TULSI RAM Vs. MATHURA SAGAR PAN TATHA KRISHI
SUPREME COURT OF INDIA (FROM: CALCUTTA)
MATHURA SAGAR PAN TATHA KRISHI
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Banerjee, J. -
(1.)Since the decision of this Court in Braja Sundar (Raja Braja Sundar Deb vs. Moni Behara and others, (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 vs. 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."
(2.)This Court further in Braja Sundar (supra) upon reference to a Bench decision of the Calcutta High Court in Asrabulla vs. 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.
(3.)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 origin. But such a right just as much as an easement, had to be attached to and to decend 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."
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