Ghosh and Geidt, JJ.
1. These three appeals arise out of three suits brought by throe different co-sharers in the zemindari Parganah Pukhoria for recovery of possession of their respective shares in three dobas, which have been left in the property belonging to the defendant by the recession of the river Brahmaputra. That river is a navigable river which was settled, or rather the jalkar rights in which wore settled, by Government with the plaintiffs’ predecessor many years ago. We take it that the plaintiffs, by virtue of the settlement conferred upon them, are entitled to exercise the right of fishery in the said river Brahmaputra wherever it flows within the limits prescribed in the settlement itself. It happened that the river at one time occupied the site where the dobas now stand, but, as wo have already mentioned, (he river has receded and gone towards the east, and the claim is for the said dobas, they being regarded as parts of the river. The cause of action, as alleged in the plaint, arose in the year 1305 B.S., when the defendant, according to the plaintiff’s case, wrongfully took possession of the dobas in question by resisting the plaintiffs from fishing in the same. The learned Judge of the Court of Appeal below has found that, in the year 1305 as also in the years 1306 and 1307 up to the end of Falgun, the channel between the main river and these dobas was a flowing channel, but the defendant, as alleged by the plaintiffs, took possession of all these dobas in the year 1305. The District Judge has also found, upon the evidence in the case, that so far as the small doba No. 2 described in the sketch map prepared in the case is concerned, there was an open communication between that doba and the river even after the year 1307; and he has held that the plaintiffs are entitled to recover possession of the same subject to a certain qualification, to which we shall hereafter refer. And ho has further found, in regard to the other dobas described in the sketch map as small doba No. 1 and the big doba that the communication between them and the main river was completely stopped in the month of Chait 1307, and being of opinion that the right of fishery in the plaintiffs could only exist if there was a communication between the dobas in question and the main channel of the river at all seasons of the year, he has not declared the plaintiffs’ right to either of these two dobas, but simply given a decree for damages in respect of the years 1305, 1306 and 1307 up to the month of Falgoon. The main contention that has been raised before us by the learned Vakils on behalf of the plaintiffs appellants is that the learned Judge of the Court below was in error in holding that it is only when the communication between the dobas and the main channel of the river is continuous during all Reasons of the year that the right of fishery can exist in the plaintiffs.
2. The learned Judge, after referring to certain cases mentioned in his judgment, lays down the law as follows: “The rule or principle to be gathered from these decisions appears to be that, if a river shifts its course, leaving lakes, dobas or sheets of water in its old bed, the grantee of the exclusive right of fishery in the river retains that right over such lakes and dobas go long as these latter remain in communication with the main channel at all seasons of the year.” We think, upon consideration, that the learned Judge is right in the conclusion that he has arrived at upon examination of at least two of the cases referred to in his judgment. The first case referred to is the case of J.J. Grey v. Anund Mohan Moitro (1864) W.R. 108. It may be said, as it has been said before us, that the precise question which has been raised in these appeals did not come directly for consideration before the learned Judges, who decided that case; but still they were called upon to consider the law upon the subject generally, and they expressed themselves after a review of the authorities in the matter as follows: “Applying these principles to the present case, if the river simply changed its course and there is nothing to modify the conclusion which the Court ought to draw from that simple fact, the old dry course of the river must be taken to have become private property. And as incident to and part of the same, the owner of the soil is entitled to all bheels and ponds, gulfs or damoores in which water remains, but which do not communicate with the river except in the time of floods, and he could have claimed a settlement with the Government in respect of any jalkar in the same. The right of the defendants to the fishery in the water in question, being merely granted out of, and a part of, the right of the Government to the river, can no longer exist, where the right of the Government itself is gone,” and so on. The rule of law laid down in this case was adopted in the later case of Krishnendro Roy Chowdhry v. Sumo Moyee (1873) 21 W.R. 27, and in a more recent case, Tarini Churn Sinha v. Watson & Co. (1890) I.L.R. 17 Cale. 963, the principle laid down in the two cases to which we have just referred was approvingly quoted. No sufficient reason has been shown to us why we should depart from the rule of law laid down in these cases. Upon the finding of the learned Judge of the Court below, to which we have already adverted, the communication between the main channel of the river Brahmaputra and the second and the third dobas, i.e., the small doba No. 1 and the big doba, completely ceased in the month of Chait 1307 antecedent to the institution of the suit, which we may here mention was on the 24th Aswin 1308, and it seems to us that, if the communication was stopped so completely, the dobas could not be regarded as any part of the river Brahmaputra, so that notwithstanding the recession of the river, the jalkar rights could be claimed therein. The learned Vakil for the appellants has, however, called our attention to the report of the Amin who was deputed to hold an investigation in the locality tending to show that there was a restoration of some communication in the month of Chait 1308. But the matter of this report has been discussed by the learned Judge of the Court below, and we are unable to say that there was such a restoration of communication between the main channel of the river and the dobas as to justify the Court in giving judgment in favour of the plaintiffs.
3. Turning once more to the small doba No. 2, we observe that the learned Judge of the Court below has given a declaration in favour of the plaintiffs in the following words: “Of the right in the first-mentioned small doba, they will recover possession, such possession to continue so long as communication between this doba and the main channel of the river remains open at all seasons of the year.” Now upon the cause of action, as afforded to the plaintiffs by the act of the defendant, and upon the finding of the District Judge himself, the plaintiffs in this case are entitled to a decree absolute for recovery of possession, without the qualifying words which occur in the last portion of the declaration to which we have just referred. What may be or may not be the rights of the parties hereafter, if the communication between the doba No. 2 and the main channel of the river Brahmaputra be closed is a matter with which the Courts are not concerned in the present case. We therefore direct that the words “such possession to continue so long as communication between this doba and the main channel of the river remains open at all seasons of the year” as occurring in the said declaration be struck out.
4. Then as regards the other two dobas, upon the findings come to by the Lower Appellate Court, the declaration that has been given in this case is perfectly right; but it must be understood that, while we affirm such declaration, it is upon the basis of the findings that have been come to in this case, namely, that continuous communication throughout the year between the main channel of the river and the doba No. 1 and the big doba has come to an end. And it must also be distinctly understood that we do not decide in this case any question as to what may be the rights of the parties, if hereafter there be a continuous communication between the main channel of the river and the said two dobas. We direct that the decree of the Court below be modified in the terms that we have just indicated. The respondent is entitled to his costs in these appeals.