Holding

A lost grant cannot be presumed for an indefinite community; the right to fish was only a licence, not a custom or profit‑a‑prendere, and the High Court’s order stands.

Summary

The dispute involved the Barai community, owners of a group of tanks used for betel leaf irrigation, and the Dhimar fishing community who had been allowed to fish in those tanks under a historic Wajib-ul-arz agreement. The Barais sought an injunction to stop the Dhimars from fishing, claiming the right was only a licence, while the Dhimars argued that the agreement created a hereditary, customary right or a lost grant. The Supreme Court examined the doctrine of lost grant and held that a grant cannot be presumed for an indefinite, fluctuating body of persons; the Wajib-ul-arz merely conferred a licence to fish, not a perpetual custom or profit‑a‑prendere. Consequently, the High Court’s order denying the Dhimars’ claim was upheld and the appeal dismissed. The Court also directed that future fishing rights be auctioned and mesne profits continue until then.

Issues considered

Whether a lost grant can be presumed in favour of an indefinite, fluctuating community or class of persons.
Whether the fishing right claimed by the Dhimars constitutes a valid custom, easement, or profit‑a‑prendere enforceable in law.
Whether the Wajib-ul-arz document creates a perpetual hereditary right or merely a licence with consideration.
Effect of the Madhya Pradesh Abolition of Proprietary Rights Act on the alleged fishing rights.
Appropriate mode of allocation of fishing rights pending resolution (auction).

Legislation cited

Code of Civil Procedure, 1908s. Order I Rule 8
Easement Act, 1882s. 15
Land Revenue Codes. 225

Subjects

lost grant doctrinecustomary rightprofit-a-prendrelicencewater tank ownershipfisheries rightsinjunctionland revenue lawEasement ActMadhya Pradesh Abolition of Proprietary Rights Actauction of rights

Judgment

A TULSI RAM AND ORS.
v.
MATHURA SAGAR PAN TATHA KRISHI AND ANR .

. NOVEMBER
:;... 12, 2002

B [UMESH C. BANERJEE AND Y.K. SABHARWAL, JJ.]

Doctrine of 'lost grant'- Presumption ofin favour ofan indefinite body
ofpersons and members ofa particular community-Owners ofa tank allowing
C !'Jer of their tank to a community for fishery .under an agreement a century
ago on payment for maintenance of tank-Owners seeking injunction against
user of tank-Other party claiming right by reason. of grant-Held: It cannot
claim lost grant since what was granted to it was only license to fish-Land
laws.

D Barais community, owners of tanks in a village used to draw water
for irrigation of betel leaves plantations and appellants-Dhimars, a fishing
community used to catch fish from the said tanks. For maintanence of
tanks and water therein, Barais community and appellants-Dhimars
entered into an arrangement under a document 'Wajib-ul-arz' which
prevailed last between the parties in 1942-43. In 1951, Madhya Pradesh
E Abolition of Proprietary Rights Act came into force and the tanks in
dispute were treated as ownership of Barais. Later on Barais filed
injunction suit restraining appellants from catching fish in the said tanks.
Appellants contended that the fishing activities were within their right in
terms of the grant. Both trial Court and First Appellate Court upheld
F their right. High Court negatived the rights of appellants since the lost
grant of such kind could not be presumed to be existing. Hence the present
appeals.

Appellants-Dhimars contended that Wajib-ul-arz is a record of rights
which recognizes the right of appellants not as a licensee but as a definite
G and ascertained body of persons having irrevocable hereditary right from
generation to generation absolutely and the effect of such documentary
evidence cannot be wiped out or be rendered nullity without a declaration
to that effect by civil court; that appellants cannot be deprived of their
right as ffaqdars; that the right is based on custom from time

H 104
,•
TULSI RAM v. MATHURA SAGAR PANTATHAKRISHI 105

immemorial and as such question of interference by High Court in second A
appeal would not arise; that the right existed not in an unascertained body
but a class determinate; and by reason of the uninterrupted user of the
tank, Barai obtaining the benefit of cash payment in lieu of half the catch
and this cash benefit used to be spent for the development and maintenance
of tanks rather than individual enjoyment therefrom, a right stands B
conferred on to appellants as a customary right and thus enforceable.

Respondents contended that a body of persons, which is
indeterminate and fluduating can neither be the recipients of a grant nor
claim a customary right to enter upon and take away profit-a-prendere·
alieno solo; and that the alleged grant was never in favour of individuals. C
Disposing of the appeals, the Court

HELD: I.I. If a right cannot be conferred, no grant can be presumed
in favour of an indefinite body of persons and members of a particular
community though of a village in such a body of persons. [113-B] D
1.2. If the Wazib-ul-arz of 1942-43 is construed as showing a grant
having been in favour of the individuals, it is plain that it was not in favour
of their families, heirs or descend~nts in perpetuity, and must, therefore,
expire with the expiry of individuals. If it is construed as a grant in favour
of, or custon1 enuring to the benefit of families, heirs, descendants and all E
manner of successors or assigns, the body of persons again becomes
fluctuating and thus renders the same incapable of legal recognition of
the grant or claiming a customary right. The exercise of right destroys
the subject matter is clear from the submission that the appellants put in
seeds of fishes. Obviously, the fish are caught and consumed or sold for

- gain. The fishery gets exhausted. Then it is replenished with fresh seeds
to have a new lot of fishes. It is as though some people claimed the right
to come upon another's land, sow and reap crops repeatedly for eternity.
It would leave the owner with merely the husk of ownership while it would
really virtually vest in those who,,claim such an absurd right, not as
F

permissible user or activity but as of right, and in the bargaining process, G
even have the Barais community maintain the tanks for the appellant-
Dhimars. As a matter of fact only a licence to fish was granted and the
same stands corroborated by the fact that there was even consideration
therefore viz. the amount that was to be paid by the fishermen. It was
used for the maintenance of the tanks not for the sake of the fishermen
but for the purposes of the owners; for utilizing the tanks for cultivating H
106 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A betel leaves which was and is their occupation. This was particularly so
because the body of Barais community was larger than that of appellant-
Dhimars and it was in their common interest that the tanks which were
the sole source of water for cultivation for the betel leaves were
maintained. 1115-G, H; 116-A-D)

B Therefore the order of High Court is not interfered

Raja Braja Sunder Deb v. Moni Behara and Ors., 11951) SCR 431;
Laxmidhar Misra v. Rangalal, AIR 37 (1950) PC 56; Asrabulla v. Kiamatulla,
AIR (1937) Cal. 245; Bholanath Nundi and Ors. v. Midnapore Zemindary
Company Ltc/. and Ors., LR (31) Indian Appeals 75 and Bihar v. S.G. Bose,
C [1968) 1 SCR 313, referred to.

Lol'd Rivers v. Adams, L.R. 3 Ex. Div.361 and Harris and Anr. v. Earl
of Chesterfield and Anr., (1911) A.C. 623, referred to.

2. In the connected appeal the appellants did not deal in fish whereas
D respondents-Dhimars dealt with the same. Strict enforcement of individual
rights will create a situation not only of further stiffening of attitude of
I
each Qf t~e parties towards the other but this may lead to economic
instability which respondents-Dhima·rs may suffer. Therefore it is directed
that the fishing rights be auctioned and the rights thereof be conferred
E OIJ to the highest bidder. It is further ordered that till the auction takes
place, mesne profits as determined by this Court shall continue to be paid.
[116-FJ

CIVIL APPELLATE JU~JSDICTION : Civil Appeal No. 1170 of
1980.

F · From the Judgment and Order dated 17118.4.1980 of the Mumbai
High Court in S.A No. 350 of 1967.

WITH

C.A. No. 645 of 1981.
G V.A. Bobde, Uday Umesh Lalit, Shyam Mudaliar, Ms. Gauri Gupta,
A.K Sanghi, K.L. Taneja, N. Mahabir, R.R. Chandrachud and Shree Pal
Singh, for the appearing parties.

The Judgment of the Court was delivered by

H BANERJEE, J. Since the decision of this Court in Braja Sundar (Raja
TULSI RAM v. MATH URA SAGAR PAN TATHA KR ISHI [BANERJEE. J.]107

Braja Sundar Deb v. Mani Behara and Ors., [ 1951) SCR 431, the legal A
phenomena pertaining to the doctrine of 'lost grant' seems to be well settled.
This Court in Braja Sundar (supra) upon reliance on the observations of Lord
Radcliffe in Laxmidhar Misra v. Ranga/a/, AIR 37 (1950) PC 56 stated as
below:

" .......... This doctrine has no application to the case of inhabitants of B
particular localities seeking to establish rights of user to some piece
of land or water. The doctrine of lost grant originated as a technical
device to enable title to be made by prescription despite the
impossibility of proving immemorial user and that since it originated
in grant, its owners, whether original or by devolution, had to be such C
persons as were capable of being the recipients of a grant, and that
a right exercisable by the inhabitants of a village from time to time
is neither attached to any estate in land nor is it such a right as is
capable of being made the subject of a grant, there being no admissible
grantees.'!
D
This Court further in Braja Sundar (supra) upon reference to a Bench

- decision of the Calcutta High Court in Asrabul/a v. Kiamatul/a, AIR (1937)
Cal. 245 was pleased to observe that no 'lost grant' can be presumed in
favour of a fluctuating and unascertained body of persons.

It would be convenient at.this stage, however, to note in slightly more E
greater detail the observations of Lord Radcliffe in Laxmidhar Misra (supra)
as below :

"6. The doctrine of lost grant gives no firmer basis for the appellants'
case. This doctrine originated as a technical device to enable title to
be made by prescription despite the impossibility of proving
F
"ilnmemorial user". By English common law prescription had to run
' from time immemorial which by convention began in the year 1189.
If it was possible to demonstrate that the user in question, though
ancient, originated since 1189 the proof of title by the prescription of
immemorial user failed. To get round this difficulty, Judges allowed G
or even encouraged juries to find that the right in question, though
less ancient than 1189, originated in a lost grant since that date. Thus
the right acquired the necessary legal origin. But such a right just as
much as an easement, had to be attached to and to descend with an
estate : moreover, since it originated in grant, its owners, whether H
original or by devolution, had to be such persons as were capable of
108 SUPREME COURT REPORTS [:2002] SUPP. 4 S.C.R.

A being the recipients of a grant under English law. A right exercisable
by the inhabitants of a village from time to time is neither attached
to any estate in land nor is it such a right as is capable of being made
the subject of a gnint. There are no admissible grantees. In fact the
doctrine of lost grant has no application to such rights as those of the
inhabitants of a particular locality to continue an ancient and
B est~blished user of some piece of land."

Turning attention on to the foct 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
C fishing community called the Dhimars of Ramtek, which happen to be
represented by Tulsi Ram and 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
D in the neighbourhood. The tanks are artificial amt as the record goes to show
and suggest, were privately owned. As both th!.l communities were interested
in the maintenance of the tanks and w&ter 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 statuto'ry
E 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 tim!'l, 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 1892-93. Then again in the
F third settlement year 1914-15 and subsequently also, in 1942-43.

On the factual score it further appears that in the year 1951, the Madhya ,.
Pradesh Abolition of Proprietary Rights Act came into· force and the rights
of Malguzars-proprietors in these lands were extinguished. In some cases,
however, as provided under the Act certain rights were conferred upon the
G Malguzars and it is not in dispute that so far as the present tanks and lands
are concerned, the tanks were treated as of the ownership of Barais.

Jn the year 1954, the present plaintiffs commenced a suit being Civil
Suit No. I OA/54 praying for an injunction to restrain the defendants being the
Appellants herein from catching fish in the said tanks and also for damages.
H When that suit reached the stage of second appeal in the High Court being
TULSI RAM v. MA THU RA SAGAR PAN TATHA KRISHI [BANERJEE. J.]I 09

Second Appeal No.398 of 1959, it was allowed to be withdrawn with liberty A
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 I 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 ..
B
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 C
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.
D
Aggrieved by the decision, the plaintiffs came in appeal before the
District Judge, Nagpur in Civil Appeal No.308/65 and the learned District
Judge, however, also was pleased to dismiss the appeal and affirmed the
judgment and decree passed by the learned trial Judge. The first appellate
Court held that the right to catch and carry away fish from the tanks was
"profit-a-prendre" and that "defendants and their ancestors have been enjoying E
the right to catch fish in the suit tanks uninterruptedly." In fine, the first
appellate Court stated : "The right of fishing in the suit tanks is being enjoyed
by the Dhimars uninterruptedly for over I 00 years and in view of long
uninterrupted user, it could be presumed that the origin of the right of the
Defendant was in a grant which cannot now be traced." In other words, p
according to the learned Appellate Judge, the nature of the right was the right
to share in the profit-a-prcndre which was in an immovable property and was
a permanent grant made in favour of Dhimars. There was, therefore, no
question of any licence being granted by the plaintiffs and the suit, therefore,
,n his opinion was rightly dismissed. Accordingly, the appeal was dismissed
and the judgment and decree passed by the learned trial Judge was confirmed. G
The matter, however, did not rest there and the plaintiffs moved the
High Court in second appeal, wherein the rights of the defendants stand
expressly negatived and hence the appeal before this Court under Article I 36
of the Constitution upon the grant of leave.
H
110 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A Before proceeding with the matter further the conclusion as recorded
by the High Court in paragraph 64 of the impugned judgment ought to be
noticed.

"The result, therefore, is that the defendants Dhimars of Ramtek
cannot claim this right to fish in the Mathurasagar tank either by way
B of a lost grant or by way of custom. A lost grant of this kind cannot
be presumed as existing or could have been made in favour of an
indefinite and indeterminate body of persons being inhabitants of a
particular place capable of increase and decrease. The right cannot
also be considered and recognised, for such a right would be
unreasonable, being destructive of the subject matter itself if exercised,
c and if could be exercised as permitted and to that extent. If an indefinite
body of person, and if a large ;1umber of persons were authorised to
exercise such a right and if there was no restriction of whatever kind,
then a customary right which could produce such a result must be
deemed to be unreasonable, and therefore, unenforceable in a court
D of law. There has been no claim of this right to fish either as a lease
or as an easement. The observation above and a reference to the
aforesaid authorities would clearly also go to show that such a right
cannot be claimed either by way of easement or as a tenancy right
much less by an indeterminate body of persons belonging to a c.ertain
,. community or from a certain area. Consequently, the Second Appeal
E
"
~ .
must succeed. The decision of the Courts below is set aside and the
plaintiffs suit decreed with costs."

Mr. Uday Umesh Lalit, Advocate, appearing in support of the appeal
have been rather vocal as regards the factum of Wajib-ul-arz, which in fact
F recognises the right of the defendant (Appellants herein) not as a licensee but
as a definite and ascertained body of persons having irrevocable hereditary
right from generation to generations absolutely and upon reference thereon
contended that the effect of such documentary evidence cannot be wiped out
or be rendered a nullity without a declaration to that effect by the Civil Court.
It has been his definite contention that Wajib-ul-arz cannot but be termed to
G be a record of rights. Alternatively, it is Mr. Lalit's further submission that.
at least the appellants cannot be deprived of their right as Haqdars and in the
second alternative Mr. Lalit contended that it is a right based on custom from
time immemorial as such question of interference by the High Court in second
appeal would not arise. Lastly, Mr. Lalit contended that it is not an
H unascertained body but a class determinate.
TULSI RAM v. MA TH URA SAGAR PAN TA THA KRJSHI [BANERJEE. J.]111

We shall deal with the submissions presently. but before so doing, the A
observations of the Judicial Committee of Privy Council in Bholanath Nundi
and Ors. v. Midnapore Zemindw)• Company ltd and Ors., (LR (31) Indian
Appeals 75) on which very strong reliance has been placed by Mr. Lalit,
ought to be noticed. Lord Macnaghten, speaking for the Bench stated :

"The case, as presented by the plaintiffs, on the face of it and in B
substance, seems simple enough. It appears to their Lordships that on
proof of the fact of enjoyment from time immemorial there could be
no difficulty in the way of the Court finding a legal origin for the
right claimed. Unfortunately, however, both in the Moonsiffs Court
and in the Court of the Subordinate Judge, the question was overlaid, C
and in some measure obscured, by copious reference to English
authorities, and by the application of principles of doctrines, more or
less refined, founded on legal conceptions not altogether in harmony
with Eastern notions. The result is that, although the decree appear to
be justified by the main facts, which both the lower Courts held to be
established, it is impossible to say that the judgments delivered are D
entirely satisfactory."

It is on this judgment, Mr. Lalit appearing in support of the appeal, has
been rather emphatic on to his submission that the right did not exist in an
unascertained family of Dhimars but among certain families of which the
appellants are the representatives and since it was given to a certain number E
of persons, question of there being any infraction of any law does not arise
and the sa111e ought to be treated as in the nature of lost grant. The existence
of such a right for such a long period of tiine for over a century was enjoyed
by the group of Dhimars continuously and uninterruptedly and the Barais
also did obtain the benefit of cash payment in lieu of half the catch and this
cash benefit used to be spent for the development and maintenance of tanks
F
rather than individual enjoyment therefrom. Mr. Lalit further contended that
a Khasra record available with the State depict this long and uninterrupted
user of the tanks to the exclusion of all others and question of dispossession
from the same would not arise : the revenue record is a record of right
capable of being enforced and enjoyed by a specified group of people though G
unascertained. By reason of the uninterrupted user of the tank, a right. stands
conferred on to the appellants herein as a customary right and thus enforceable.

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 H
112 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A 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
B 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
c from Ramtek are excluded."

The High Court thereafter, however, went on to observe that ir. the very
nature of things such a right would be a matter of contract and would not be
classified. As a customary right, the same can never be claimed since it is a
D right in respect of a contract between the Barais and Dhimars relating to
certain property, entered into between the parties at that point of time and it
is on t~is score further the High Court negated the submission that the right
existed or was granted to only some of the Dhimars from the village. The
High Court further observed :

E "........... That this was continued and was to run from the period of
one settlement to the other. Such a concept necessarily presupposes
a contract being renewed from time to time and the rights of the
contracting parties in accordance with the terms of the contract itself
and lapsing after the period of contract. No such suggestion appears
at any time anywhere in the entire conduct and trial of this suit. One
F must, therefore, proceed on the footing, as was done in the Courts
below that the dispute between the parties was in respect of rights
which were claimed by one community against the proprietors of the
tanks represented by some members of other community. It was in
that sense a representative suit against the Dhimars brought by one of
G the numerous. holders of interest in the tanks of the Barais in a
representative capacity. That disposes of the first contention which
was raised by Mr. Padhye."

Incidentally, be it noted that the first appellate court came to a conclusion
that even if a right cannot be accepted as can be acquired by custom in a
H fluctuating body of persons, it cannot be said tha~ the villagers of a particular
TULSI RAM v. MATH URA SAGAR PANT ATHA KRISHI [BANERJEE. J.]113

community in a village can be regarded as a fluctuating body of persons. The A
High Court negated that sub1nission and we do feel it expedient to record our
concurrence therewith since there see111s to be a111ple justification therefor.
The decision of the Calcutta High Court in Asrubu//a (supra), which stands
subsequently approved by this Court in Braja S1111dar (supra), the law seems
to be well settled that if a right cannot be conferred, no grant can be presumed B
in favour of an indefinite body of persons and members of a particular
community though of a village in such a body of persons.

This Court in Bihar v. SG. Bose, [1968] I SCR 313 stated:

"A claim in the nature of a profit-a-prendre operating in favour
of an indeterminate class of persons and arising out of a local custom (:::
may be held enforceable only if it satisfies the tests of a valid custom.
A custom is a usage by virtue of which a class of persons belonging
to a defined section in a locality are entitled to exercise specific rights
against certain other persons or property in the same locality. To the
extent to which it is inconsistent with the general law, undoubtedly D
the custom prevails. But to be valid, a custom must be ancient, certain
and reasonable, and being in derogation of the general rules of law
must be construed strictly. A right in the nature of a profit-a-prendre
in the exercise of which the residents of locality are entitled to excavate
stones for trade purposes would ex facie be unreasonable because the
exercise of such a right ordinarily tends to the complete destruction E
of the subject-matter of the profit It is said in Halsbury's Laws of
England, 3rd Edn. Vol.I I, Art. 324 at p. 173 :

"If a right in alieno solo amounts to a profit-a-prendre it cannot
be claimed under an alleged custom; for no profit-a-prendre and
therefore no right of common can be claimed by custom except
F
in certain mining localities; nor can there be a right to a profit-
a-prendre in an undefined and fluctuating body of persons."

The view as appears stands supported by a considerable body of authority
in a long catena of cases. In lord Rivers v. Adams, (L.R. 3 Ex. Div. 361) it G
was held that the right claimed by inhabitants of a parish to cut and carry
away for use as fuel in their own houses faggots or haskets of the under-
wood growing upon a common belonging to the lord of the manor is a right
to a profit-a-prendre in the soil of another : such a right cannot exist by
custom prescription, or grant, unless it be a Crown grant which incorporates
the inhabitants. The House of lords in Harris and Anr. v. Earl of Chesterfield H
114 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A and Anr., .( 1911 A.C. 623) held that a prescription in a que estate for a: profit-
a-prendre in alieno solo without stint and for commercial purposes is unknown
to the law. In the case of Harris and Anr., ( 1911 A.C. 623) the freeholders
in parishes adjoining the river Wye were in the habit of fishing a non-tidal
portion of the river for centuries, openly, continuously, as of right and without
interruption, not merely for sport or pleasure, but commercially in order to
B sell the fish and make a living by it. The riparian proprietors claiming to be
owners of the bed of the river brought an action of trespass against the
freeholders for fishing. It was held by a majority of the House of Lords that
the legal origin for the right claimed by the freeholders could not be presumed
and that the action by the plaintiffs was maintainable.
c Mr. Bobde, however, contradicted the basic submission of Mr. Lalit
and contended :

A body of persons, which is indeterminate and fluctuating by reason of
births and deaths, influxes and effluxes, can neither be the i:ecipients of a
D grant nor claim a customary right to enter upon and take away profit-a-
prendere in alieno solo (Latin for on another's land and in French the
equivalent term is 'en autre soile').

Mr. Bobde further made a sharp distinction between a customary right
to profit-a-prendere for commercial purposes from that of home use or sport,
E and the same is unknown to law.

In India, Mr. Bobde contended further that under the Easement Act,
1882, prescription of easements is permissible under Section 15. An easement
may include profit-a-prendre, but not profit-a-prendre in gross i.e. where
there is no dominant heritage for which there is corresponding servant heritage.
F The profit-a-prendre in gross in English law flows from the English common .
law and the Prescriptions Act, 1832. As the customary tights to. other profit-
a-prendre or other easement~ in India, it will be necessary to prove a: legal
and valid local custom and to be a lega1'and valid custom in relation to_profit- ·
a-prendre, a custom alleged must above all, be reasonable. Whe~her the exercise
G of a right claimed is by a body of persons which can grow or change .
. indefinitely and which is not capable of having a succession in any reasonable
sense of the term, or where the exercise of the right tends to destroy the
subject matter of the right, the alleged custom is ex-facie unreasonable and
cannot be sustained in law. It is in this context that Mr. Bobde has taken
recourse to Section 47 of the Abolition Act and Section 225 of the Land
H Revenue Code and stated that the same are the legal filters through which an
TULSI RAMv. MATH URA SAGAR PAN TATHA KRISHI [BANERJEE. J.]115

alleged practice/contract 1nust pass to be even claitned as a custom. Once a A
claiin is made, scrutinised and rejected by the co1npetent authority and no
suit is filed by the aggrieved party. it is not open to that party to allege and
prove ~he custo1n in a Court of Law as a defence to a suit.

It was next contended that the vast and vital difference between a suit
and a defence, in the context of Section 225 of the Land Revenue Code, is B
that a suit by an aggrieved party can reopen the question closed by the order
under the statute. Once limitation for suit expires,. the extinguishment of
remedy extinguishes the right - ubi jus ibi remedium - and the other party is
entitled to act on the basis of the order as a final and conclusive decision on
the existence or otherwise of the alleged custom. When the successful party C
goes to Court to injunct or evict a trespasser, it is not open to the Defendants
then to reagitate the question whether there was a customary right

The public policy reflected in the post-independence Jaws cannot be
allowed to be defeated, the policy being that 'rights in or over land' which
is a State subject in Entry 18, List Vil, fall within the exclusive domain of D
the State and once the State authorities have determined the existence or
absence of those rights, finality must attach to such determination in the
public interest and the interests of justice, submitted Mr. Bobde. The object
of the policy also is to prevent long litigation spanning decades or generations
on a subject that is made the exclusive and final do1nain of statutes, unless
of course the aggrieved party goes to Court in accordance with Section 225. E
It is trite la\.\1 that when a law says that a thing is to be done in a certaiI_1 way,
it must be done in that way alone and no other. The Courts' sole function-
indeed its "sworn duty and trust" (De Grey CJ in the Duchess of Kingston's
case (1775-1802) All E.R. Rep. 623 at 628 C) is to uphold and administer the
law and do justice in accordance therewith.
F
Mr. Bobde further contended that the alleged grant was never in favour
of individuals. No such plea was ever raised in the lower Courts which
decided the suit and first appeal. The Courts proceeded on the footing that
it was a representative action. If the Wazib-ul-arz of 1942-43 is construed as
showing a grant having been in favour of the individuals mentioned in Ex. l l 7 G
(viii), it is plain that it was not in favour of their families, heirs or descendants
in perp,tuity, and must therefore expire with the expiry of individuals
mentioned therein. If it is construed as a grant in favour of, or custom enuring
to the Jenefit of families, heirs, descendants and all 1nanner of successors or
assigns, the body of persons again becomes fluctuating' and thus renders the
sa1ne incapable of legal recognition of the grant or clai1ning a customary H
116 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A right. The exercise of right destroys the subject matter is clear frofn the
·written Statement. Itself wherein, at p. 142, the Defendants state that they
put in seeds of fishes. Obviously, the fish are caught and consumed or sold
for gain. The fishery gets exhausted. Then it is replenished with fresh seeds
to have a new lot of fishes. It is as though some people claimed the right to
B come upon another's land, sow and reap crops repeatedly for eternity. It
would leave the owner with merely the husk of ownership while it would
really virtually vest in those who claim such an absurd right, not as permissive
user or activity but as of right, and in' the bargaining process, even have the
Barais maintain the tanks for the Phimars. As a matter of fact only a licence
to fish was granted and th·e same stands corroborated by the fact that there
C was even consideration therefor viz. the amount that was to be paid by the
fishermen. It was used for the maintenance of the tanks not for the sake of
the fishermen but for the purposes of the owners; for utilizing the tanks for
cultivating betel leaves which was and is their occupation. This was particularly
so because the body of Barais was large in fact, larger than that of Dhimars
and it was in their common interest that the tanks which were the ·sole source
D of water for cultivation for the betel leaves were maintained. For that reason
alone, fishing was allowed for a price.

On the wake of the above discussion, we do not feel it inclined to
interfere with the order of the High Court. The appeal, therefore, fails and is
E dismissed. No costs.

Re CA No.645 of 1981

Admittedly, the appellants herein do not deal in fish: whereas the
Dhimars do deal with the same!! Strict enforcement of individual rights will
create a situation not only of further stiffening of attitude of each of the
F parties towards the other but this may lead to economic instability which the
Dhimars may suffer: It is· on this score .Mr. Bobde in his usual fairness
suggested that some such_ orders should be passed so as to allow th·e parties
to co-exist and avoid economic deprivation. We place on record our
appreciation therefore and thus direct that the fishing rights be auctioned and
G the rights thereof be conferred on to the highes·t bidder.

It is further ordered that till the auction as directed above, takes place,
mesne profits as determined by this Court shall continue to be paid.

The appeal thus stand disposed of as above. No costs.
H N.J. Appeals disposed of.