general law,

undoubtedly the custom prevails. But to be valid, a

custom must be ancient, certain and reasonable, and

being in derogation of the general rules of law must be

construed strictly. A right in the nature of a profit-a-

prendre in the exercise of which the residents of locality

are entitled to excavate stones for trade purposes would

ex facie be unreasonable because the exercise of such a

right ordinarily tends to the complete destruction of the

subject-matter of the profit. It is said in Halsbury's

Laws of England, 3rd Edn. Vol.11, Art. 324 at p. 173 :

"If a right in alieno solo amounts to a

profit-a-prendre it cannot be claimed under

an alleged custom; for no profit-a-prendre

and therefore no right of common can be

claimed by custom except in certain mining

localities; nor can there be a right to a profit-

a-prendre in an undefined and fluctuating

body of persons."

The view as appears stands supported by a considerable

body of authority in a long catena of cases. In Lord Rivers v.

Adams (L.R. 3 Ex. Div. 361) it was held that the right claimed by

inhabitants of a parish to cut and carry away for use as fuel in their

own houses faggots or haskets of the under-wood growing upon a

common belonging to the lord of the manor is a right to a profit-a-

prendre in the soil of another : such a right cannot exist by custom

prescription, or grant, unless it be a Crown grant which

incorporates the inhabitants. The House of Lords in Harris and

Another v. Earl of Chesterfield and Another (1911 A.C. 623) held

that a prescription in a que estate for a profit-a-prendre in alieno

solo without stint and for commercial purposes is unknown to the

law. In the case of Harris and Another (1911 A.C. 623) the

freeholders in parishes adjoining the river Wye were in the habit of

fishing a non-tidal portion of the river for centuries, openly,

continuously, as of right and without interruption, not merely for

sport or pleasure, but commercially in order to sell the fish and

make a living by it. The riparian proprietors claiming to be

owners of the bed of the river brought an action of trespass against

the freeholders for fishing. It was held by a majority of the House

of Lords that the legal origin for the right claimed by the

freeholders could not be presumed and that the action by the

plaintiffs was maintainable.

Mr. Bobde, however, contradicted the basic submission of

Mr. Lalit and contended :

A body of persons, which is indeterminate and fluctuating

by reason of births and deaths, influxes and effluxes, can neither be

the recipients of a grant nor claim a customary right to enter upon

and take away profit-a-prendere in alieno solo (Latin for on

another's land and in French the equivalent term is 'en autre

soile').

Mr. Bobde further made a sharp distinction between a

customary right to profit-a-prendere for commercial purposes from

that of home use or sport, and the same is unknown to law.

In India, Mr. Bobde contended further that under the Easement

Act, 1882, prescription of easements is permissible under Section

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15. An easement may include profit-a-prendre, but not profit-a-

prendre in gross i.e. where there is no dominant heritage for which

there is corresponding servient heritage. The profit-a-prendre in

gross in English law flows from the English common law and the

Prescriptions Act, 1832. As the customary rights to other profit-

a-prendre or other easements in India, it will be necessary to prove

a legal and valid local custom and to be a legal and valid custom in

relation to profit-a-prendre, a custom alleged must above all, be

reasonable. Whether the exercise of a right claimed is by a body

of persons which can grow or change indefinitely and which is not

capable of having a succession in any reasonable sense of the term,

or where the exercise of the right tends to destroy the subject

matter of the right, the alleged custom is ex-facie unreasonable and

cannot be sustained in law. It is in this context that Mr. Bobde has

taken recourse to Section 47 of the Abolition Act and Section 225

of the Land Revenue Code and stated that the same are the legal

filters through which an alleged practice/contract must pass to be

even claimed as a custom. Once a claim is made, scrutinised and

rejected by the competent authority and no suit is filed by the

aggrieved party, it is not open to that party to allege and prove the

custom in a Court of Law as a defence to a suit.

It was next contended that the vast and vital difference

between a suit and a defence, in the context of Section 225 of the

Land Revenue Code, is that a suit by an aggrieved party can

reopen the question closed by the order under the statute. Once

limitation for suit expires, the extinguishment of remedy

extinguishes the right ubi jus ibi remedium and the other party

is entitled to act on the basis of the order as a final and conclusive

decision on the existence or otherwise of the alleged custom.

When the successful party goes to Court to injunct or evict a

trespasser, it is not open to the Defendants then to reagitate the

question whether there was a customary right.

The public policy reflected in the post-independence laws

cannot be allowed to be defeated, the policy being that 'rights in or

over land' which is a State subject in Entry 18, List VII, fall within

the exclusive domain of the State and once the State authorities

have determined the existence or absence of those rights, finality

must attach to such determination in the public interest and the

interests of justice, submitted Mr. Bobde. The object of the policy

also is to prevent long litigation spanning decades or generations

on a subject that is made the exclusive and final domain of statutes,

unless of course the aggrieved party goes to Court in accordance

with Section 225. It is trite law that when a law says that a thing

is to be done in a certain way, it must be done in that way alone

and no other. The Courts' sole function-indeed its "sworn duty

and trust" (De Grey CJ in the Duchess of Kingston's case (1775-

1802) All E.R. Rep. 623 at 628 C) is to uphold and administer

the law and do justice in accordance therewith.

Mr. Bobde further contended that the alleged grant was never

in favour of individuals. No such plea was ever raised in the

lower Courts which decided the suit and first appeal. The Courts

proceeded on the footing that it was a representative action. If the

Wazib-ul-arz of 1942-43 is construed as showing a grant having

been in favour of the individuals mentioned in Ex.117 (viii), it is

plain that it was not in favour of their families, heirs or

descendants in perpetuity, and must therefore expire with the

expiry of individuals mentioned therein. If it is construed as a

grant in favour of, or custom 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 Written Statement. itself wherein, at p. 142, the

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Defendants state that they 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. 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 permissive user or activity but as of

right, and in the bargaining process, even have the Barais maintain

the tanks for the Dhimars. As a matter of fact only a licence to

fish was granted and the same stands corroborated by the fact that

there was even consideration therefor viz. the amount that was to

be paid by the fishermen. It was used for the maintenance of the

tanks not for the sake of the fishermen but for the purposes of the

owners; for utilizing the tanks for cultivating betel leaves which

was and is their occupation. This was particularly so because the

body of Barais was large in fact, larger than that of Dhimars

and it was in their common interest that the tanks which were the

sole source of water for cultivation for the betel leaves were

maintained. For that reason alone, fishing was allowed for a price.

On the wake of the above discussion, we do not feel it

inclined to interfere with the order of the High Court. The appeal,

therefore, fails and is dismissed. No costs.

Re CA No.645 of 1981

Admittedly, the appellants herein do not deal in fish:

whereas the Dhimars do deal with the same!! Strict enforcement

of individual rights will create a situation not only of further

stiffening of attitude of each of the parties towards the other but

this may lead to economic instability which the Dhimars may

suffer: It is on this score Mr. Bobde in his usual fairness suggested

that some such orders should be passed so as to allow the parties to

co-exist and avoid economic deprivation. We place on record our

appreciation therefore and thus direct that the fishing rights be

auctioned and the rights thereof be conferred on to the highest

bidder.

It is further ordered that till the auction as directed above,

takes place, mesne profits as determined by this Court shall

continue to be paid.

The appeal thus stand disposed of as above. No costs.