1. This appeal is by the plaintiffs arising out of a suit for establishment of fishery lights and for perpetual injunction. The following diagram will show the subject-matter of controversy in this suit:
Pakuria Raikan Dighi. 3 2 Pirgunje. 1 Malda Bandaguat. 2. Parts 1 and 2 are in the bed of a navigable river Mabananda and No. 3 is a rivulet emerging from it. This suit relates to parts 1 and 3. 3. The present suit is a stage, let us hope the last, in a long drawn litigation dating from 1860. In that year the Government resumed under Act II of 1819 a portion of the jalkar over the river and its branches In 1861 Prasanna Kumar Boral, plaintiffs' predecessor, brought a suit against the Government in which he claimed his jalkar right on those waters. Defendants' predecessor, Alam Saha intervened and, assert' ed his raiyatan or raiyati rights but no order was passed on his application though the jama was reduced on that consideration.
4. The suit was compromised between Prasanna and the Government and his khas haich right in the jalkar was recognised. The terms “khas batch” and “raiyatan” were not denned in that suit and this has been the fruitful source of dispute between the parties. But it seems to have been conceded from the beginning that “khas baich” means Ashing wifh large nets. In 1862, Alam Saha brought a suit against Government and Prasanna for a declaration that Prasanna had only the khan baich right which was the right to fish with large nets such as bera in the jalkar, while he had the rest of the rights. The suit was decreed and Alam’s raiyati right and Prasanna’s khas baich right in the rivers were declared. In the suit also “khas baich” and “raiyalan were not” specifically defined but it was stated the former was the right to fish by large nets Nothing was said, however, as to the periods during which the parties were to exercise their respective rights. After this suit the parties well understood the extent of their respective rights and there was no dispute for about 40 years till 1899 when the defendants began to assert higher rights by creating kabuliyats and other documentary evidence, as has been found by the Judge, until in 1907 the dispute between the parties culminated in proceedings under Section 145, Cr.P.C., in which the plaintiffs were the first party and the defendants were the second party. On 19th July, 1907, the trying Magistrate passed the following order: “It has been satisfactorily proved that the first party held the right to fish in the area from bejoya dasami to 15th Chait by large nets only. The second party fish by small nets during the above period and both by large and small nets for the rest of the year. Anta, tagi, bansi and other similar contrivances are included in small nets. In the writ for delivery of possession the order was thus stated: “Therefore I determine and hold that, the said parties are in possession and, until they are evicted by lawful means, should be entitled to remain in possession and I order peremptorily that meanwhile the parties noted below may not be disturbed in their possession. The first party should be entitled to catch fish with large nets from bejoya dasami up to 15th Chaitra while the second party should be entitled to catch fish with small nets arid during the rest of the year the second party should be entitled to catch fish with large as well as small nets.”
5. Being dissatisfied with the above order, on 19th July, 1910, plaintiffs instituted a title suit being Suit No. 321 of 1910 in the Court of the Subordinate Judge at Rajshahi in which the reliefs claimed were (a) that it be declared that defendants have no right to catch fish with small nets and with any other means in the jalkar from the bejoya dasami day to 15th Chaitra, (b) that it be declared that the plaintiffs have the right to catch fish through the year in the said jalkar, (c) that a perpetual injunction be issued restraining the defendants from catching fish in the jalkars from the day after the bejoya dasami to 15fch Chaitra and for damages and mesne profits.
6. It should be noted here that parts 1 and 2 of the jalkdrs were the subject-matter of proceedings under Section 115, Cr.P.C. but in the civil suit the plaintiffs included all the three jalkars. The Subordinate, Judge by his order, dated the 18th February, 1914, dismissed the plaintiffs’ suit in respect of jalkar No. 2 and decreed it in a modified form in respect of jalkarsNos. I and 3. He held that the plaintiffs had “khas baich” rights in jalkars Nos. 1 and 3 from bejoya dasimi day to 15th Chaitra every year and the defendants had no right to fish in those two jalkars by small nets or other means during that period of the year, and a permanent injunction was granted accordingly. This decision was upheld by the District Judge in the first Appellate Court on 17th March, 1915, and by this Court on 16th May, 1917, in Appeal from Appellate Decree No. 1317 of 3 91b. By this decision the “khas baich” and raiyatan rights wore defined; the former was held to mean the right to catch fish with big nets which can be plied by 5 or 7 or a larger number of parts (workmen) and the latter as the right to catch fish by small nets which -can be plied by one or two parts.
7. The defendants obeyed the above decree and stopped the use of large nets till 1917 when they again started to interfere with the plaintiffs’ right as settled by the decree. The present suit was, therefore, brought in 1919 in respect of jalkars Nos. 1 and 3 for the following reliefs: (a) That it be declared that the defendants and their tenants have only the raiyatm rights in the disputed jalkars from 16th Chaitra to the day previous to the bejoya dasami day viz., the right to catch fish with small nets that can be plied by one or two men and not with bigger nets. (b) That la permanent injunction be issued restjainr ing the defendants from catching fish in the disputed jalkars by any big nets, and for other incidental reliefs. The suit was decreed in full by the Subordinate Judge in the trial Court. The defendants appealed to the District Judge who by his decree, dated the 6th August, 1923, dismissed the plaintiffs’ suit as regards part 1 of the fishery from Malda Bandaghat to Pirgunje and confirmed the decree of the trial Court as regards part 3, that is to say, from Pirgunje to Pakuria with the modification that the small nets to be used, by the defendants were defined to be those which require les3 than five men to wield. The plaintiffs have appealed and following points are urged on their behalf:
(i) Plaintiffs’ “khas baich” rights and defendants’ raiyatan rights were settled by the decree in the suit of 1862 and size of the nets to be employed by the parties respectively was settled in, the suit of 1910. These matters cannot, therefore, be reopened.
(ii) The District Judge has taken an erroneous view of the effect of the order under, Section 115, Cr.P.C. and has erred in holding that the plaintiffs’ suit is barred by limitation.
(iii) the learned Judge has erred in law in holding that under Order II, Rule 2, C.P.C. the plaintiffs’ claim for a declaration that the defendants have no right to use large nets during the latter’s period as regards part 1 of the fishery is barred.
(iv) The learned Judge is not justified in fixing the size of defendants’ nets as those which require less than five men to ply and not less than three as decreed by the Subordinate Judge.
8. In order to appreciate the grounds taken before us the learned Judge’s reasonings and findings have to be stated. On the questions of fact he has stated his, decision categorically as follows:
(a) Up to 1306 defendants never; used large nets.
(b) From 1306 the defendants began to claim use of large nets, the plaintiffs coming to know of it, dispute folio wed, culminating in the 145 case of 1907.
(c) The Section 145 proceeding being decided in favour of the defendants the defendants started now openly to use large nets during their period.
(d) The Subordinate Judge’s decision in 1914 induced the defendants to stop the use of large nets. But in 1917 they started again and in 1919 the present suit was brought.
There are two other findings of fact arrived at by the learned Judge which settled all the issues of facts raised in the suit. With regard to the meaning of the terms “khasbaich” and “raiyatan” plaintiffs argued that it was finally settled by the decision in the suit of 1910. The learned Judge observed that apart from it his own conclusions on the evidence in the present case are to the same effect, vis., the former means the right to fish with large nets and the latter the right to fish with small nets. With regard to the question of the nets to be used by the defendants during their period, i.e., from 16th Chaitra to bejoya nabami day, the defendants argued that the decision of this question was not necessary-in the suit of 1910 and, therefore, the decision in that suit on this question should not be considered final or operate as res judicata. The learned Judge has rightly held on this point that it is not open to the defendants now 1o Fay that the finding in question was merely collaterally or incidentally in issue and not directly and substantially in issue in the previous suit. It is clear that on the above findings of fact the learned Judge would have decreed the suit in respect of part 1, had not his decision on the questions of law been adverse to the plaintiffs as is evident from the fact that he has decreed the suit in full as regards part 3 of the jalkar. It is necessary, therefore, to examine the correctness of the view taken by the learned Judge on the questions of limitation and the application of Order II, Rule 2, C.P.C.
10. As to limitation: It is argued that by his order in the 145 case the Magistrate decided that the plaintiffs had the right to use large nets only from bejoya dammi day to 15th Chaitra in their “kirns baich” rights and the defendants’ raiyatan rights gave them the right to use small nets only during the plaintiffs’ period and both large and smafl nets during the rest of the year. The suit of 1910 was directed against the first portion only of the Magistrate’s order, viz., the defendants’ right to catch fish with small nets during the plaintiffs period, but there was no relief sought in that suit against that portion of the order which related to the defendants’ right to use large nets during their period. Accordingly the learned Judge holds that the plaintiffs’ suit for a declaration that defendants are not entitled to use large nets during their period is barred either under Article 47 or Article 120 of the Limitation Act, the suit having been brought more than twelve years after the decision of the 145 case. It is, therefore, necessary to test the legal effect of that decision. Under Section 145, Cr.P.C., the Magistrate is authorized to decide, without reference to title, which of the parties before him was in possession of the subject of the dispute at the date of the proceedings. The Magistrate, therefore, was entitled only to find whether the plaintiffs or the defendants were in possession of the fishery on the date when he drew up the proceedings under Section 145. He had jurisdiction to find possession but not the mode of possession or how the possession was to be exercised. Besides, it appears from the order of the Deputy Magistrate that he held that the defendants were in possession of the fishery throughout the year, while the plaintiffs were entitled to possession jointly with the defendants for a portion of the year. In my judgment this order was beyond the scope of Section 145 and, therefore, without jurisdiction. The portion of the order which lays down the way in which each party should exercise his possession was likewise passed without jurisdiction. The fact that in the suit of 1910 the plaintiffs stated the Magistrate’s order as giving rise to the cause of action for the suit should not be held to compel them to challenge the whole of the order though it was ultra vires. The only portion of the order which dealt with the question of possession was that part of it which held that the defendants were to have partial possession of the fishery by catching fish with small nets during plaintiffs’ period and that portion of tho order the plaintiffs challenged in the suit of 1910 It may be mentioned that in the plaint in that suit the plaintiffs alleged that “the defendants had only the raiyatan right in the jalkar, that is to say, the right to catch fish with small nets plied by one or two men and with anta, bansi from the 16th of Chaitra, to the day previous to the bejoya dasami day every year.” Article 47 of the Limitation Act prescribes a period of three years for a suit by a party against whom possession has been found under Section 145, Cr.P.C. That Article has no relation to any portion of the order of the Criminal Court which has no reference to the question of possession. The suit of 1910 was brought within three years from, the order of the Magistrate so far as it decided the question of possession and was, therefore, rightly constituted and within time. Moreover, as the order of the Magistrate did not dispossess the plaintiffs or maintain defendants’ possession to the exclusion of the plaintiffs, Article 47 does not apply. As regards Article 120, the Magistrate’s order as to the mode of possession or the use of large eels by the defendants could not give a cause of action for a suit which, if not brought within the statutory period, made that portion of the order binding between the parties. The intention of the. Law of Limitation is that if no suit is brought within the statutory period the remedy is lost and in case of an, order of a competent Court it remains binding between the parties. In the view I take of the matter, that part of the Magistrate’s order which relates to the use of large nets by defendants was not an order of a competent Court and had no binding force. Then again, according to the finding of the learned Judge the defendants ceased to ply large nets for more than three years from 1914 to 1917. The cause of action was not the Magistrate’s order under Section 145, but the infringement of plaintiffs’ right and so during that period plaintiffs had no ground for a suit for such infringement; and when the defendants again started doing what they had no right to do, it gave rise to a fresh cause of action, for the plaintiffs had no reasons to suppose that after the decision of the question by the High Court of the land and the defendants obeying it for along time there would be recrudescence of the wrong. In the plaint in the present suit the cause of action is mentioned as arising in 1917 and, therefore, the suit is within time. It is also a case of continuing wrong within the meaning of Section 23 of the Limitation Act. I hold that the suit is not barred by limitation.
11. As to Order II, Rule 2, C.P.C.:
The above observations apply with equal force to this question. As an abstract proposition of law, the view taken by the learned Judge is open to objection. That rule lays down that every suit shall include the whole of the claim in respect of the cause of action and if a portion of the claim is omitted from the suit the plaintiff shall not sue for it again. As has been held in Saminathan Chetty v. Palaniappa Chetty 26 Ind. Cas. 228 : 41 I.A. 142 : 18 C.W.N. 617 : 17 New L.R. 56 : 83 L.J.P.C.131 : (1914) A.C. 618 : 110 L.T. 913 (P.C.) this provision of the law is directed to securing the exhaustion of the reliefs in respect of a cause of action and not to the inclusion in one and the same action of different causes of action even though they arise out of the same transaction. The order under Section 145, even if valid, gave rise to two distinct causes of action: one in respect of the plaintiff’s period of the possession of the fishery and the other in respect of the defendants’ period. In respect of the first, the cause of action was that the defendants were held entitled to fish during plaintiffs’ term and in respect of the latter, that they could use large nets during their own term. These are’ two distinct causes of action though in respect of the same fishery. See Kulada Prosad Chatterjee v. Khudiram Misra . Then, as I have said, the cause of action for the present suit arose afresh in 1917 as a fresh breach of defendants’ obligation. The suit is accordingly not barred under Order II, Rule 2, C.P.C.
12. The next question that falls for consideration is the size of the nets to be used by the parties during their respective terms. In the suit of 1910, the trial Court held that “by big nets are meant such nets as can be plied by five or seven or larger number of men including her and backer which are the biggest and by small nets are meant those which are plied by one or two parts.” The Subordinate Judge in the present case held that all questions relating to the respective rights of the parties and the size of the nets were decided in the suit of 1910 and were accordingly res judicata in this suit and could not be re-opened. The learned District Judge says that he is not very happy in his mind as to whether small nets and big nets have been satisfactorily defined. He observes that the evidence in the case as to this is very unsatisfactory and that the defendants did not make any serious attempts to challenge the definition of small nets given by the plaintiffs in their plaint. He regards the result anomalous and observes: “I should say that all nets that are not big as defined in the previous case are small, that is to say, nets that require more than four men to wield are big nets and those that require four men or less are small nets.” In the judgment in Suit No. 324 of 1910, the trial Judge: made the following remarks in this connection: “It is neither, necessary in this view of the case to define, what are big nets and what are small nets. It is. also not easy1 to determine the question. It can, however, be. generally held that by big nets are meant all nets which can be plied with five or seven or larger number of men including bar and backer which are the biggest and by small nets are meant those which are plied by one or two paits.” On appeal from this decision in Appeal No. 58 of 1914, the District Judge of Rajshahi after discussing the evidence stated: “I am of opinion that the learned lower Court was perfectly correct in its definition of the ‘khas batch’ rights and in restricting fishing by the defendants as it has done.” In appeal from the decree of the District Judge (Second Appeal No. 1317 of 1915)’ it appears that objection was taken by the present defendants that the Court below in granting permanent injunction against them had not defined what sort of nets or other traps the, parties were to use in the exercise oil their respective rights. The learned Judges thought that they had been sufficiently defined. As observed by the Subordinate Judge in Suit No. 324 of 1910, it was not necessary to define the size of the nets for the purposes of that suit but the defendants invited the Appellate Court to decide the question. In these circumstances, it is difficult to resist the conclusion that the defendants are estopped from re-agitating the matter in the present suit. Apart from the question of res judicata, I think the decision in the previous suit and that of the Subordinate Judge in this suit on this point are correct. In the application in the plaintiffs’ suits of 1861 and the suit brought by him in 1862, Alam Saha, defendants’ predecessor, claimed the right to fish With ante, bansi and other bhaskan fish traps. The decision of the Magistrate in the 145 case was also to the same effect. Anta and bansi are small nets which can be plied by oh e or two men and bhashan fish traps are contrivances which float on the, water during the rainy season, (see the judgment of the Subordinate Judge in Suit No. 324 of 1910). The learned District. Judge’s view is not based upon evidence in the ease but is probably, according to-him, a common sense’ solution of the problem. There may be sufficient logic in the Judge’s view that what is not large is small but the conduct, of the defendants -and their predecessors for a large number of years and the impracticability of distinguishing large not from small, if they are so near each other in size, support the view taken by the trial Court. I, therefore, hold that tile decision of the trial Court on the size of the nets should be upheld.
13. In the view above expressed this appeal should succeed, the decree of the lower Appellate Court is set aside and that of the first Court restored with, costs throughout.
14. The respondents have filed cross objections and three points have been urged 6n their behalf. Firstly, it is argued that the plaintiff’s’ suit should be dismissed in the absence of any cause oil action. It is said that as the plaintiffs’ suit refers to the period of the year during which the defendants are in sole possession of the fishery the plaintiffs cannot object to the mode of possession by the defendants. This contention has no substance. The respective rights of the parties in the fishery are exclusive of each other for their mutual benefit. The plaintiffs are to catch only large fish and defendants small fish only. If defendants catch big fish during their period it is not unlikely that there will be diminution of the quantity of such fish during plaintiffs’ period. The fact that two different rights, “khas baich” and “raiyatan”, exist in the same fishery proves that, they must be mutually exclusive and misuse of one will necessarily interfere with the exercise of the other. It has, moreover, been found by the Subordinate Judge that the plaintiffs have actually suffered loss by the conduct of the defendants. Plaintiffs have, therefore, the right to restrict the defendants to their raiyatan rights and have a good cause of action for the suit.
15. Secondly, it is contended that permanent injunction should not have been granted in this case under Section 54 of the Specific Relief Act. I see no force in this argument, The learned Subordinate Judge observes in this connection: “In my opinion the fact that plaintiffs suffered loss has been established by evidence. Moreover, there can be no doubt that the action of the defendants would cause loss to the plaintiffs.” “On this finding the decree for injunction is proper and legal”.
16. Lastly, it is argued that the learned Judge is in error in holding that the decision in the suit of 1910 that the defendants can use small nets only during their period is res judicata. There is no force in. this contention either. In that suit the trial Court said: “It is also necessary to determine for the purpose of this suit what are the defendants’ rights in the said two parts ” (parts 1 and 3) “of the jalkars by virtue of their raiyatt right.” The decision on this question of the trial Court was upheld by the of this appeal sad by this Court in second appeal, in order to decide the question in is in that case the Court had to determine the extent and nature of the rights of the parties the fishery and this determination was the ground-work of Its decision of the issue in the case. Bee in this connection Dwijendra Narain Roy v. Jogesh Chandra Dey 79 Ind. Cas. 520 : 30 C.L.J. 40 : A.I.R. 1924 Cal. 606 and the case cited therein. Besides, the finding on the evidence in this case of the learned Judge as regards the meaning of defendants’ raiyatan right renders the further discussion of this question of no practical importance.
17. In the result the cross objection is dismissed but without costs.
18. This appeal, in which the plaintiffs is are the appellants, arises of out of a suit for declaration of their rights in a certain jalkar in the river Mahananda and a branch thereof. They naked for a declaratory decree declaring that the defendants, now respondents, as well as their tenants and lessees had, from the 16th Chaitra up to the day previous to the bejoya, dasami day every year, only what was described as raiyatan right in the said jalkar, that is to say, to catch fish by means of small nets plied by one or two men, arid not by, means of larger nets. They also asked for a perpetual injunction restraining the defendants from catching fish during the said period by means of big nets, or by means of any contrivances in excess of their said raiyatan right.
19. The defendants pleaded inter alia that the suit was barred by limitation, that the plaintiffs, not having included their claim in’ respect of the size of the nets in their previous suit (No. 324 of 1910), the present suit was barred under Order II, Rule 2 of the C.P.C., that they (the defendants) had been exercising this right for a long time, that there was no restriction in regard to the use of nets by them, that plaintiffs were not entitled to obtain a permanent injunction, and that the suit was liable to be dismissed.
20. Issues were framed in accordance with these pleadings and the trial Court after-deciding them in favour of the plaintiffs gave a declaratory decree in the terms asked for as well as a perpetual injunction. On appeal the learned District Judge of Kajshahi modified that decision holding that the suit must be dismissed &s regards part one of the fishery from Malda Bandaghat to Pirgunjo, while as, regards part three, viz., from Lhrgunje to Pakuria, he confirmed the judgment and decree of the Subordinate Judge with the modification that the small nets to be used by the defendants were defined to be those which require less than five men to wield them, and not less than three, as decreed by’ the Court of first instance.
21. It may be explained that the jalkar consists of three parts, and that we are concerned in this appeal with parts one and three only, as part two is not the subject-matter of the suit.
22. The plaintiffs have now appealed and the main points urged on their behalf are:
1. Firstly, that in regard to part three of the fishery the Court of Appeal below erred in holding that big nets and small nets were not satisfactorily defined in the previous litigation, and in modifying -the decree of the trial Court and defining big nets as those that require four men to wield them and small nets as those wielded by four men or less. It is urged that in the suit of 1910 it was necessary to determine the exact nature of khas baich and raiyatan rights, both with reference to the nature of the net to be used, as well as the period during which the lights were to be exercised, and that the learned District Judge has cried in going behind the decision of the Subordinate Judge, which was subsequently confirmed by the Court of Appeal and by this Court, and in reopening the question as to the nature of the nets which the defendants were entitled to use in exercise of their raiyatan rights, Stress has been laid on the finding of the Subordinate Judge the suit of 1910 “that it can be generally held that by small nets are meant those which are plied by one or two paits,” audit is argued that the Court of Appeal below was precluded by the doctrine of res judicata from finding that small nets meant those which can be plied by four men or less.
23. In my opinion these contentions are well-founded and must prevail. It seems to be abundantly clear that in the previous suit of 1910 the attention of the Court was directed not only to the question of the period during which the rights were to be exercised, but also to the mode in which those rights were to be exercised, or in other words, to the size of the nets to be used. That this is so is apparent from the following passage in the judgment of the Subordinate Judge in that suit: “It can, however, be generally held that by the big nets are meant ail nets which can be plied with 5 or 7 or a larger number of men…and by. small nets are meant those which are plied by one or two parts. It is, therefore, further held that during the khan batch period the plaintiffs will not be entitled to use such small nets as are plied with one or two parts, but only long nets, which are plied by 5 or 7 or a larger number (of) paits.”
24. Thus there was a clear decision that small nets meant nets plied by one or two paits only, and in face of that decision, which apparently was invited by the parties and acquiesced in by them, it is difficult to see how this matter could be re-opened, and how the learned District Judge could go behind it and hold that by small nets were meant those nets which are plied by less than four persons. The learned District Judge seems to have been influenced by the fact that there is a gap or lacuna between the big and small nets as defined by the Subordinate Judge, and he appears to have been of opinion that, if nets wielded by 5 or 7 persons or more were big nets, then nets wielded by any lesser number of persons must be deemed to be small nets. And at first sight there may be something to be said for this point of view, since the definition leaves it open to doubt whether nets wielded by three or four paits come within the category of large or small nets. The definition may perhaps be logically incomplete, but that cannot to my mind alter the position. There was a clear finding in the former suit that big nets were those wielded by 5 to 7 or more persona and small nets those wielded by one or two men. That finding was subsequently confirmed by this Court on appeal and it was held that it was necessary to decide as to the meaning of khas baich and raiyatan rights, and further that those rights had been sufficiently defined.
25. On behalf of the respondents a good deal of stress has been laid on the fact that in the plaint in the suit of 1910 no case was expressly made in regard to the size of the net to be used by the defendants, and that no issue was framed on the point. It is argued, therefore, that this was not part of the basis of that suit, and that the finding thereon cannot operate as res judicata in this suit. There is, however, authority for the view that, even if a particular matter be not included in a formal issue, if it is directly and substantially in issue between the parties, and if there be a decision thereon, it will operate as res judicata. It cannot be doubted that this question as to the size of the nets to be used was in issue in the former suit, and that a decision upon the point was necessary. Indeed the whole object of the suit of 1910 was to obtain a definition of the respective rights of the parties, and this appears to have been rendered necessary by the conduct of the defendants in re-opening the question as to the meaning of khas baich anr1 raiyatan rights decided in the suit of 1865J and after for a long period acquiescing in that decision disputing the matter afresh and causing proceedings to be instituted in 1907 under Section 145 of the Cr.P.C. It may be true, as I have said above, that the definition of the respective rights of the parties, so far as it related to the size of the nets to ‘ be used was somewhat logically defective, and it may be argued that, if the definition given by the Court of Appeal below be adopted, there will be less likelihood of trouble arising between the parties again. On the other hand, it is conceivable that the gap between the rights of the parties was purposely left in order to make it clear that the defendants were only entitled to use the smallest size nets such as could be plied by one or two persons. If, on the other hand, the sizes of the nets to be used by the parties merged into one another that might in itself give rise to further disputes.
26. Be that as it may, I am clearly of opinion that the question of the size of the nets was res judicata in view of the decision arrived at in the suit of 1910, which was afterwards confirmed as stated above by the Court of Appeal, as well as by this Court, and that being so, it was not open to the learned District Judge to re-open the matter, and decide that the defendants were entitled to use a net of different size.
27. It was next argued on behalf of the appellants that the Court of Appeal below had erred in law in holding that the suit in regard to part one of the fishery was barred by limitation. The learned District Judge held that even if Art 47 of the Limitation Act did not apply, Article 120 was applicable, that under that Article the suit must be brought within six years, and that, as it was brought more than 12 years after the decision of the case under Section 145 of the Cr.P.C., the suit was time-baired. On behalf of the appellants it is replied that the case under Section 145, Cr.P.C. ceased to have any effect when the subsequent suit determined the rights of the parties, and that thereafter when the rights of the plaintiffs were again infringed, afresh cause of action accrued to them, and that consequently the suit was not barred by limitation. The learned Advocate for the respondents has sought to meet this contention by an ingenious, but I think, fallacious, argument based upon what he has described as the dual nature of the order under Section 145. That order, he contends, consisted of two branches: one of which, vis., the second portion, relating to the plying of big nets was not challenged m the plaint in the suit of 1910. Therefore he argues the suit was restricted to the first part of the Magistrate’s order, arid so far as the second part of the order was concerned, that order continued to be operative and effective with the result that limitation must date therefrom. In my opinion this contention is without substance. The order under Section 145 cannot, 1 think, be split up in this fashion. That order was superseded when the suit was decided, and after the decision of the suit if there was, as has been found, a fresh infringement of the plaintiff rights, they would have a fresh cahse of action. In my opinion, therefore, the suit was not barred as regards part one of the fishery
28. It remains to deal with the argument that the suit, so far as part one of the fishery is concerned, is barred under Order II, Rule 2 of the C.P.C. The rule in question lays down that every Suit shall include tin whole of the claim which the plaintiff is entitled to make in respect of the cause of action, and that, where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, ho shall not afterwards sue in respect of the portion so omitted or relinquished. It is argued on behalf of the respondents that when the plaintiffs brought the suit of 19 LO they ought to have included their claim relating to the size of the nets, and that as they did not do so, they must be held to have relinquished it and cannot be now permitted to sue for it. The learned District Judge has given effect to this contention, but, in my opinion, he is in error. The plaintiffs, as the trial Court pointed out, repeated in Suit No. 324 the whole of their allegations made before Magistrate, viz., their right to fish all the year round with big nets and defendants’ rights to catch fish with small nets during their portion of the year, and there was no reason, therefore, for asking for a negative declaration regarding the big nets of the defendants, as they had themselves set up a claim of right to fishing with big nets all the year round. In other words, the nature of the claim set up by them rendered it unnecessary that they should ask for any such negative relief. In my judgment, therefore, the argument as to relinquishment is without substance.
29. In the result the appeal succeeds, the judgment and decree of the District Judge must be set aside, and the judgment and decree of the trial Court restored.
30. The appellants are entitled to their costs in this Court and in the Courts below. A cross-objection has been filed by the respondents and it has been urged that on a proper construction of the previous judgment the Court of Appeal below should have held that with regard to part three of the fishery the defendants were entitled to use big nets during their own period of fishery, and that the plaintiffs’ claim to restrain the defendants from using big nets during their period was barred under Order II, Rule 2 of the C.P.C. It has already been held that such a prayer must be held to have been included in that suit and there was a decision on the point. The cross-objection, therefore, fails and must be dismissed.