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Judgment
Mohammad Noor, J.—This second appeal is by defendant 1 in a suit for recovery of possession of half of the bed of the river Barakar as appertaining to the plain tiff''s mukarrari tenure of village Chirkunda. This river lies between villages Chirkunda and Barakar. The former appertains to the estate of Pachet in the District of Manbhum, belonging to defendant 1, and the latter to the estate of Raja of Kasimbazar and is situated in the District of Burdwan. According to various survey maps half of the bed of the river is included in one village and half in the other. Village Chirkunda was granted in brahmottar tenure by a former Raja of Pachet to the Goswamis of Chirkunda sometime before 1190 B.S. The actual grant is not available. The Goswamis granted the village in the year 1862 in mukarrari to the plaintiff under a deed of that year. During the Last settlement operations of Manbhum while the plaintiff''s mukarrari right was recorded in respect of the main village it was not so recorded in respect of half of the bed of the river appertaining to it, which was recorded in the direct possession of defendant 1. The plaintiff therefore instituted the present suit for recovery of possession of half of the bed of the river on the ground that it was included in the brahmottar grant of the Goswamis and also included in the mukarrari granted by the Goswamis to them. The Munsif, who tried the suit, dismissed it; but on appeal the learned Subordinate Judge of Manbhum, has decreed it and defendant 1 has preferred this second appeal.
The only issue which was to be tried in the suit was whether the brahmottar grant by the former Raja of Pachet included half of the bed of the river which appertained to the village and whether the plaintiff proved his possession over the disputed bed within 12 years of institution of the suit. It was clear and practically not disputed that the mokarrari deed granted by the Goswamis to the plaintiff included the disputed half of the river bed. The judgment of the learned Munsif, as has been pointed out by the learned Subordinate Judge in appeal, is long and contains discussions on points of law which were not quite necessary for the purposes of the case. A very large portion of it has been devoted in discussing the question whether half of the bed of the river in fact appertains to village Chirkunda. A number of maps have been considered by him and a large number of decisions cited. No doubt, in the written statement the defendant had denied that half of the bed of the river, which was in dispute in the suit, did not appertain to village Pachet, but this was a dental for denial''s sake. In fact, defendant 1 himself has been recorded in respect of the disputed bed of the river as proprietor of Chirkunda and it does not seem to me that any serious dispute was raised before the learned Munsif about the half of the bed of the river being included within the ambit of the village Pachet. The learned Munsif has referred to the rule of middle thread to show that when a river intervenes between two villages half of the bed appertains to one and the other half to the other. He has done so in order to show that half of the bed of the river must be taken to have always appertained to village Chirkunda.
Coming to the question of possession of the plaintiff within 12 years'' of institution of the suit, both parties adduced evidence of acts of possession over the disputed bed of the river by leasing out fisheries to various tenants. The learned Munsif however does not seem to me to have decided either in favour of one or the other. His conclusions seem to be that neither party was in possession of the river adversely to the other and therefore the suit must be decided on the basis of title. On appeal the learned Subordinate judge has definitely found that the plaintiff established their possession over half the bed of the river within 12 years of institution of the suit and further found that the evidence in this respect adduced by defendant 1 was entirely unsatisfactory. Therefore so far as the question of limitation is concerned, it is concluded by the finding of fart of the learned Subordinate Judge and in fact the question was not raised before me by the appellant in this second appeal.
Now, the only point contended by the appellant before me was that the brahmottar grant by the Raja of Pachet to the Goswamis did not extend to all the lands situated within the ambit of village Chirkunda and did not include half of the bed of the river which obviously appertains to it. The learned Munsif while deciding'' this point commenced rightly, but further on his judgment is not very clear. Coming to the grant by the Raja of Pachet to the Goswamis, he remarks as follows:
While discussing the evidentiary value of the revenue and the thak Survey maps (those were Considered by the learned Munsif while deciding whether or not half of the bed of river Barakar appertains to village Chirkunda) I have held by reference to Exs. 1, 5 series and 12 that the ex-(sic) this grant must be deemed to include in refer reference to the area half the bed of the river Barakar, that is the disputed plots also. This is quite in harmony with my finding on the question of possession of the river-bed.
So far he is correct, but later on he has proceeded to consider the question whether the grant to the Goswamis included the mineral rights as well. He referred to the decision of their Lordships of the Judicial Committee in Raghunath Roy v. Durga Prashad Singh, 1919 PC 17 = 50 IC 849 = 46 IA 158 = 47 Cal 95 (PC), which was to the effect that a grant by a zamindar of a tenure of land in the zamindari did not include the grant of mineral rights also. No question of mineral rights arose in this case. The plaintiff''s case was that the brahmottar grant by the Raja of Pachet to the Goswamis was for the entire village without exclusion of any area of land. The only question therefore was whether the grant by the Raja of Pachet extended over the entire area of the village. The learned Munsif has rightly drawn a distinction between the grant of an entire right of a proprietor and the creation of a tenure. In the former the grantor divests himself of all his rights in the property granted, while in the latter he grants a tenure, reserving to himself the proprietary right, but it does not follow from this that the grant of a tenure of a village necessarily excludes any specific area from the grant and that the grant of a tenure of the entire village will not include all the lands situated within the ambit of the village.
No doubt, in spite of the grant certain rights remained vested in the proprietor. But that is quite a different matter. The learned Subordinate Judge however has rightly appreciated the scope of the suit. He has held that there was no evidence to support the view that when the "village" was granted in brahmottar to the Goswamis by the then Raja of Pachet half of the river bed, which is obviously included in the village, did not form part of it. On the other hand on the documents before him he came to the conclusion that the bed of the river was all along included within village Chirkunda. He has also found that the "village", i.e., the entire village was granted in brahmottar right to the Goswamis. To me it seems that the case is concluded by the finding of fact by the learned Subordinate Judge. The question whether a particular grant included a specific area of land is mainly a question of fact and the finding of the learned Subordinate Judge seems to me to be conclusive.
Mr. Mullick appearing on behalf of the appellant has urged only two points before me. First of all he contended that in ancient times the village had no defined boundary and a grant of a tenure of a village must be taken to mean only the inhabited portion of it along with the cultivated lands and nothing more and that the grant in question did not extend to all the lands including half of the bed of the river which is now included within the ambits of Chirkunda. The point has been dealt with by the learned Munsif and he has shown by reference to the literature on the subject that from a very long time a village meant not only the inhabited portion of it and the cultivated lands attached to it, but also uncultivated lands. The existence of the village with defined boundaries has been coming on from a long time and there is nothing to show that this was not so when the brahmottar tenure was created by the former Raja of Pachet in favour of the Goswamis.
The next contention has been that a grant of a tenure does not include mineral and fishery rights and that the river bed is of value only so far as fisheries are concerned and that could not be held to be included within the grant. The contention so far as it relates to mineral rights is well-founded, but we are not concerned with mineral rights, but with surface rights, and fisheries are not underground rights. He has relied upon the case of Hari Narayan Singh Deo v. Sriram Chakravarti, (1910) 37 Cal 723 = 6 IC 785 = 37 IA 136 (PC) at p. 730. Their Lordships of the Judicial Committee were dealing with the question of the right of a zamindar and they referred to Field''s Introduction to the Regulations of Bengal where the learned author says:
A zemindar can grant leases either for a term or in perpetuity. He is entitled to rent for a land lying within the limits of his zamindari, and the rights of raining, fishing and other incorporeal rights are included in hi a proprietorship.
There is nothing in the judgment of their Lordships to show that they ever held that the grant of a tenure though it does not convey with it the underground rights does not convey fishery rights also. On the other hand, there are clear decisions of our own Court in this respect. In Henry Hill & Co. v. Sheoraj Rai, 1922 Pat 9 = 64 IC 346, it was held that if a proprietor lets out the land first, he cannot claim the right to the water and fish that come upon the laid afterwards. The landlord may of course reserve the right of fishery when letting out the land, but such a reservation is strictly speaking grant of the right by the tenant to the landlord. In another case of Jaigobind Singh v. Bhawani Singh, 1930 Pat 382 = 125 IC 141 = 9 Pat 401, it was held that the settlement of land carried with it, in the absence of express reservation, the right to fish when there is water on the land. In my opinion, if a landlord creates a tenure of the entire village the tenure extends over all the lands included within the ambit of the village and includes fishery rights situated therein. This applies to the bed of a river like Barakar, which is admittedly not a navigable I river. Though the English Law does not always apply to India, it will be useful to note that the law in England is exactly what I have held in this case. In Halsbury''s Laws of England, Vol. 3, p. 139, it is laid down that:
where there is a conveyance of land said to be bounded by a fiver, then, even although it is described by reference to a plan or by quantity, the true construction of the instrument is that half the Led of the river passes under the conveyance, unless there is enough in the circumstance or enough in the oppression of the instrument to show that this is not the intention of the parties.
The case before me is much stronger. Here it is clear that half of the bed of the river is included within the village and the grant of the brahmottar was of the entire village, and there is nothing to show that anything was excluded. In my opinion, there is no merit in this appeal and I dismiss it with costs.