Orissa High Court
Sudarsan Mandal And Others vs Bhusan Mandal And Others on 8 January, 2018
Equivalent citations: AIR 2018 (NOC) 668 (ORI.)
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.71 of 1991
From the judgment and decree dated 20.12.1990 and 4.1.1991
respectively passed by Sri K.C. Pattanaik, learned Sub-Judge,
Rairangpur in T.A. No.17 of 1988 reversing the judgment and
decree dated 21.11.88 and 5.12.88 respectively passed by Sri S.K.
Mohanty, learned Munsif, Rairangpur in T.S. No.23 of 1986.
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Sudarsan Mandal and others ................. Appellants
---versus--
Bhusan Mandal and others .................. Respondents
For Appellants : Mr. Budhiram Das, Advocate
For Respondents : None
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing :08.01.2018 │ Date of Judgment:08.01.2018
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Dr. A.K. Rath, J.Defendant nos.1 to 4 are the appellants against a reversing judgment.
02. The following genealogy would show the relationship of the parties.
Krupa
Jagannath Narahari Balaram Dasarathi Natabar Raghubar
Sudarsan
Nistihar Libihar (D-1) Bhusan Premdas
(D-5) (P-1) (P-2)
Pradip Umakanta Rajendra Bipin Jatin
(D-6) (D-7) (D-8) Duryodhan Jailal Bhabesh
Amarsingh =Ghhasini (D-2) (D-3) (D-4)
(D-9) (D-10)
Abhay Dalbehari
(D-11) (D-12)
2
The case of the plaintiffs was that Krupa had six sons, namely, Jagannath, Narahari, Balaram, Dasarathi, Natabar and Raghubar. All were dead. Narahari and Balaram died issueless. Raghubar died leaving behind him two sons, Bhusan and Premdas, plaintiff nos.1 and 2. Natabar died leaving behind him one son, Sudarsan, defendant no.1. Defendant nos.2 to 4 are the sons of defendant no.1. Dasarathi died leaving behind him two sons, Bipin and Jatin, who are dead. Proforma defendant nos.9 to 12 are their legal heirs. Jagannath died leaving behind him two sons, Nistihar, defendant no.5 and Libihar. Libihar died leaving behind him sons, defendant nos.6 to 8. It was pleaded that after 1906 settlement, Krupa and two of his co-villagers namely, Sarthak Majhi and Thele Majhi excavated a tank over a Govt. land measuring area Ac.4.37 dec. The then administration transferred the ownership of the said tank to those three persons and settled the same in their favour. The tank and ridges had been recorded in their names pursuant to the order passed in Amalnama Case No.43 of 1910-1911. At the time of settlement operation, all the three recorded owners were dead. The tanks and ridges had been recorded in the name of their legal heirs. It was recorded jointly in the names of Natabar, Saunre, Mangat, Govinda and one Gora Bindhani. There was no dispute between them. Gora Bindhani had no right over the tank. But then, his name was recorded in 1927 settlement. Neither Gora nor his heirs had ever claimed any right over the tank. Sarthak, one of the original owners, died leaving behind him three sons, namely, Mangat, Bikram and Narsingh. All were dead. Bikram and Narsingh had no issue. Mangat died leaving behind him son, Saunre. The names of Mangat and Govinda, sons of Saunre and Thele, had been recorded in the ROR. It was further pleaded that after death of Krupa, his sons were separated. But Natabar and Raghubar were in 3 possession of the tank. The other branches of Krupa relinquished their share over the suit tank. Krupa's 1/3rd interest was allotted to Natabar and Raghubar. Both Natabar and Raghubar had 1/3rd share. They spent money for rearing the fish. The practice continued even after death of Natabar and Raghubar. About 7 years ago, the co- owners agreed that each of the three co-sharers would rear and catch fish for two years at a stretch, with a view to avoid complicacy. The first two years was allotted to Natabar and Raghubar's heirs, i.e., defendant nos.1 to 4 and the plaintiffs. The last two years to Saunre's heir, i.e., proforma defendant no.13. The next two years were allotted to Thele's heirs, i.e., proforma defendant nos.14 to 16. The parties agreed that for the purpose of the aforesaid arrangement for rearing and catching fish, the year shall be computed from 'Bhadrah' of one year till 'Asadha' of the next succeeding year. The said arrangement continued. For the years 1985-86 and 1986-87, the tank had been allotted to the heirs of Krupa. In the year 1981, the defendant no.1 created disturbance over the fishery right of the plaintiffs in the suit tank. To avoid future complicacy, an agreement was entered into between the parties, wherein the defendant no.1 admitted and acknowledged that Natabar and Raghubar had equal share and further agreed to continue the said arrangement. The agreement was executed by the defendant no.1 and plaintiff no.2 on his behalf and on behalf of his elder brother, plaintiff no.1, in presence of witnesses on 8.4.1981. As per the agreement, the plaintiffs were entitled to get 50% of the income derived from Krupa's share in the fish of the suit tank. The plaintiffs and defendant nos.1 to 4 reared fish in the year 1985-86 and 1986-87 respectively. While the matter stood thus, on 3.9.86 the defendant no.1 along with his sons created disturbances. The plaintiffs had enjoyed the right of fishery after death of their father.
4Thus the plaintiffs had right to catch fish. They had 50% share. They had spent considerable amount in rearing fish. With the factual scenario, they instituted the suit for declaration of fishery right over the suit schedule tank and permanent injunction.
03. The defendant no.1 filed written statement denying the assertions made in the plaint. The case of the defendant no.1 was that pursuant to the partition between the sons of Krupa, the suit tank fell to the share of Natabar. The defendants had been exercising right of fishery exclusively over the 1/3rd share of Krupa. The plaintiffs had no right over that 1/3rd share of Krupa, since their father, Raghubar had no such right over the suit tank. In 1927 settlement, the name of Natabar had been recorded in respect of the suit tank. Ext.1 had been executed by the plaintiffs fraudulently. Ext.4, R.O.R., had been wrongly prepared in the names of plaintiffs and others. Other defendants were set exparte.
04. On the interse pleadings of the parties, learned trial court struck eight issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that the unregistered agreement dated 8.4.81 was a fabricated one. The same was inadmissible in evidence. Krupa's share in the tank stood recorded exclusively in the name of Natabar. Plaintiffs failed to prove that Natabar and Raghubar were exercising joint fishing rights and were continuing to exercise that right jointly. Held so, it dismissed the suit. The plaintiffs filed T.A. No.17 of 1988 before the learned Sub-Judge, Rairangpur. Learned appellate court held that learned trial court was not justified in disbelieving Exts.1 and 4. Exts.1 and 4 are vital documents evidencing the fishery right of the plaintiffs over the tank. Held so, it allowed the appeal.
505. The second appeal was admitted on the following substantial questions of law.
"1.Whether the document Ext.1 is admissible in evidence when it is not registered and whether the lower appellate court has gone wrong in relying on this document without considering its admissibility ?
2. Whether the plaintiffs having not claimed or proved ownership over the suit tank which was admittedly recorded in the name of Natabar in successive settlements to the exclusion of his other brothers, plaintiffs' fishing right can be declared ?"
06. Heard Mr. Budhiram Das, learned counsel for the appellants. None appears for the respondents.
07. Mr. Das, learned counsel for the appellants submits that the suit tank was excavated by Krupa Mandal and two of his co- villagers Sarthak Majhi and Thele Majhi. The same was settled in favour of three persons. The said tank was recorded in their names jointly pursuant to the order passed in Amalnama Case No.43 of 1910-1911. Since the dissension cropped up between the parties, an agreement was entered into between defendant no.1 and plaintiff no.1 vide Ext.1 wherein it decided that the three branches will rear and catch fish for two successive years. The defendants had not created any disturbances over the right of the plaintiffs. Learned appellate court is not justified in reversing the judgment of the learned trial court. The judgment suffers from vice of non- application of mind. He further submits that Ext.4 is the settlement record of right. The parties had admitted before the Settlement Officer over the respective fishery right. There is no reason to disbelieve the same.
08. An identical matter came up for consideration before this Court in the case of Biranchi Pradhan and another vs. Collector, Bolangir and others, AIR 2017 Ori.154. Taking a cue from Ananda 6 Behera and another vs. State of Orissa and another, AIR 1956 SC 17, this Court held:
"Ananda Behera and another v. State of Orissa and another, AIR 1956 SC 17 is a locus classicus on the 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 reauction 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 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."7
09. The ratio in the case of Biranchi Pradhan and another (supra) applies with full force to the facts of the case. The dispute pertains to the defendant's claim over the 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 means of a registered instrument in case its value exceeds Rs.100/-.
10. Ext.1 is an unregistered agreement between the defendant no.1 and plaintiff no.1 dated 8.4.81 to catch fish. It requires registration, since the value of the property exceeds Rs.100/-. Thus reliance placed upon Ext.1 is totally misplaced. It is trite that the settlement record of right neither creates title nor extinguishes title.
11. As a sequel to the above discussion, the judgment of the learned appellate court is set aside and that of the learned trial court is confirmed. The appeal is allowed. Consequently, the suit is dismissed. There shall be no order as to costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 8th January, 2018/Basanta