Full Judgment Text
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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.