Patna High Court
Babu Kirtyanand Singh Bahadur And Ors. vs Raja Deonandan Prasad And Ors. on 31 July, 1933
Equivalent citations: 148IND. CAS.1101, AIR 1933 PATNA 533
JUDGMENT Wort, Actg. C.J. 1. This is a plaintiffs appeal from the decision of the Additional Subordinate Judge of Bhagalpur dismissing their action for an injuction against the defendants restraining them from establishing a ghat on the north bank of the river Gogra in the plaintiffs mauza restrai them from anchoring boats and landing passenger in the same mauza and also claiming a declaration that in the event of th defendants establishing a ghat in the said mauza the plaintiffs be entitled to Recover ferry charges on the north bank of the said river. 2. The Subordinate Judge has held the defendants are entitle to ply a ferry between the south bank from a point admittedly in the mauza of the defendants to a point on the north in mauza Ratwara. 3. The Plaintiffs are proprietors of the 9 annas share and lessee of the remaining 7 annas of the mauza Kishanpur Ratwara and the defendants are proprietors of mavza Nagapara to the south and between these two villages runs this river I have mentioned which is a tributary of the Kosi Ii is not denied that the defendants have been plying a ferry from time immemorial from a point in their mauza Nagapara the point being the junction of a public road in the mauza across the river to a point on the north bank of the river and in these circumstance the only substantial dispute between the parties is the exact position of the point on the north bank. 4. The plaintiffs case was that the ghat or landing place was until the year 1325 Fasli that is 1918, in the defendants mauza but that by reason of a change in the bed of the river there was also a change in the position of the landing ghat which is known in this as the Karhil ghat and thus it came to be in the plaintiffs mauza. That I say was the appellants case. This gave rise, it appears, to a dispute, at least again this is the appellants case, between the parties and proceedings were eventually started under Section 145 of the Criminal Procedure Code. During the pendency of these proceedings the parties agreed to submit their disputes to arbitration and on the basis of the award an ekrarnama was executed and the Sub-Divisional Officer who was hearing the case under Section 145 gave a decision based on that agreement. This order of the Sub-Divisional Officer was subsequently modified by this Court. This matter came to be discussed in the Court below and the learned Judge has decided as regards the alleged arbitration that there was no valid submission but in this Court nothing turns either on the matter of the arbitration proceedings or the subsequent order of the High Court as the parties before us make no point with regard thereto. It appears also that in the year 1902 during the survey proceedings there was a boundary dispute between the parties as to the boundaries of the two villages and the Settlement Officer purported to decide that the boundary was in the middle of the river Gogra. In the Court below the parties contested the question of whether the Settlement Officer had jurisdiction to go into this question and it was decided by the learned Subordinate Judge that he had no such jurisdiction. But again nothing is made of this point in this Court. The main point decided by the Judge in the Court below was that the defendants had a right to ply a ferry between Nagapara and Karhil ghat in mauza Ratwara. In coming to this conclusion the learned Judge has held that Karhil was and had always been in the plaintiffs mauza and that it was from a point at the junction of a public highway in Nagapara on the one side to a District Board Road which met the river on the north side in the plaintiffs village. In this Court the parties limited their case, as I have already indicated, to the question of whether the ghat was in Ratwara or Nagapara. The plaintiffs-appellants contended that the change of the course of the river Gogra in recent years resulted, as I have said, in the ghat being for the first time in their mouza implying, according to their case, that the defendants were landing passengers and traffic on their private property. For this contention they relied on certain kabuliyats produced by the defendants themselves, kabuliyats to which the defendants were parties and in which this statement, occurred, "The ghats of Karhil and Bandha on both banks within mauza Bhamarpur, taluka Nagapara", It was also pointed out that for the first time in 1902 or 1903 the position of the Karhil ghat was marked in any map as being in the plaintiffs mauza; this was for the purpose of indicating the uncertainty of the defendants case in this respect. There was also some discussion of the part of the respondents themselves as regards the extent of their regards to the ferry but apart from of the considerations of law which will become relevant on the plaintiffs argument that the defendants have not established a right to land passengers in their mauza, this matter is of little importance having regard to the admitted case that a ferry existed from time immemorial. There is also m contention on the part of the appellants in this Court that they had any right in this ferry apart from the agreement in the arbitration to which I have referred. 5. It is to be noted at this stage that the existence of the terry was recognised in certain papers prepared in a partition which took place between the defendants in the years 1850 and 1880. These papers are marked Exs. L and LI in this case. There is also a body of oral evidence which would establish the existence of the ferry had the question been material in the sense that there was any dispute with regard to its existence. It was difficult in this Court to fully appreciate what the plaintiffs-appellants case was. As the case was laid, the plaintiffs admittedly having no right in the ferry itself, it became necessary in order to enable them to succeed for the plaintiffs to show that the defendants in the exercise of their admitted rights in a ferry point to point were straving from the line of the ferry and were landing their passengers on the private property of the plaintiffs. It U clear that it would be insufficient for them to show that the defendants were landing passengers at another point on the bank of the river on other public road or public right of way other than the proper terminus a quo. They endeavoured to meet the point by showing, as I have already indicate, that the terminus a quo as also the terminus ad quern were always in Nagapara. This also is clearly insufficient for the plaintiffs purpose but even had it been they have clearly failed in their attempt as the learned Judge in the Court below has held. The evidence upon which they primarily rely for this purpose, as I h we stated was a series of kabuliyats executed in favour of the defendants by their several lessees of the ferry rights. These kabuliyats date from the year 1899 to the year 1917 and are known as Exs. D to D 15. Words to which I have already referred are used "16 annas ghats of Karhil andBandha on both banks within mouza Bahamarpur taluki Nagapara" As recitals they a re evidence against the defendants but having regard to the other evidence in the case which shows that Karhil ghat was in fact in mouza Ratwara it is difficult to conceive that the statements were used in the documents other than for describing the ferry a appertaining to the proprietary interest in Nagapara, although it is the law and the case pleaded by the defendants that their franchise of ferry existed irrespective of any proprietary rights in either village. The Revenue Survey map of 1817 (Ex. 8) of Ratwara and the same Ex. 8 of Nagapara shew the north bank to be RsCtwara and the south bank Nagapara. Exhibit, 9 the Survey map of 1857-1888 discloses the same state of affairs and the cadastral map of Nagapara of 1902-1903 is the same. There are other maps including the map filed with the plaint which also supports the defendants case on this point. A commissioner was appointed in the case and reported andx prepared, a map and this also shows Ratwara on the north bank and Nagapra on the south. There is very little doubt from these documents and the oral evidence that the north bank of the river was in Ratwara. The appellants also endeavoured to meet this part of the case by showing that only when the river had shifted was the noith bank in Ratwara and also by an attempt to show in the trial Court that even if this were so and that Ratwara was on the north bank of the river, the actual possession of the ghat or landing place was in a village Murout adjoining the plaintiffs village to the east, the actual position of the ghat being just beyond the border line of the two mamas. As to this latter point although it was mentioned, no evidence was referred to in this Court in support of the point and' it was not seriously pressed. 6. Before dealing with the question of the change in the banks of the river I should refer to some of the other matters which indicate that Kharil ghat was in Ratwara. The plaintiffs in 1902 claimed in the Survey operations that the entire bed of the river was in their mauza. This was settled by the Officer by deciding that the boundary of the respective mauzas was in the middle of the stream which fact I have already indicated. It is immaterial for the purpose of this point to decide whether the officer's decision was right or whether up had jurisdiction 10 decide the pant but it clearly shows that, contrary to the appellants present contention, their contention at 1 hat time, that to say at the time of the settlement was otherwise and it is all the more important when it is remembered that one of the points of contest in the dispute was the right to this ferry. Again, as the Judge has pointed out the plaintiffs were attempting to deal with this ghat as theirs and as plying in their mauza. This was evidenced by certain kabuliyats, one of 13 8 Fasli for a period of six years, that is from 1320 to 132(5 Fasli (Ex. B) executed by Bansi Singh and by a further kabuliyat in 1912, dated December 19, (Ex. 1) which was executed by Padarath and Pheku Mandal in favour of the plaintiffs with regard to a new or competitive ghat which the plaintiffs were attempting to start. From these kabuliyats it is clear, as the Judge in the Court below has pointed out, that the plaintiffs recognised the Karhil ghat as being in their mauza. 7. To return to the question of change in the course of the river Gogra. It has been said by the appellants that prior to 1325 Fasti that is 1917, the Karhil ghat was always in Nagapara. I have dealt with what appears to be the fact on this point but as to the extent of the change of the river which is admitted there appears to be little evidence. It was stated that by the change the Ka hil ghat was moved from south to north or from east to west and the evidence also is clear that the extent of that change is small; one witness says between one or two rassis. Apart from this there is nothing in the evidence on the point 8. On the case as framed and on the admitted facts, the question whether this ferry was a ferry from, point to point or from villages to villages, to use the classification recognised by the English Law which equally applies to this country, was not decided, but the evidence would appear to indicate that it was a ferry from point to point. If it had been otherwise it would have been no assistance to the plaintiffs. Their only possible cause of action was that the defendants were not landing passengers on a public highway or right of way but on their private property as I have stated. Of this there was not the slightest evidence on the side of the plaintiffs. There was a further argument on this point that the bed of the river changed and it was suggested, it was no more than a suggestion, that as a result there was between the terminus ad quern and the actual river itself a foreshore or plot of land exposed by the change over which the public had no right of way. It was nothing more than a suggestion as I have said, there being no evidence to support it. The evidence on the part of ihe defendants is that the starting point on the north side was a Local Board road. The same is true on the Ratwara side. Evidence which was not seriously disputed to was called to show that on the road leading to the Karhil ghat traffic including bullock carts, pack animals and passengers used the road after disembarking from or embarking on the defendants ferry. These roads were described by the estimator of the Local Board called on behalf of the defendants as roads of the sixth class and of the fact that they were public rights of way, there could be and in fact was, no serious dispute. 9. Again it does not assist the plaintiffs to show, as there has been an attempt to show, that the position of the ghat changed. The reason for this argument was to ask the Court to infer that the change resulted in the necessity of the traffic using a path across the private property of the plaintiffs village. There was no evidence of this as I have already stated although there is some evidence that the ghat itself changed according to the conditions of the river and the seasons. There is evidence on the defendants side that the road leading to Kharil ghat got inundated during the rainy seasons but an alteration of this de cription would not impair the rights of the defendants in the ferry. This was recognised in the case of Hammerton v. Dysart (1916) I.A.C. 57 : 85 L.J. Ch. 33 : 113 L.T. 1032 : 80 J.P. 97 : 37 T.L.R. 592 : 59 S.J. 665 : 13 L.J.R. 1235. Lord Parker states that franchise ferries as known to the English law are either point to point or villages to villages, ferries. In the former case the terminus on either side of the water is a fixed point and cannot be varied at any rate to any substantial extent. Lord Sumner in dealing with another aspect of the matter, namely, the limits of the ferry, the establishment with in which of a rival ferry would be an actionable disturbance, says that special circumstances like the state or progression of the tides, the condition of the weather or season of the year may require that either terminus should be variable from time to time provided always that the public continues to have access to it as of right. In the case there is no evidence that there was a substantial charge in the terminus ad quem that is to say at the Karhil Ghat. To the conditions referred to by Lord Sumner resulting in a change of terminus there must be added in the case of ferries in India, changes in the bed of the river itself, necessitating alterations within reasonable limits of the terminus. This was recognised in the leading case in India of Nityahari Ray v. Dunne 18 C. 652 and as was pointed out in that case, unless such was the case a ferry in India could not legally exist. In this case there is no evidence that the public used any other than the public highways leading to the ghat or that there was any deviation in that road other than that which was necessitated by the flooding of the road in the rainy season. In my judgment the plaintiffs, limited as they were in their cause of action, entirely failed to substantiate it. 10. Under the circumstances it becomes unnecessary to consider the question suggested by the defendants that they had by prescription acquired a right to land passengers and other traffic in the plaintiffs village. Indeed from one point of view had the defendants been driven back to such a case they would most certainly have failed. Franchise of ferry is in a sense a right of the public to be carried from one terminus of a public highway across the river to the terminus of another; in other words, the passage across the river is a continuation of a public highway. Without the right of way to the river bank the franchise cannot exist. To speak of a prescriptive right to land passengers on the property of another disproves the right of ferry unless of course the prescriptive right referred to is in the public to he path or road leading to the river on which the ferry plies. 11. That, in my judgment, disposes of the case. Reference was made to Act I of 1885 which so far as this Province is concerned governs ferries. Under Section 5 (the definition section) private ferries include all ferries other than those declared to be public ferries or declared as such under Section 5 of the Act. Section 6 makes it lawful for the Lieutenant Governor from, time to time to declare what ferries shall be deemed public. This ferry is admittedly not a public ferry within the meaning of the Act. Indeed it has been registered under Section 22 of the Act as a private ferry on January 6, 1910. This Act was quoted presumably with the object of suggesting that as the defendants ferry was not a public ferry but merely a private ferry their rights were in some way limited. It was not suggested in what manner. The Act does not define a private ferry other than by the process of exclusion to which I have referred and in my judgment the Act does no more than enable the Government to regulate and control ferries which under the Act are described as public ferries. It does not prevent the defendants in this case from establishing their right to a franchise of ferry. In my opinion therefore the Act does not assist us in any way in coming to a conclusion in this case. As I have already stated, the plaintiffs case is a limited one. There is no evidence to support their claim. Sir Sultan Ahmad who appears on behalf of the appellants contented himself with re-erring to the defendants evidence with a casual reference to his own oral evidence but did not rely on any document which his clients produced in the case. In my judgment the decision of the learned Subordinate Judge was correct although his reasons are somewhat different from those which I have expressed in this judgment. The result therefore is that this appeal is dismissed with costs. One third of the costs will be paid to respondent No. 1, one-third to respondent No. 2 and the remaining third to respondents Nos. 3 to 18. Kulwant Sahay, J.
12. I agree.