DARASURAM TOWN PANCHAYAT BY ITS EXECUTIVE OFFICER Vs. THANGARAJAN

JUDGEMENT

(1.) THE respondent is not represented. The unsuccessful plaintiff before the District Munsif, Kumbakonam, has filed this civil revision petition challenging the regularity and the propriety of the judgment and decree of the Court below rendered in exercise of its small causes jurisdiction. The petitioner -panchayat sold in public auction the right to catch fish in Ponniamman tank in Darasuram which admittedly vested in the panchayat. The defendant was declared to be the highest bidder. He worked upon the right so purchased by him in public auction, but failed to pay the auction amount in spite of demands. The panchayat therefore had to file the present action. The defendant in his written statement prayed for the dismissal of the suit on the ground that the tank was not delivered to him and that therefore he could not work his right at all. On the question of fact, the lower Court came to the conclusion that the defendant did work out such rights. On the other question whether the suit was cognisable by a Small Causes Court, the Court below was of the view that the amount claimed by the petitioner was in relation to a right in immovable property, as it was for the privilege of fishing in a pond within the jurisdiction of the panchayat and in that view it held that under the provisions of the Provincial Small Cause Courts Act, it had no jurisdiction to hear the suit. It, therefore, dismissed the suit, though it was of the view that the plaintiff -panchayat would certainly be entitled to the amount on facts. It is as against this judgment the present civil revision petition has been filed.

(2.) MR . Subramaniam, learned Counsel for the petitioner, hesitantly says that the right of fishing would not amount to a right in relation to any interest in immovable property or one intrinsically connected with any right in it. But the matter is settled by a decision of the Supreme Court in Ananda Behera v State of Orissa [1955]2SCR919, where the Supreme Court has said that the sale of a right to catch and carry away fish in specific portions of a lake over a specified time amounts to a licence to enter into the land coupled with the privilege to catch and carry away fish. They would characterise that right as a profit a prendre, which is legalistically known as a right in relation to immovable property. They would also distinguish an earlier decision of the Supreme Court in Firm Chhotabhai Jetkabai Patel and Company v. State of Madhya Pradesh AIR 1953 SC 108 , and would say that in India such a benefit has been held as one arising out of the land and as such it is immovable property. The lower Court was therefore right in having held that the plaintiff's cause of action arose out of a right or interest in immovable property.

(3.) THE only other question which survives in this revision petition is, whether a Court which finds that it has no jurisdiction to entertain a particular action, though, on merits, it finds in favour of the plaintiff, should at all times dismiss the action and has it no other right or duty to perform in such circumstances.