Document Fragment View

Matching Fragments

Turning attention on to the fact situation of the matter in issue be it noted that the present litigation has been between the Barai community being the proprietors of certain tanks in the village known as Mathurasagar and the fishing community called the Dhimars of Ramtek, which happen to be represented by Tulsi Ram & Ors., being the appellants herein. It is not in dispute that there was a group of five tanks in this village, water from which was drawn for the purpose of irrigation by the Barais who had betel leaves plantations. These tanks at one time presumably were also a good fishing ground and fish used to be caught and collected by the fishermen community in the neighbourhood. The tanks are artificial and as the record goes to show and suggest, were privately owned. As both the communities were interested in the maintenance of the tanks and water therein for their benefit, some arrangements seem to have been arrived at and the same came to be recorded and noted in a document popularly described as Wajib-ul-arz having statutory recognition under the C.P. Land Revenue Act. Significantly, both parties to the litigation presently under consideration admit that arrangement which prevailed between them since a long time, first made its appearance in the Wajib-ul-arz in the year 1862 at the time of settlement of the year 1862-63. This continued in the next settlement of the year 1892-

In the year 1954, the present plaintiffs commenced a suit being Civil Suit No.10A/54 praying for an injunction to restrain the defendants being the Appellants herein from catching fish in the said tanks and also for damages. When that suit reached the stage of second appeal in the High Court being Second Appeal No.398 of 1959, it was allowed to be withdrawn with liberty to file a fresh suit. The present suit is a sequel to the suit which was withdrawn and was filed on 9.8.1963. Leave under Order 1 Rule 8 Civil Procedure Code was obtained and the suit thereafter was proceeded with and contested in a representative capacity - the plaintiffs being the Barais and the defendants, the Dhimars or fishermen of Ramtek.

On a perusal of the pleadings it appears that the defendants (presently the appellants herein) have been rather candid with their defence to the effect that question of there being any permission for the catch and collection of fish or its removal, would not arise since such activities were within their own rights by reason of the grant. It is on this score, the High Court in the second appeal commented to the effect : "It is significant to note that the written statement does not show or claim that the right to catch fish was claimed only on behalf of some Dhimars or some Dhimar family only and not on behalf of all Dhimars of Ramtek." The suit however, came to be decided in favour of the defendants upholding the right in terms of the grant.

In the judgment impugned the issue pertaining to the Dhimars of Ramtek and the particular connotation to be attributed thereon has been dealt with in the manner set out hereinbelow. The High Court in the judgment impugned upon consideration of the submissions as recorded in the plaint as well as the written submissions stated as below :

"In the face of the aforesaid statement in the written statement understood in the context of the plaint laid, which refers to the defendants as All Dhimars of Ramtek", I do not think it possible for Mr. Padhye to contend that the right was claimed by the named defendants only, and not by all Dhimars of Ramtek or by these defendants and not as representing all the Dhimars of Ramtek. As I pointed out, the defendants did not dispute in their written statement that they cannot be representing all the Dhimars of Ramtek as their interest do not coincide. It is also not contended that some Dhimars from Ramtek are excluded."