{"id":184963,"date":"2002-11-12T00:00:00","date_gmt":"2002-11-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tulsi-ram-ors-vs-mathura-sagar-pan-tatha-krishi-on-12-november-2002"},"modified":"2017-02-15T01:33:20","modified_gmt":"2017-02-14T20:03:20","slug":"tulsi-ram-ors-vs-mathura-sagar-pan-tatha-krishi-on-12-november-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tulsi-ram-ors-vs-mathura-sagar-pan-tatha-krishi-on-12-november-2002","title":{"rendered":"Tulsi Ram & Ors vs Mathura Sagar Pan Tatha Krishi & … on 12 November, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Tulsi Ram & Ors vs Mathura Sagar Pan Tatha Krishi & … on 12 November, 2002<\/div>\n
Author: Banerjee<\/div>\n
Bench: Umesh C. Banerjee, Y.K. Sabharwal.<\/div>\n
           CASE NO.:\nAppeal (civil)  1170 of 1980\nAppeal (civil)  645 of 1981\n\nPETITIONER:\nTulsi Ram & Ors.,  The Proprietors of Mathura Sagar Bareja & ors.\n\nRESPONDENT:\nMathura Sagar Pan Tatha Krishi & Anr., Tulsiram & Ors.\n\nDATE OF JUDGMENT: 12\/11\/2002\n\nBENCH:\nUmesh C. Banerjee & Y.K. Sabharwal.\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
Banerjee, J.\n<\/p>\n
\tSince the decision of this Court in Braja Sundar (Raja Braja
\nSundar Deb v. Moni Behara & Ors.<\/a> : 1951 SCR 431), the legal
\nphenomena pertaining to the doctrine of ‘lost grant’ seems to be
\nwell settled.  This Court in Braja Sundar (supra) upon reliance on
\nthe observations of Lord Radcliffe in Laxmidhar Misra v. Rangalal
\n(AIR (37)  1950 PC 56) stated  as below :\n<\/p>\n
“.. This doctrine has no application to the case of
\ninhabitants of particular localities seeking to establish
\nrights of user to some piece of land or water.\n<\/p>\n
the doctrine of lost grant originated as a technical
\ndevice to enable title to be made by prescription despite
\nthe impossibility of proving immemorial user and that
\nsince it originated in grant, its owners, whether original
\nor by devolution, had to be such persons as were
\ncapable of being the recipients of a grant, and that a
\nright exercisable by the inhabitants of a village from
\ntime to time is neither attached to any estate in land nor
\nis it such a right as is capable of being made the subject
\nof a grant, there being no admissible grantees.”\n<\/p>\n
\tThis Court further in Braja Sundar (supra) upon reference to
\na Bench decision of the Calcutta High Court in Asrabulla v.
\nKiamatulla (AIR 1937 Cal. 245) was pleased to observe that no
\n‘lost grant’ can be presumed in favour of a fluctuating and
\nunascertained body of persons.\n<\/p>\n
\tIt would be convenient at this stage, however, to note in
\nslightly more greater detail the observations of Lord Radcliffe in
\nLaxmidhar Misra (supra) as below :\n<\/p>\n
“6.   The doctrine of lost grant gives no firmer basis for
\nthe appellants’ case.\tThis doctrine originated as a
\ntechnical device to enable title to be made by
\nprescription despite the impossibility of proving
\n“immemorial user”.   By English common law
\nprescription had to run from time immemorial which by
\nconvention began in the year 1189.   If it was possible
\nto demonstrate that the user in question, though ancient,
\noriginated since 1189 the proof of title by the
\nprescription of immemorial user failed.\t  To get round
\nthis difficulty, Judges allowed or even encouraged
\njuries to find that the right in question, though less
\nancient than 1189, originated in a lost grant since that
\ndate.\tThus the right acquired the necessary legal
\norigin.\t  But such a right just as much as an easement,
\nhad to be attached to and to descend with an estate :
\nmoreover, since it originated in grant, its owners,
\nwhether original or by devolution, had to be such
\npersons as were capable of being the recipients of a
\ngrant under English law.   A right exercisable by the
\ninhabitants of a village from time to time is neither
\nattached to any estate in land nor is it such a right as is
\ncapable of being made the subject of a grant.\tThere are
\nno admissible grantees.\t In fact the doctrine of lost
\ngrant has no application to such rights as those of the
\ninhabitants of a particular locality to continue an
\nancient and established user of some piece of land.”\n<\/p>\n
\tTurning attention on to the fact situation of the matter in issue
\nbe it  noted that the present litigation has been between the Barai
\ncommunity being the proprietors of certain tanks in the village
\nknown as Mathurasagar and the fishing community called the
\nDhimars of Ramtek, which happen to be represented by Tulsi Ram
\n& Ors.,\t being the appellants herein.\tIt is not in dispute that there
\nwas a group of five tanks in this village, water from which was
\ndrawn for the purpose of irrigation by the Barais who had betel
\nleaves plantations.   These tanks at one time presumably were also
\na good fishing ground and fish used to be caught and collected by
\nthe fishermen community in the neighbourhood.\tThe tanks are
\nartificial and as the record goes to show and suggest, were
\nprivately owned.   As both the communities were interested in the
\nmaintenance of the tanks and water therein for their benefit, some
\narrangements seem to have been arrived at and the same came to
\nbe recorded and noted in a document popularly described as
\nWajib-ul-arz having statutory recognition under the C.P. Land
\nRevenue Act.   Significantly, both parties to the litigation presently
\nunder consideration admit that arrangement which prevailed
\nbetween them since a long time, first made its appearance in the
\nWajib-ul-arz in the year 1862 at the time of settlement of the year
\n1862-63.   This continued in the next settlement of the year 1892-\n<\/p>\n
93.   Then again in the third settlement year 1914-15 and
\nsubsequently also in 1942-43.\n<\/p>\n
\tOn the factual score it further appears that in the year 1951, the
\nMadhya Pradesh Abolition of Proprietary Rights Act came into
\nforce and the rights of Malguzars-proprietors in these lands were
\nextinguished.\tIn some cases, however, as provided under the Act
\ncertain rights were conferred upon the Malguzars and it is not in
\ndispute that so far as the present tanks and lands are concerned, the
\ntanks were treated as of the ownership of Barais.\n<\/p>\n
\t In the year 1954, the present plaintiffs commenced a suit
\nbeing Civil Suit No.10A\/54 praying for an injunction to restrain
\nthe defendants being the Appellants herein from catching fish in
\nthe said tanks and also for damages.   When that suit reached the
\nstage of second\t appeal in the High Court being Second Appeal
\nNo.398 of 1959, it was allowed to be withdrawn with liberty to file
\na fresh suit.\tThe present suit is a sequel to the suit which was
\nwithdrawn and was filed on 9.8.1963.   Leave  under Order 1 Rule
\n8 Civil Procedure Code was obtained and the suit thereafter was
\nproceeded with and contested in a representative capacity –  the
\nplaintiffs being the Barais and the defendants, the Dhimars or
\nfishermen of Ramtek.\n<\/p>\n
\tOn a perusal of the pleadings it appears that the defendants
\n(presently the appellants herein) have been rather candid with their
\ndefence to the effect that question of there being any permission
\nfor the catch and collection of fish or its removal, would not arise
\nsince such activities were within their own rights by reason of the
\ngrant.\t It is on this score, the High Court in the second appeal
\ncommented to the effect : “It is significant to note that the written
\nstatement does not show or claim that the right to catch fish was
\nclaimed only on behalf of some Dhimars or some Dhimar family
\nonly and not on behalf of all Dhimars of Ramtek.”   The suit
\nhowever, came to be decided in favour of the defendants upholding
\nthe right in terms of the grant.\n<\/p>\n
\tAggrieved by the decision, the plaintiffs came in appeal before
\nthe District Judge, Nagpur in Civil Appeal No.308\/65 and the
\nlearned District Judge, however, also was pleased to dismiss the
\nappeal and affirmed the judgment and decree passed by the learned
\ntrial Judge.   The first appellate Court held that the right to catch
\nand carry away fish from the tanks was “profit-a-prendre” and that
\n“defendants and their ancestors have been enjoying the right to
\ncatch fish in the suit tanks uninterruptedly.”\t In fine, the first
\nappellate Court stated : “The right of fishing in the suit tanks is
\nbeing enjoyed by the Dhimars uninterruptedly for over 100 years
\nand in view of long uninterrupted user, it could be presumed that
\nthe origin of the right of the Defendant was in a grant which cannot
\nnow be traced.”\t  In other words, according to the learned
\nAppellate Judge, the nature of the right was the right to share in the
\nprofit-a-prendre which was in an immovable property and was a
\npermanent grant made in favour of Dhimars.   There was,
\ntherefore, no question of any licence being granted by the plaintiffs
\nand the suit, therefore, in his opinion was rightly dismissed.
\nAccordingly, the appeal was dismissed and the judgment and
\ndecree passed by the learned trial Judge was confirmed.\n<\/p>\n
\tThe matter, however, did not rest there and the plaintiffs
\nmoved the High Court in second appeal, wherein the rights of the
\ndefendants stand expressly negatived and hence the appeal before
\nthis Court under Article 136 of the Constitution upon the grant of
\nleave.\n<\/p>\n
\tBefore proceeding with the matter further the conclusion as
\nrecorded by the High Court in paragraph 64 of the impugned
\njudgment ought to be noticed.\n<\/p>\n
\t“The result, therefore, is that the defendants
\nDhimars of Ramtek cannot claim this right to fish in the
\nMathurasagar tank either by way of a lost grant or by
\nway of custom.\tA lost grant of this kind cannot be
\npresumed as existing or could have been made in
\nfavour of an indefinite and indeterminate body of
\npersons being inhabitants of a particular place capable
\nof increase and decrease.  The right cannot also be
\nconsidered and recognised, for such a right would be
\nunreasonable, being destructive of the subject matter
\nitself if exercised, and if could be exercised as
\npermitted and to that extent.  If an indefinite body of
\nperson, and if a large number of persons were
\nauthorised to exercise such a right and if there was no
\nrestriction of whatever kind, then a customary right
\nwhich could produce such a result must be deemed to
\nbe unreasonable, and therefore, unenforceable in a court
\nof law.\t There has been no claim of this right to fish
\neither as a lease or as an easement.  The observation
\nabove and a reference to the aforesaid authorities would
\nclearly also go to show that such a right cannot be
\nclaimed either by way of easement or as a tenancy right
\nmuch less by an indeterminate body of  persons
\nbelonging to a certain community or from a certain
\narea.  Consequently, the Second Appeal must succeed.
\nThe decision of the Courts below is set aside and the
\nplaintiffs suit decreed with costs.”\n<\/p>\n
\tMr. Uday Umesh Lalit, Advocate, appearing in support of the
\nappeal have been rather vocal as regards the factum of Wajib-ul-
\narz, which in fact recognises the right of the defendant (Appellants
\nherein) not as a licensee but as a definite and ascertained body of
\npersons having irrevocable hereditary right from generation to
\ngenerations absolutely and upon reference thereon contended that
\nthe effect of such documentary evidence cannot be wiped out or be
\nrendered a nullity without a declaration to that effect by the Civil
\nCourt.\t It has been his definite contention that Wajib-ul-arz cannot
\nbut be termed to be a record of rights.\t    Alternatively, it is Mr.
\nLalit’s further submission that at least the appellants cannot be
\ndecried of their right as Haqdars and in the second alternative Mr.
\nLalit contended that it is a right based on custom from time
\nimmemorial as such question of interference by the High Court in
\nsecond appeal would not arise.\t Lastly, Mr. Lalit contended that it
\nis not an unascertained body but a class determinate.\n<\/p>\n
\t\tWe shall deal with the submissions presently, but before so
\ndoing, the observations of the Judicial Committee of Privy Council
\nin Bholanath Nundi & Ors. v. Midnapore Zemindary Company
\nLtd. & Ors. (LR (31) Indian Appeals 75) on which very strong
\nreliance has been placed by Mr. Lalit, ought to be noticed.   Lord
\nMacnaghten, speaking for the Bench stated :\n<\/p>\n
“The case, as presented\t by the plaintiffs, on the face of
\nit and in substance, seems simple enough.  It appears to
\ntheir Lordships that on proof of the fact of enjoyment
\nfrom time immemorial there could be no difficulty in the
\nway of the Court finding a legal origin for the right
\nclaimed.   Unfortunately, however, both in the
\nMoonsiff’s Court and in the Court of the Subordinate
\nJudge, the question was overlaid, and in some measure
\nobscured, by copious reference to English authorities,
\nand by the application of principles of doctrines, more or
\nless refined, founded on legal conceptions not altogether
\nin harmony with Eastern notions.   The result is that,
\nalthough the decree appear to be justified by the main
\nfacts, which both the lower Courts held to be
\nestablished, it is impossible to say that the judgments
\ndelivered are entirely satisfactory.”\n<\/p>\n
\t  It is on this judgment, Mr. Lalit appearing in support of the
\nappeal, has been rather emphatic on to his submission that the right
\ndid not exist in an unascertained family of Dhimars but among
\ncertain families of which the appellants are the representatives and
\nsince it was given to a certain number of persons, question of there
\nbeing any infraction of any law does not arise and the same ought
\nto be treated as in the nature of lost grant.\tThe existence of such a
\nright for such a long period of time for over a century was enjoyed
\nby the group of Dhimars continuously and uninterruptedly and the
\nBarais also did obtain the benefit of cash payment in lieu of half
\nthe catch and this cash benefit used to be spent for the development
\nand maintenance of tanks rather than individual enjoyment
\ntherefrom.   Mr. Lalit further contended that a Khasra record
\navailable with the State depict this long and uninterrupted user of
\nthe tanks to the exclusion of all others and question of
\ndispossession from the same would not arise : the revenue record
\nis a record of right capable of\t being enforced and enjoyed by a
\nspecified group of people though unascertained.\t  By reason of the
\nuninterrupted user of the tank, a right stands conferred on to the
\nappellants herein as a customary right and thus enforceable.\n<\/p>\n
\t\tIn the judgment impugned the issue pertaining to the
\nDhimars of Ramtek and the particular connotation to be attributed
\nthereon has been dealt with in the manner set out hereinbelow.
\nThe High Court in the judgment impugned upon consideration of
\nthe submissions as recorded in the plaint as well as the written
\nsubmissions stated as below :\n<\/p>\n
\t“In the face of the aforesaid statement in the
\nwritten statement understood in the context of the plaint
\nlaid, which refers to the defendants as All Dhimars of
\nRamtek”, I do not think it possible for Mr. Padhye to
\ncontend that the right was claimed by the named
\ndefendants only, and not by all Dhimars of Ramtek or
\nby these defendants and not as representing all the
\nDhimars of Ramtek.   As I pointed out, the defendants
\ndid not dispute in their written statement that they
\ncannot be representing all the Dhimars of Ramtek as
\ntheir interest do not coincide.\t  It is also not contended
\nthat some Dhimars from Ramtek are excluded.”\n<\/p>\n
\tThe High Court thereafter, however, went on to observe that in
\nthe very nature of things such a right would be a matter of contract
\nand would not be classified.   As a customary right, the same can
\nnever be claimed since it is a right in respect of a contract between
\nthe Barais and Dhimars relating to certain property, entered into
\nbetween the parties at that point of time and it is on this score
\nfurther the High Court negated the submission that the right existed
\nor was granted to only some of the Dhimars from the village.   The
\nHigh Court further observed :\n<\/p>\n
“.. That this was continued and was to run from
\nthe period of one settlement to the other.   Such a
\nconcept necessarily presupposes a contract being
\nrenewed from time to time and the rights of the
\ncontracting parties in accordance with the terms of the
\ncontract itself and lapsing after the period of contract.
\nNo such suggestion appears at any time anywhere in the
\nentire conduct and trial of this suit.\t One must,
\ntherefore, proceed on the footing, as was done in the
\nCourts below that the dispute between the parties was
\nin respect of rights which were claimed by one
\ncommunity against the proprietors of the tanks
\nrepresented by some members of other community.\t  It
\nwas in that sense a representative suit against the
\nDhimars brought by one of the numerous holders of
\ninterest in the tanks of the Barais  in a representative
\ncapacity.   That disposes of the first contention which
\nwas raised by Mr. Padhye.”\n<\/p>\n
\tIncidentally, be it noted that the first appellate court came to a
\nconclusion that even if a right cannot be accepted as can be
\nacquired by custom in a fluctuating body of persons, it cannot be
\nsaid that the villagers of a particular community in a\tvillage can be
\nregarded as a fluctuating body of persons.   The High Court
\nnegated that submission and we do feel it expedient to record our
\nconcurrence therewith since there seems to be ample justification
\ntherefor.   The decision of the Calcutta High Court in Asrabulla
\n(supra), which stands subsequently approved by this Court in Braja
\nSundar (supra), the law seems to be well settled that if a right
\ncannot\tbe conferred, no grant can be presumed in favour of an
\nindefinite body of persons and members of a particular community
\nthough of a village in such a body of persons.\n<\/p>\n
\t\tThis Court in Bihar v. S.G. Bose (1968 (1) SCR 313) stated:
\n\t“A claim in the nature of a profit-a-prendre
\noperating in favour of an indeterminate class of persons
\nand arising out of a local custom may be held
\nenforceable only if it satisfies the tests of a valid
\ncustom.\t  A custom is a usage by virtue of which a class
\nof persons belonging to a defined section in a locality
\nare entitled to exercise specific rights against certain
\nother persons or property in the same locality.\t  To the
\nextent to which it is inconsistent with the general law,
\nundoubtedly the custom prevails.   But to be valid, a
\ncustom must be ancient, certain and reasonable, and
\nbeing in derogation of the general rules of law must be
\nconstrued strictly.   A right in the nature of a profit-a-
\nprendre in the exercise of which the residents of locality
\nare entitled to excavate stones for trade purposes would
\nex facie be unreasonable because the exercise of such a
\nright ordinarily tends to the complete destruction of the
\nsubject-matter of the profit.  It is said in Halsbury’s
\nLaws of England, 3rd Edn. Vol.11, Art. 324 at p. 173 :\n<\/p>\n
\t“If a right in alieno solo amounts to a
\nprofit-a-prendre it cannot be claimed under
\nan alleged custom; for no profit-a-prendre
\nand therefore no right of common can be
\nclaimed by custom except in certain mining
\nlocalities; nor can there be a right to a profit-
\na-prendre in an undefined and fluctuating
\nbody of persons.”\n<\/p>\n
\t    The view as appears stands supported by a considerable
\nbody of authority in a long catena of cases.   In Lord Rivers v.
\nAdams (L.R. 3 Ex. Div. 361) it was held that the right claimed by
\ninhabitants of a parish to cut and carry away for use as fuel in their
\nown houses faggots or haskets of the under-wood growing upon a
\ncommon belonging to the lord of the manor is a right to a profit-a-
\nprendre in the soil of another : such a right cannot exist by custom
\nprescription, or grant, unless it be a Crown grant which
\nincorporates the inhabitants.\tThe House of Lords in Harris and
\nAnother v. Earl of Chesterfield and Another  (1911 A.C. 623) held
\nthat a prescription in a que estate for a profit-a-prendre in alieno
\nsolo without stint and for commercial purposes is unknown to the
\nlaw.   In the case of Harris and Another (1911 A.C. 623) the
\nfreeholders in parishes adjoining the river Wye were in the habit of
\nfishing a non-tidal portion of the river for centuries, openly,
\ncontinuously, as of right and without interruption, not merely for
\nsport or pleasure, but commercially in order to sell the fish and
\nmake a living by it.   The riparian proprietors claiming to be
\nowners of the bed of the river brought an action of trespass against
\nthe freeholders for fishing.   It was held by a majority of the House
\nof Lords that the legal origin for the right claimed by the
\nfreeholders could not be presumed and that the action by the
\nplaintiffs was maintainable.\n<\/p>\n
\t   Mr. Bobde, however, contradicted the basic submission of
\nMr. Lalit and contended\t :\n<\/p>\n
\t    A body of persons, which is indeterminate and fluctuating
\nby reason of births and deaths, influxes and effluxes, can neither be
\nthe recipients of a grant nor claim a customary right to enter upon
\nand take away profit-a-prendere in alieno solo (Latin for  on
\nanother’s land and in  French the equivalent term is ‘en autre
\nsoile’).\n<\/p>\n
\tMr. Bobde further made a sharp distinction between a
\ncustomary right to profit-a-prendere for commercial purposes from
\nthat of home use or sport,  and the same is  unknown to law.\n<\/p>\n
\tIn India, Mr. Bobde contended further that under the Easement
\nAct, 1882, prescription of easements is permissible under Section\n<\/p>\n
15.   An easement may include profit-a-prendre, but  not profit-a-
\nprendre in gross i.e. where there is no dominant heritage for which
\nthere is corresponding servient heritage.   The profit-a-prendre in
\ngross in English law flows from the English common law and the
\nPrescriptions Act, 1832.   As the customary rights to other profit-
\na-prendre or other easements in India, it will be necessary to prove
\na legal and valid local custom and to be a legal and valid custom in
\nrelation to profit-a-prendre, a custom alleged must above all, be
\nreasonable.   Whether the exercise of a right claimed is by a body
\nof persons which can grow or change indefinitely and which is not
\ncapable of having a succession in any reasonable sense of the term,
\nor where the exercise of the right tends to destroy the subject
\nmatter of the right, the alleged custom is ex-facie unreasonable and
\ncannot be sustained in law.   It is in this context that Mr. Bobde has
\ntaken recourse to  Section 47 of the Abolition Act and Section 225
\nof the Land Revenue Code and stated that the same are the legal
\nfilters through which an alleged practice\/contract must pass to be
\neven claimed as a custom.   Once a claim is made, scrutinised and
\nrejected by the\t competent authority and no suit is filed by the
\naggrieved party, it is not open to that party to allege and prove the
\ncustom in a Court of Law as a defence to a suit.\n<\/p>\n
\tIt was next contended that the vast and vital difference
\nbetween a suit and a defence, in the context of Section 225 of the
\nLand Revenue Code, is that a suit by an aggrieved party can
\nreopen the question closed by the order under the statute.   Once
\nlimitation for suit expires, the extinguishment of remedy
\nextinguishes the right\tubi jus ibi remedium  and the other party
\nis entitled to act on the basis of the order as a final and conclusive
\ndecision on the existence or otherwise of the alleged custom.
\nWhen the successful party goes to Court to injunct or evict a
\ntrespasser, it is not open to the Defendants then to reagitate the
\nquestion whether there was a customary right.\n<\/p>\n
\t The public policy reflected in the post-independence laws
\ncannot be allowed to be defeated, the policy being that ‘rights in or
\nover land’ which is a State subject in Entry 18, List VII, fall within
\nthe exclusive domain of the State and once the State authorities
\nhave determined the existence or absence of those rights, finality
\nmust attach to such determination in the public interest and the
\ninterests of justice, submitted Mr. Bobde.   The object of the policy
\nalso is to prevent long litigation spanning decades or generations
\non a subject that is made the exclusive and final domain of statutes,
\nunless of course the aggrieved party goes to Court in accordance
\nwith Section 225.   It is trite law that when a law says that a thing
\nis to be done in a certain way, it must be done in that way alone
\nand no other.\tThe Courts’ sole function-indeed its “sworn duty
\nand trust” (De Grey CJ in the Duchess of Kingston’s case (1775-
\n1802) All E.R. Rep. 623 at 628 C)  is to uphold and administer
\nthe law and do justice in accordance therewith.\n<\/p>\n
\t  Mr. Bobde further contended that the alleged grant was never
\nin favour of individuals.   No such plea was ever raised in the
\nlower Courts which decided the suit and first appeal.  The Courts
\nproceeded on the footing that it was a representative action.  If the
\nWazib-ul-arz of 1942-43 is construed as showing a grant having
\nbeen in favour of the individuals mentioned in Ex.117 (viii), it is
\nplain that it was not in favour of their families, heirs or
\ndescendants in perpetuity, and must therefore expire with the
\nexpiry of individuals mentioned therein.   If it is construed as a
\ngrant in favour of, or custom enuring to the benefit of families,
\nheirs, descendants and all manner of successors or assigns, the
\nbody of persons again becomes fluctuating and thus renders the
\nsame incapable of legal recognition of the grant or claiming a
\ncustomary right.   The exercise of right destroys the subject matter
\nis clear from the Written Statement. itself wherein, at p. 142, the
\nDefendants state that they put in seeds of fishes.  Obviously, the
\nfish are caught and consumed or sold for gain.\t The fishery gets
\nexhausted.   Then it is replenished with fresh seeds to have a new
\nlot of fishes.\t It is as though some people claimed the right to
\ncome upon another’s land, sow and reap crops repeatedly for
\neternity.   It would leave the owner with merely the husk of
\nownership while it would really virtually vest in those who claim
\nsuch an absurd right, not as permissive user or activity but as of
\nright, and in the bargaining process, even have the Barais maintain
\nthe tanks for the Dhimars.   As a matter of fact only a licence to
\nfish was granted and the same stands corroborated by the fact that
\nthere was even consideration therefor viz. the amount that was to
\nbe paid by the fishermen.   It was used for the maintenance of the
\ntanks not for the sake of the fishermen but for the purposes of the
\nowners; for utilizing the tanks for cultivating betel leaves which
\nwas and is their occupation.   This was particularly so because the
\nbody of Barais was large  in fact, larger than that of Dhimars
\nand it was in their common interest that the tanks which were the
\nsole source of water for cultivation for the betel leaves were
\nmaintained.   For that reason alone, fishing was allowed for a price.\n<\/p>\n
\t   On the wake of the above discussion, we do not feel it
\ninclined to interfere with the order of the High Court.\t  The appeal,
\ntherefore, fails and is dismissed.   No costs.\n<\/p>\n
Re CA No.645 of 1981
\n\t   Admittedly, the appellants herein do not deal in fish:
\nwhereas the Dhimars do deal with the same!!  Strict enforcement
\nof individual rights will create a situation not only of further
\nstiffening of attitude of each of the parties  towards the other but
\nthis may lead to economic instability which the Dhimars may
\nsuffer:\t It is on this score Mr. Bobde in his usual fairness suggested
\nthat some such orders should be passed so as to allow the parties to
\nco-exist and avoid economic deprivation.  We place on record our
\nappreciation therefore and thus direct that the fishing rights\tbe
\nauctioned and the rights thereof be conferred on to the highest
\nbidder.\n<\/p>\n
\tIt is further ordered that till the auction as directed above,
\ntakes place, mesne profits as determined by this Court shall
\ncontinue to be paid.\n<\/p>\n
\tThe appeal thus stand disposed of as above.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Tulsi Ram & Ors vs Mathura Sagar Pan Tatha Krishi & … on 12 November, 2002 Author: Banerjee Bench: Umesh C. Banerjee, Y.K. Sabharwal. CASE NO.: Appeal (civil) 1170 of 1980 Appeal (civil) 645 of 1981 PETITIONER: Tulsi Ram & Ors., The Proprietors of Mathura Sagar Bareja & ors. RESPONDENT: Mathura […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-184963","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nTulsi Ram & Ors vs Mathura Sagar Pan Tatha Krishi & ... on 12 November, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tulsi-ram-ors-vs-mathura-sagar-pan-tatha-krishi-on-12-november-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tulsi Ram & Ors vs Mathura Sagar Pan Tatha Krishi & ... on 12 November, 2002 - 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