Decided on March 25,1946


Referred Judgements :-



Macmillan, J. - (1.)THIS appeal comes before their Lordships from the Calcutta High Court in a suit in which the respondent, the Secretary of State for India in Council, is the plaintiff. He claims a decree in his favour declaring his title to seven jalkars or fisheries which in his plaint he describes as "component parts" of his fishery known as Jalkar Gangapath Islampur (southern portion ). His claim was originally to nine jalkars but has been restricted to seven.
(2.)IT is not disputed that the respondent as in right of the southern portion of Jalkar Gangapath Islampur is entitled to the fishings in some fifty miles of the river Ganges, which is a public navigable river. Nor is it disputed that he is entitled to all subsidiary fishings which the law recognises as " adjuncts " of his fishery in the Ganges. But it is denied by the appellants, who are certain of the original defendants in the suit, that the respondent has any right to the seven jalkars now claimed by him whether as " adjuncts" of his fishery in the Ganges or under any other title. The appellants who have contested the respondent's claim before their Lordships are the proprietors of an eight annas share of Pergunnah Ekbarabad, within whose limits the disputed fisheries lie, and they maintain that to the extent of their proportion the disputed fisheries belong to them as the owners of the underlying solum. The Secretary of State succeeded in his claim both before the Subordinate Judge and in the High Court.
A description of the situation and geographical features of the jalkars in question is necessary in order to appreciate the problem. The Pergunnah Ekbarbad is an estate lying between a river known as the Bhagirathi and a portion of the stretch of the Ganges in which the respondent admittedly owns the fishings. The Bhagirathi was originally not an independent river but was a diversion of part of the waters of the Ganges which it rejoined lower down. Subsequently, and at any rate before 1867, the Bhagirathi at its upper end ceased to be connected with the Ganges and became an independent river. Instead of flowing directly into the Ganges, as it originally did, it became united with another river called the Pagla and the united stream flows into the Mahananda river which in turn joins the Ganges. The Bhagirathi was at one time navigable but has ceased to be so. One of the seven jalkars claimed by the respondent is in a three-mile stretch of the Bhagirathi where it borders Pergunnah Ekbarabad some distance above its junction with the Pagla. Another of the disputed jalkars is in a channel between the Bhagirathi and the Pagla. The five other jalkars are bils, that is, ponds or swamps. Four of them lie at distances of from half a mile to two miles from the Bhagirathi with which in the rains they are connected by channels or ditches and the fifth is connected by a channel with the Pagla.

The capricious habits of Indian rivers, due to the conformation of the land and the alternate extremes of dry and rainy seasons, result in frequent changes in their courses. Areas at one time covered (with water dry up and areas of previously dry land become submerged, while connections with associated sheets of water open or close. Such alterations necessarily affect the fishing rights and have given rise to difficult legal questions which have been much litigated. It may now be taken as settled that in general the fishing rights in a river follow the river and that subsidiary fishing, rights in waters associated with a river fishery, or " adjuncts " as they have come to be called, may vary with the changes in the river itself. In order that the fishings in any waters may be claimed as an " adjunct" of a river fishery these waters must be in continuous connection with the river throughout the year, in the dry season as well as in the wet season. Waters which cease to be continuously connected with the river cease to be " adjuncts" of it and the fishings in such disconnected waters cease to be part of the river fishery, and pass to the owners of the solum. On the other hand the owners of a river fishery acquire right to the fishings in new areas which come to be covered with waters connected with the river and the owners of the submerged solum must recognise the creation of such fishing rights within their estates. Connections between existing sheets of water and the river may also open or close with consequent effects upon the fishing rights. There may thus be loss and gain as between the owners of the solum and the owners of the river fishery as the physical circumstances alter. Such their Lordships find to be the law as established after some fluctuations by the reported cases including the decision of this Board delivered by Lord Sumner in Srinath Roy v. Dinabandhu Sen (1914) L. R. 41 I A. 321: s. c. 16 Bom. L. R. 901.

(3.)NOW it is manifest from a perusal of the respondent's plaint that he came into Courts with a case based on the contention that he was entitled to the seven disputed jalkars as " adjuncts " or, as he pat it, "component parts" of his fishery Jalkar Gangapath Islampur, that is of his fishery in the Ganges. Indeed in a petition which in the course of the proceedings he presented to the Court he expressly stated that "the jalkars in suit have-been claimed in the suit as component parts of the Jalkar Gangapath Islampur " and asked leave to put forward an alternative argument should it be found that the jalkars in suit "can no longer be considered as connected with the Ganges. " This shows the meaning which in his plaint the respondent attached to the words " component parts. " When the respondent's averments are examined, it appears that he nowhere claims that the water channel between the Bhagirathi and the Pagla or any one of the five bils is now connected throughout the year with the Ganges. On the contrary he avers only that they " remain connected with the Ganges for about three months every year during the rainy season. " If these six jalkars, as he avers, are connected with the Ganges only for part of the year, the respondent cannot succeed in his claim to them as " component parts" or " adjuncts" of his fishery in the Ganges, in view of the law as their Lordships have above defined it. As regards the three-mile stretch of the Bhagirathi river the respondent puts his case in his plaint somewhat differently. He states that at its source the Bhagirathi is connected with the Ganges only for about two-and-a-half months in the year in the rainy season. This would not make the fishings in the Bhagirathi an " adjunct" of his fishery in the Ganges. But he goes on to say that the Bhagirathi remains connected with the Ganges throughout the year because its waters flow into or ultimately find their way to the Ganges. This will plainly not do. The Bhagirathi is now a tributary not a diversion of the Ganges and it is not even a direct tributary, as has been already explained. Once it is ascertained that the Bhagirathi is an independent tributary of the Ganges, the fishings in it cannot in law be regarded as an " adjunct" or component part of the fishery in the Ganges. Counsel for the respondent very properly admitted that he could not contend that a right of fishing in a river included the right to fish in all its tributaries as " adjtuncts ". Such a connection if admitted would lead to manifest absurdity.
The result is that the respondent's case as tabled on record necessarily fails and that the judgment of the Subordinate Judge in his favour, so far as based on his finding that "the water of the Jalkars in dispute is still the water of the Ganges," although none of them is connected throughout the year with the Ganges, is erroneous.


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