RAJA BRAJA SUNDAR DEB Vs. MONI BEHARA
LAWS(SC)-1951-3-10
SUPREME COURT OF INDIA (FROM: PATNA)
Decided on March 27,1951

RAJA BRAJA SUNDAR DEB Appellant
VERSUS
MONI BEHARA Respondents


Referred Judgements :-

ASRABULLA VS. KIAMATULLA HAJI CHAUDHURY [REFERRED]
LAKSHMIDHAR MISRA VS. RANGALAL [REFERRED]



Cited Judgements :-

SAROJ KUMAR BOSE VS. JATINDRA NATH MONDAL [LAWS(CAL)-1963-4-10] [REFERRED TO]
NANI GOPAL SARKAR VS. SITANATH SARKAR [LAWS(CAL)-1965-5-20] [REFERRED TO]
GANESHI DEVI RAMI DEVI CHARITY TRUST VS. COMMISSIONER OF INCOME TAX [LAWS(CAL)-1968-6-32] [REFERRED TO]
MUHAMMAD ALIKHAN SAHIB VS. S K VENKATARAMANAYYAR [LAWS(MAD)-1952-3-3] [REFERRED TO]
KHANDESWAR CHAMPATI VS. GOKULANANDA JENA [LAWS(ORI)-1964-5-4] [REFERRED TO]
MOHUR ALIES MOHAN LAL DEY VS. SUDHIR CHANDRA DEY [LAWS(CAL)-1984-4-28] [REFERRED TO]
LAKSHMINDRA THEERTHA SWAMIAR OF SRI SHIRUR MUTT AND VS. COMMISSIONER HINDU RELIGIOUS ENDOWMENTS MADRAS [LAWS(MAD)-1951-12-4] [REFERRED TO]
STATE OF BOMBAY VS. LAXMAN SAKHARAM PIMPARKAR [LAWS(BOM)-1959-8-12] [REFERRED TO]
SHANKARRAO SITARAMJI SATPUTE VS. ANNAPURNABAI [LAWS(BOM)-1960-7-9] [REFERRED TO]
NIRMAL DAS VS. PANCHANAN BANERJEE [LAWS(CAL)-2000-7-20] [REFERRED]
JASWANT KAUR VS. STATE OF PUNJAB [LAWS(P&H)-2012-9-85] [REFERRED TO]
KHALLI SAHU VS. STATE OF ORISSA [LAWS(ORI)-2012-5-38] [REFERRED TO]
KAMLA PANDEY AND OTHERS VS. RAGHUBIR DUSADH AND OTHERS [LAWS(ALL)-1965-5-17] [REFERRED TO]
BANERJI MEMORIAL CLUB VS. TALUK TAHSILDAR TRICHUR AND ORS. [LAWS(KER)-2015-11-93] [REFERRED TO]
SHAMBOO NATH TIKOO VS. S GIAN SINGH [LAWS(SC)-1995-6-2] [REFERRED TO]
TULSI RAM VS. MATHURA SAGAR PAN TATHA KRISHI [LAWS(SC)-2002-11-32] [REFERRED TO]
RAMESHCHANDRA WAHIWATDAR SUBSTITUTED VS. NARAYAN [LAWS(SC)-2003-8-9] [REFERRED]
MADAYI KUNHIRAMAN NAIR AND ORS. VS. THARAMEL KUNHABDULLA AND ORS. [LAWS(KER)-2015-7-198] [REFERRED TO]
BANERJEE MEMORIAL CLUB VS. TALUK TAHSILDAR [LAWS(KER)-2015-11-246] [REFERRED TO]
M.SIDDIQ VS. MAHANT SURESH DAS [LAWS(SC)-2019-11-30] [REFERRED TO]


JUDGEMENT

- (1.)The dispute in this appeal is between the fishermen residing nine villages at Killa Marichpur, a permanently settled zamindari in the Puri Collectorate (Orissa State) and the Raja of Au1, the owner of seven annas, seven pies, and ten karants share in the zamindari. The other sharers in the zamindari are defendants 19 to 29. Within the ambit of the estate flows "Davi Nadi," with its several branches and tributaries. Three fisheries " Madhurdia, " " Marichpurdia " and " Maladia " appertain to this estate. The controversy in this appeal concerns the fishery known as the " Madhurdia " fishery.
(2.)In the year 1936, three suits Nos. 62, 63 and 64, were brought by the Raja of Aul against defendants 1 to 18 on behalf of themselves and other fishermen residing in the nine villages at Killa Marichpur for a declaration in respect of his rights in the three above mentioned fisheries. All these suits were decided in his favour by the trial Court. The defendants preferred no appeal in Suits 63 and 64, with the result that the controversy regarding the two fisheries involved in these two suits stands concluded by the decision of the trial Court. In Suit No. 62 of 1936, however, the defendants preferred an appeal to the High Court and it was partially allowed. The decree of the trial Judge in favour of the plaintiff was modified and it was held that the defendants had exclusive rights as tenants at will to fish in this fishery during the Hilsa season (Margasir to Baisakh) and that the plaintiff was not entitled to a declaration or an injunction in respect of that period. The plaintiff thereupon obtained leave to appeal to His Majesty in Council and that appeal is now before us for decision.
(3.)It was alleged in the plaint that the proprietor's of Marichpur Zamindari are the exclusive owners of the fishery in question and have all along been exercising their right of catching fish in the same sometimes by employing fishermen and sometimes by letting out the fishery to them, that the plaintiff has ever since his acquisition of the zamindari interest been the owner in khas possession of the fishery right according to his share in the zamindari, that the defendants- fishermen were never in possession of the said fishery, nor have they any right to it, that in the year 1918 they started proceedings under section 145, Criminal Procedure Code, to create evidence of their possession but in spite of those proceedings the plaintiff continued to be in possession of the fishery and has been catching fish by employing fishermen, that by taking advantage of the fact that there are several cosharers in the zamindari and there is mismanagement of the estate, the defendants wrongfully and unlawfully trespassed on the fishery from time to time between May 1933 and November 1933 and disturbed the plaintiff in the enjoyment of his rights and have caused loss to him and his cosharers by catching large quantity of fish without any leave or licence. On these allegations, the plaintiff claimed a declaration to the effect that defendants 1 to 18 in their personal and representative capacity have no right or title in the fishery known as "Madhurdia" fishery or to the fishery in the southern portion of the area recorded as the river block, Risilo and Husgarh. Prayer was also made for the grant of a perpetual injunction restraining the defendants from fishing in the above fishery and in the above mentioned blocks and for the award of a sum of money by way of damages and on account of price of fish.
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