Orissa High Court
Biranchi Padhan And Anothe vs Collector Bolangir And Others on 7 April, 2017
Equivalent citations: AIR 2017 ORISSA 154
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
S.A.No.61 of 1997
From a judgment and decree dated 21.12.1996 and 20.1.1997
respectively passed by Mr.B.D.Tripathy, learned Civil Judge,
(Sr.Division), Patnagarh in Title Appeal No.1 of 1986 confirming the
judgment and decree dated 2.1.1986 and 9.1.1986 passed by
Mr.R.C.Tripathy, learned Munsif, Patnagarh in Title Suit No.1 of
1985.
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Biranchi Padhan and another .... Appellants
Versus
Collector, Bolangir and others .... Respondents
For Appellants -- Mr.Budhiram Das on
behalf of Mr.N.C.Pati,
Advocate
For Respondents -- Mr.P.C.Panda,
Addl.Govt.Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing: 30.03.2017 & Date of Judgment:07.04.2017
Dr.A.K.RATH, J.This is a plaintiffs' appeal against the confirming judgment.
2. The case of the plaintiffs is that one Karmau Gountia, Thikadar of village Solabandh, had allotted a portion of cultivable 'Bhogra' land in favour of Bairagi Padhan, the ancestor of the 2 plaintiffs, for construction of a tank. In the year 1916 patta was issued to him. Thereafter he excavated a tank over the said land. He was in possession of the same and exercising his fishery right over the same till his death. In 1916 settlement, since his possession was recorded unauthorized, the matter was agitated before the then 'Darbar' of Patna State. The Dewan declared the suit tank to be a public tank, but did not deprive him from his fishery right. After his death, the plaintiffs were in possession of the suit tank. In the year 1984, when the suit tank was transferred to Solabandh Gram Panchayat by the Government, they instituted the suit for declaration of their rights over the suit tank.
3. The defendants entered contest and filed a written statement denying the assertions made in the plaint. The stand of the defendants was that State was the paramount owner of suit tank. In the year 1936 the suit tank was recorded as "Jalchar'. In 1976 Settlement, the tank was recorded as 'Rakhit'. Originally the suit tank was transferred to Pandamunda Gram Panchayat for its management on 17.4.1962. Subsequently the Gram Panchayat was divided. In the year 1967, Solbandh Gram Panchayat was reconstituted. The suit tank, which was originally transferred to Pandamunda Gram Panchayat, came under Solabandh Gram Panchayat for its management. When the public tanks of different Gram Panchayats were put to auction, plaintiff no.2, who was present at the time of auction, insisted the authority to lease out the suit tank in his favour. But then the suit tank could not be leased out since the Gram Panchayat had resolved to carry on pisciculture in the said tank in its meeting dated 19.6.1984.
34. On the pleadings of the parties, the learned trial court framed seven issues. To prove the case, the plaintiffs had examined ten witnesses and on their behalf, six documents had been exhibited. The defendants had examined nine witnesses and on their behalf, eleven documents had been exhibited. The learned trial court on a thread bare analysis of the evidence on record as well as pleadings held that the plaintiffs had failed to establish their rights over the suit tank and dismissed the suit. The unsuccessful plaintiffs challenged the said judgment and decree before the learned Civil Judge (Senior Division), Patnagarh in Title Appeal No.1 of 1986, which was eventually dismissed.
5. The Second Appeal was admitted on the substantial questions of law enumerated in grounds no.1 & 2 of the appeal memo. The same are:
"1. Whether Exts. 1 to 6 coupled with the evidence of P.Ws. and D.W.4 establish the right of the plaintiffs in this suit land and if the findings of the learned courts below on that score is perverse and liable to be interfered with ?
2. Whether in absence of any evidence on record that Bairagi was ever evicted from the suit land, the learned courts below committed serious illegality in holding that neither plaintiffs nor Bairagi was in possession of the suit land whether the findings of the courts below that if Bairagi had any right the same has been extinguished in 1936 is sustainable in law ?"
6. Heard Mr.Budhiram Das on behalf of Mr.N.C.Pati, learned Advocate for the appellants and Mr.P.C.Panda, learned Additional Government Advocate for the respondents.
47. Mr.Das, learned Advocate for the appellants submitted that Karmu Gountia, Thikadar of village Solbandh, had allotted Bhogara land in favour of Bairagi Padhan, the ancestor of the appellants for construction of a tank. Patta was issued in favour of Bairagi Padhan in the year 1916. Bairagi Padhan excavated a tank over the suit land from out of his own fund and was exercising fishery right over the same till his death. Settlement record of the year 1916 reflects the name of Bairagi as an unauthorized occupant of the suit land. The matter was agitated before the then Darbar of Patna State. The Dewan declared the suit tank as a public tank, but had not deprived Bairagi Padhan from his fishery right over the said tank. The plaintiffs are in possession of the tank and enjoying the fishery right.
8. Per contra, Mr.Panda, learned Additional Government Advocate submitted that both the courts below held that the suit tank was never in possession of the plaintiffs. The same is in possession of the Grama Panchayat. The plaintiffs have no rights over the tank in question.
9. In Gangadhar Sai and others Vrs. The Collector, Bolangir and others (S.A.No.90 of 1994 disposed of on 3.3.2017), the question arose as to whether right to catch and carry away the fish is a profit or benefit arising out of land is immovable property within the meaning and ambit of the Transfer of Property Act, and its sale has to be by means of a registered instrument in case its value exceeds Rs.100/-.
10. This Court held :
"Ananda Behera and another v. State of Orissa and another, AIR 1956 SC 17 is a locus classicus on the 5 subject. The dispute pertained to fishery rights of the plaintiffs over a portion of Chilka lake. The estate was vested in the State of Orissa under the Orissa Estates Abolition Act. Long before vesting of the estate, the petitioners had entered into contracts with the ex proprietor Raja of Parikud and had obtained from the latter, on payment of heavy sums, licences for catching and appropriating all the fish from the fisheries detailed in the schedule of the petition. The State of Orissa refused to recognise the licenses and were about to re- auction the rights. At this juncture, the petitioner had approached the apex Court under Article 32 of the Constitution of India on the ground that their fundamental rights enshrined under Articles 19(1)(f) and 31 (I) were infringed. The question arose before the apex Court as to whether the petitioners had acquired any rights or interests in "property" by their several "purchases". The Constitution Bench of the apex Court held that the lake is immoveable property. After promulgation of the Orissa Estate Abolition Act, it vested in the State of Orissa. Right to catch and carry away fish in specific sections of the lake over a specified future period amounts to licence to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a 'profit a prendre' which has been regarded as a benefit that arises out of the land and, as such, is immoveable property. If 'profit a prendre' is regarded as tangible immoveable property and the property value is more than Rs.100/- it requires registration under Section 54 of the Transfer of Property Act. The same view was followed in the Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh and others, AIR 1977 SC 2149. The apex Court in uncertain terms held that the right to catch and carry away the fish being a 'profit a prendre' i.e. a profit or benefit arising out of the land, it has to be regarded as immovable property within the meaning of the Transfer of Property Act, read in the light of Section 3 (26) of the General Clauses Act. If a 'profit a prendre' is tangible immovable property, its sale has to be by means of a registered instrument in case its value exceeds Rs.100/- because of Section 54 of the Transfer of Property Act. If it is intangible, its sale is required to be effected by a registered instrument whatever its value. Therefore, in either of the two 6 situations, the grant of the 'profit a prendre' has to be by means of a registered instrument. Accordingly, the transaction of sale of the right to catch and carry away the fish if not effected by means of a registered instrument would pass no title or interest."
11. The ratio in the case of Gangadhar Sai (supra) applies with full force to the facts of this case.
12. The dispute pertains to the plaintiffs' claim over the suit tank. The value of which by no stretch of imagination is less than Rs.100/-. Right to catch and carry away the fish is a 'profit a prendre'. The same is construed as immovable property within the meaning and ambit of the Transfer of Property Act, 1982 and its sale has to be by means of a registered instrument in case its value exceeds Rs.100/- Since no registered instrument has been executed, the plaintiffs have no rights over the tank in question.
13. Resultantly, the appeal fails and is dismissed. No costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 7th April, 2017/CRB.
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