A) ABSTRACT / HEADNOTE

This case revolves around the assertion and contestation of fishing rights in a zamindari estate in the Orissa State, involving fishermen residing in the villages of Killa Marichpur and the zamindar Raja of Aul. The principal question was whether the fishermen could claim a right to fish in the “Madhurdia” fishery, based on either adverse possession, prescription, custom, or the presumption of a lost grant. The lower courts delivered split decisions, with the trial court favoring the zamindar and the High Court partially favoring the fishermen. The Supreme Court, in a landmark interpretation, clarified that fluctuating and indeterminate bodies such as village inhabitants could not acquire rights via adverse possession or lost grants due to their lack of corporate identity or capacity to hold grants. However, it acknowledged the effect of prior proceedings under Section 145 of the Criminal Procedure Code, holding that the fishermen who were parties to such proceedings had a limited and exclusive right to fish during the Hilsa season. This case stands as a seminal pronouncement on customary rights, lost grants, and the legal personhood required to claim such rights under Indian law.

Keywords: Lost grant, fishing rights, adverse possession, prescription, zamindari, Section 145 CrPC, tenancy at will, customary rights

B) CASE DETAILS

i) Judgement Cause Title:
Raja Braja Sundar Deb v. Moni Behara and Others

ii) Case Number:
Civil Appeal No. 42 of 1948

iii) Judgement Date:
March 27, 1951

iv) Court:
Supreme Court of India

v) Quorum:
Mehar Chand Mahajan, B.K. Mukherjea, and N. Chandrasekhara Aiyar, JJ.

vi) Author:
Justice Mehar Chand Mahajan

vii) Citation:
1951 SCR 431

viii) Legal Provisions Involved:
Section 145 of the Criminal Procedure Code, 1898
Article 47 and Article 144 of the Indian Limitation Act, 1908
Section 28 of the Indian Limitation Act, 1908

ix) Judgments overruled by the Case (if any):
None explicitly overruled

x) Case is Related to which Law Subjects:
Property Law, Criminal Procedure, Customary Law, Law of Easements, Limitation Law, Tenancy Law

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The present case arose from a long-standing dispute between zamindars and fishermen in the region of Killa Marichpur in Orissa. Specifically, it focused on whether certain fishermen residing in nine villages within the zamindari had an enforceable right to fish in “Madhurdia” fishery, one of the three notable fisheries in the estate. The zamindar—Raja of Aul—initiated legal proceedings in 1936 against eighteen fishermen to establish his exclusive fishing rights, seeking an injunction and declaration to restrain the defendants from exercising any such right. The fishermen, in their defense, alleged a variety of legal bases for their fishing activities: adverse possession, custom, prescription, and tenancy based on a fixed rent paid historically.

This dispute had previously culminated in proceedings under Section 145 of the Criminal Procedure Code in 1918, where the Magistrate upheld the fishermen’s possession and directed maintenance of status quo. That order and the subsequent failure of zamindars to initiate legal proceedings within the limitation period under Article 47 became pivotal to the present litigation.

D) FACTS OF THE CASE

The plaintiff, Raja of Aul, held a majority share (7 annas, 7 pies, and 10 karants) in the Killa Marichpur zamindari estate. This zamindari included within its domain three key fisheries—Madhurdia, Marichpurdia, and Maladia—fed by the Devi river and its tributaries. The present case exclusively dealt with the Madhurdia fishery. In 1936, Raja of Aul filed Original Suit No. 62 of 1936 in the Court of the Subordinate Judge at Puri, seeking a declaration and injunction against 18 fishermen from fishing in the disputed fishery. He claimed sole ownership rights, denied any tenancy, and accused the fishermen of trespass from 1933 onwards.

Conversely, the fishermen contended that for generations they had been fishing in Madhurdia fishery, paying a fixed rent of Rs. 135-7-0 annually. They claimed that they had acquired this right by custom, adverse possession, or a lost grant, and had also been recognized through proceedings under Section 145 CrPC in 1918. During those proceedings, the Magistrate had found the fishermen to be in possession and directed their possession not be disturbed unless evicted through due process of law. The zamindars, however, took no legal action within the limitation period, allowing the order to attain finality under Article 47 and Section 28 of the Limitation Act.

The suit was decreed in favor of the zamindar by the trial court, but the High Court partially reversed the judgment, recognizing the fishermen’s right to fish during the Hilsa season (Margasir to Baisakh), based on exclusive possession and long-standing usage.

E) LEGAL ISSUES RAISED

i) Whether a fluctuating and indeterminate group such as village fishermen can acquire a right over a fishery by adverse possession, prescription, custom, or presumed lost grant.

This issue demanded scrutiny of whether the right to fish, exercised over decades by different individuals from specific villages, could legally crystallize into a permanent right. The Court had to determine whether such rights were capable of being possessed adversely, prescribed, or presumed to have originated from a lost grant when no specific or identifiable grantees or possessors were consistently shown. The issue also necessitated examining the legal character of such a fluctuating class and whether their capacity to hold a right in perpetuity met legal standards for prescription and adverse possession under the Indian Limitation Act.

ii) Whether the 1918 proceedings under Section 145 of the Criminal Procedure Code conferred a legally recognizable right to possession on the fishermen.

This issue revolved around the legal consequences of an executive magistrate’s finding under Section 145 CrPC that the fishermen were in possession of the fishery in 1918. The critical aspect here was whether the failure of the zamindars to institute civil proceedings within three years of that order, as mandated by Article 47 of the Indian Limitation Act, had the effect of rendering the order final and irrevocable as against them.

iii) Whether the High Court erred in recognizing a tenancy at will in favor of the fishermen for the Hilsa season.

The core of this issue was the legal permissibility of recognizing a tenancy at will in favor of a non-corporate, non-permanent, and unidentifiable body of people. The question also included examining whether such recognition was logically or legally consistent with the fishermen’s own claims of permanent, hereditary rights.

iv) Whether the Raja of Aul had legal title and the right to khas possession over the fishery in question.

The issue focused on the plaintiff’s claim to khas possession and the defense’s contention that such a right was extinguished by operation of limitation laws, particularly Article 47 and Section 28 of the Indian Limitation Act, due to the failure to challenge the 1918 CrPC order in time.

F) PETITIONER / APPELLANT’S ARGUMENTS

i) The counsels for Petitioner / Appellant submitted that:

The learned counsel for the Raja of Aul, led by Manohar Lal and G.P. Das, contended that the defendants were mere trespassers, without any right, title, or interest in the Madhurdia fishery. They argued that the documentary evidence produced by the defendants—including rent receipts from various zamindars and kabuliats—did not establish any consistent or continuous right. Instead, these were at best evidence of sporadic licenses or permissions granted by individual zamindars on a temporary and personal basis, revocable at will, and unconnected by time, parties, or continuity.

They further emphasized that the defendants constituted a fluctuating, non-corporate body, and as such, could not be legally presumed to be recipients of any lost grant, citing the Privy Council decision in Lakshmidhar Misra v. Rangalal AIR 1950 PC 56[1], which held that only definite, legally competent entities could receive grants, whether real or presumed. It was also submitted that even if some fishermen had fished in the past, there was no evidence of exclusive, continuous, and as-of-right usage sufficient to sustain prescription or adverse possession, particularly when the identities of users changed over generations.

As to the proceedings under Section 145 CrPC in 1918, the appellant argued that the order could not create or establish a substantive right. It merely confirmed possession, not ownership or legal right. Furthermore, it was asserted that the proceedings, though styled as Section 145, were in essence under Section 147, relating to disputes about rights of user rather than possession of immovable property, and hence Article 47 of the Limitation Act could not apply.

They also argued that the High Court erred in granting the fishermen tenancy at will, as this was never pleaded, and the doctrine of tenancy at will could not be applied to a class of fluctuating persons without any contractual or statutory basis. This effectively created a new tenancy relationship without mutual assent, thereby violating settled property law doctrines.

Lastly, they submitted that the plaintiff’s proprietary rights remained intact and undisputed, as he had been regularly acquiring greater shares in the zamindari since 1914. Therefore, he retained the right to khas possession, at least over the majority share, and no extinguishment of this right could occur merely because a limited number of fishermen had been allowed temporary possession by consent of other co-sharers.

G) RESPONDENT’S ARGUMENTS

i) The counsels for Respondent submitted that:

Appearing for the respondents, Sir Kant Mahanti and B.N. Das argued that the fishermen had acquired rights by adverse possession, long-standing use, and established custom, backed by documentary evidence from as far back as 1842. They asserted that the fishery rent of Rs. 135-7-0 had been consistently paid across generations and accepted by multiple zamindars, including some of the plaintiff’s predecessors. This showed not only recognition of the defendants’ rights, but also the existence of a continuing legal relationship.

The defense strongly relied on the 1918 Section 145 CrPC proceedings, wherein the Magistrate found the fishermen to be in actual possession, and directed that such possession must not be disturbed except through a civil suit. The zamindars took no action for over three years, and therefore, the fishermen gained the statutory benefit of finality under Article 47 and Section 28 of the Limitation Act, which extinguished the right of the zamindars to recover possession.

On the question of the defendants’ fluctuating identity, the respondents argued that the unity of interest and shared possession established their right, even though individuals came and went. They invoked the principle that collective user over a long time could lead to customary rights, even if individuals varied.

They further contended that an exclusive right to fish during the Hilsa season was effectively acknowledged by both the High Court and Magistrate. They insisted that seasonal tenancy rights could be granted, even to non-permanent classes, and were supported by evidence of continued and exclusive use during the Hilsa season (Margasir to Baisakh).

The defense rejected the idea that the change in river course altered the identity of the fishery, arguing that fish followed the river, and the fishermen followed the fish, as long as the Madhurdia fishery remained geographically connected. Therefore, the identity of the fishery had not been lost, and their right continued uninterrupted.

H) RELATED LEGAL PROVISIONS

i) Section 145 of the Criminal Procedure Code, 1898
Link to Indian Kanoon:
This provision provides for resolution of disputes relating to possession of land or water, including fisheries, when a breach of peace is apprehended. The magistrate may declare which party is in possession and protect that possession until evicted through due process.

ii) Article 47 of the Indian Limitation Act, 1908
Link to Indian Kanoon:
Prescribes a three-year limitation for suits to establish possession after a Section 145 order, failing which the right to possession gets extinguished.

iii) Section 28 of the Indian Limitation Act, 1908
Link to Indian Kanoon:
Specifies that after the expiration of the period of limitation, the right to property itself shall become extinguished.

iv) Article 144 of the Indian Limitation Act, 1908
Link to Indian Kanoon:
Prescribes limitation of 12 years for possession-based suits against persons in adverse possession, relevant to the claim that defendants had been fishing exclusively for decades.

I) JUDGEMENT

a. RATIO DECIDENDI

i) Fluctuating, indeterminate bodies cannot acquire rights by lost grant, adverse possession, or prescription

The Supreme Court held decisively that a group of persons without fixed membership or corporate identity, such as the fishermen in the present case, could not acquire a right to fish through adverse possession, prescription, or a presumed lost grant. The Court relied on the Privy Council ruling in Lakshmidhar Misra v. Rangalal, AIR 1950 PC 56[1], emphasizing that prescription and lost grant require that the beneficiaries be capable grantees who can legally hold rights. Since the fishermen were a fluctuating and indeterminate group, their claim failed this essential requirement.

The Court further cited the Calcutta High Court’s decision in Asrabulla v. Kiamatulla, AIR 1937 Cal 445[2], which clearly laid down that no lost grant could be presumed in favor of an unascertained and fluctuating group. Therefore, even if the use had been long and uninterrupted, the lack of legal personality made their claim untenable in law.

ii) Right to fish cannot arise from custom without strict proof

The defense’s argument based on customary right was also rejected. The Court held that a custom must be certain, reasonable, and not opposed to law. The alleged custom here, claimed by a large group without corporate form, lacked specificity in ownership, definitive boundaries, and consistent proof across co-sharers or time. Thus, no legally cognizable custom had been established.

iii) Section 145 CrPC proceedings resulted in extinguishment of zamindars’ right to possession under Article 47 of Limitation Act

The most significant point accepted by the Court was that the 1918 order under Section 145 of the CrPC, which declared the fishermen to be in possession of the fishery, became final and binding upon the zamindars since they failed to initiate a civil suit within three years, as prescribed by Article 47 of the Indian Limitation Act. As a result, the plaintiff’s right to khas possession was extinguished under Section 28.

This extinguishment, however, applied only to the parties to the CrPC proceedings or their direct successors. The Court held that only defendants 1, 2, 3, 5, 6, 7, 9 and 12 could claim this benefit, as they were either parties to the 1918 proceedings or their legal heirs. The rest of the defendants, lacking such continuity, had no legal right to possession and were deemed trespassers.

iv) Partial fishing rights during the Hilsa season valid only for certain defendants

The Court clarified that the exclusive right to fish during Hilsa season (Margasir to Baisakh), as acknowledged in the High Court’s decree, would apply only to the above-listed defendants. This seasonal right did not amount to a permanent tenancy nor could it be generalized to all inhabitants of the village. Instead, it was a limited possessory right, protected only to the extent established by Section 145 order and subsequent inaction of the zamindars.

b. OBITER DICTA 

i) Legal incapacity of fluctuating bodies to hold grant or title

Justice Mahajan emphasized in passing that even long usage cannot create a right unless the user is legally capable of holding such a right. This clarification distinguishes between customary use and legal right, highlighting that socio-cultural practices cannot evolve into legal rights unless they meet the requisites of law, including certainty, capacity, and prescription.

ii) Change in course of river does not defeat right of possession

While not central to the final ruling, the Court noted that a change in the river’s course does not affect the continuity of a fishery. Since the fishery in question remained a connected body of water, the seasonal right of the fishermen remained valid, notwithstanding geographical shifts. The Court observed, “The fish follow the river, and the fishermen follow the fish,” reinforcing a practical interpretation of territorial rights in relation to natural water bodies.

c. GUIDELINES 

The Court’s judgment, though case-specific, lays down several implicit legal guidelines:

• No presumption of lost grant can arise in favor of a fluctuating, unincorporated body.

• Customary rights must be specific, continuous, certain, and claimed by an ascertainable legal entity.

• An order under Section 145 CrPC, when unchallenged in civil court within three years, results in extinguishment of contrary title under Section 28 and Article 47 of the Limitation Act.

• Tenancy at will cannot be recognized in favor of an indeterminate group, unless clearly proven with consistent dealings over time.

• Exclusive seasonal rights (such as during the Hilsa season) can exist without destroying the general proprietary title, provided there is evidence of continued adverse or exclusive possession.

• When multiple co-sharers are involved, actions by a few do not bind all unless there is collective legal action or representation.

• Change in physical geography (like course of river) does not, in itself, defeat legal possession unless subject matter becomes entirely distinct.

J) CONCLUSION & COMMENTS

This judgment by the Supreme Court of India is a landmark precedent in the domain of property rights, particularly concerning usufructuary and customary interests in communal resources like fisheries. The Court struck a delicate balance between respecting long-standing user rights and maintaining the legal integrity of proprietary rights.

It marked a clear rejection of fluctuating class claims that lack legal form, thereby setting limits on what kind of customary usage can mature into a legal right. However, it also demonstrated a liberal and practical application of Section 145 CrPC and limitation law, by recognizing that inaction of the zamindars conferred possessory rights on those fishermen who had successfully defended their occupation in 1918.

While this judgment protected the zamindar’s title, it carved out a narrow and well-defined zone of protected use for certain defendants, ensuring that justice was substantive and proportionate, rather than rigid and formalistic. The ruling has become a bedrock authority in Indian jurisprudence relating to land, water, fisheries, lost grant theory, and adverse possession.

K) REFERENCES

a. Important Cases Referred

i) Lakshmidhar Misra v. Rangalal, AIR 1950 PC 56
ii) Asrabulla v. Kiamatulla, AIR 1937 Cal 445
iii) Halsbury’s Laws of England, Hailsham Edn., Vol. 15, Para 59

b. Important Statutes Referred

i) Section 145, Criminal Procedure Code, 1898
ii) Article 47, Indian Limitation Act, 1908
iii) Section 28, Indian Limitation Act, 1908
iv) Article 144, Indian Limitation Act, 1908