1. This is an appeal on behalf of the Defendant against the judgment of the Subordinate Judge in an action in which the Plaintiff claimed a declaration of his right in a jalkar and possession of the same together with mesne profits. The jalkar in question is situated in an old river-bed and it is the Defendants'' case that the old river-bed formed portion of a river in which he was granted an exclusive right of fishery and the Defendants say that they are still entitled to exercise that right in the old river bed in which the Plaintiff claims now to have a jalkar.
2. The facts are that the old river-bed in question is closed at both ends and now forms a piece of stagnant water, the Amin''s map showing that a considerable extent of cultivated ground exists between the eastern end of this old riverbed and the river into which it used to run. The Judge has gone very carefully Into the history of the river and he has shown--and there seems to be no reason for challenging his view of the facts on this head--that the old river-bed with which the river-bed now in dispute used to be connected, has in its turn ceased to be a river because one end of it is silted up, the bed has shifted further away and it is now only a back water from the main river.
3. Now, the Appellants say that notwithstanding the fact that it is found that the ends of this disputed river-bed are closed, they are entitled to go into it and take fish therein. It is conceded that they had a grant of fishery in the stream of the river Padma but they say they can enter this part because there is a small stream opening from the south into the disputed river-bed and they say that they can come up from a river called Kumar in small boats up into this old river-bed and so get access there and take fish. That is the first ground on which they contest the judgment of the Subordinate Judge in favour of the Plaintiff.
4. Now, the Kumar river is not a river which was included in the Defendants'' jalkar. On the contrary, the jalkar, which they had, was confined to the stream of the Padma, that is to say, they were granted their jalkar, in the Padmabati, the name of the goddess, which my learned brother, who is conversant with the language says, means the living stream of the Padma. The Kumar is mentioned in their grant because the landlord grantor recites that he had a jalkar in the Kumar but does not grant that jalkar to the Defendant, he only grants a jalkar in the rivers Padmabati, Bhubanessur and Ramkristapur. Now, a difficulty strikes us as being in the way of the argument which was addressed to us on behalf of the Defendant on this point because according to his statement the old river-bed is accessible only from the river Kumar which is not within his jalkar. If it be taken that he is right in saying that the persons who are the grantees of the jalkar have a right to follow the fish up all the streams connected with that jalkar, then the persons who would be entitled to come up to the old river bed and fish there would be the grantees of the jalkar in the river Kumar. However that may be, that is not a matter which is before us and so we express no opinion as to the right of the grantees of that jalkar, but the result of the argument which is addressed to us by the learned vakil for the Defendant would be that the Defendant, at any rate, would not be entitled by virtue of this small stream to come and fish in this old river-bed because that stream does not join the river which forms their jalkar but joins another river. But it is contended that under the law as laid down in Krishnendra v. Maharani Surnomoyee 21 W.R. 27 (1873) he is entitled to pursue the fish up to the time when the channels are finally closed at both ends, that is, so long as the fish can pass to and fro, he is entitled to come up the water and fish there, He is entitled to come into his own fishery that is the law as laid down; but he is not entitled to come up streams joining other people''s fisheries after the fish.
5. Then another ground on which he impugns the judgment of the learned Subordinate Judge is that he says that this stream is known as Mara Padma, i.e., the dead Padma and that his grant covered any stream which went by the name of the Padma.
6. The answer seems to us to be two-fold: first, that his grant is not of the dead Padma but of the Padma which is flowing; and secondly, that we have no evidence before us to show that there was a flowing stream called Padma over the river-bed in dispute since the date of the grant which was made under which cue Defendant claims his jalkar right.
7. Next the Defendant contends that if at any time there was connection between the river-bed in dispute and the rivers in which his jalkar lay, then he is entitled to the fish to be found in the riverbed.
8. The Judge has found on the evidence that both ends of this river-bed are closed but he finds that during the rains when the country is under water, the eastern end of this old river-bed is covered with water and there appears to be a communication with the old bed of the Bhubaneshwar but the Bhubaneshwar has left its bed; one end is silted up and it is nothing more than a back-water; and even if there is a communication of some short during the rains with the bed of the Bhubaneshwar, that would not be sufficient to justify the claim of the Defendant. The test would appear to be whether at any time the stream flowed through this old river-bed so as to make it in fact an arm of the river in which the jalkar was granted. The question was considered in the case of Jogendra Narain v. Crawford ILR 32 Cal. 1141 (1905). There it was laid down that where the Plaintiff had jalkar in a big river and claimed a right of fishery la a piece of water which was originally a part of the river and was still connected with it, though the communication might dry up in the hot weather, he was entitled to fishery in the said water. Now, the Defendant says that he comes under the ruling that is laid down in that case but in that case the test applied was--was the old river bed in effect still an arm of the river in which the Plaintiff had a general right of fishery? And it was held that it was such an arm because in the greater part of the year the stream of the river flowed down through this old channel and the channel appeared to be recognised as the arm of the river and it was held that though in dry weather connection might cease, it did not make it less an arm of the river and so did not take it out of the river in which the jalkar was granted. That test being applied to this case, It seems to us clear that the bed now in dispute cannot be considered to be an arm of the river; because in the first place, there is a considerable tract of country intervening between the river-bed and the main river and, secondly, there is no evidence that at any time there was any stream that flowed through it which could be described as the stream of the river in which the jalkar was granted, nor was it ever considered in its present form as an arm of such a river.
9. In our opinion the Defendant has failed to show that there is anything wrong in the judgment of the learned Subordinate Judge who has given a judgment in favour of the Plaintiff. The learned Subordinate Judge having found that It is not an arm of the river in which the Defendant''s jalkar is situated, followed the ruling laid down in J.J. Grey v. Anund Mohun (3). That case explicitly lays down that if a river changes its course, the old dry bed of the river becomes the property of the owner of the adjacent soil, such owner is entitled to all bheels or ponds, gulfs or damoos in which water remains but which, do not communicate with the river except in the time of flood. The right, therefore, of the present Plaintiff to the fishery seems to us to have been satisfactorily established because he has shown that it is no longer an arm of the flowing river; that river having changed its course, the arm has ceased to be an arm of the river. Under the ruling we have cited, it becomes the property of the adjacent owners who are entitled to fishery. In this case the adjacent owners are the Plaintiffs. Therefore the judgment of the learned (3) W.R. 1864, p. 108.
10. Subordinate Judge in favour of the Plaintiff stands and the appeal must be dismissed with costs.
11. The cross-objection on behalf of the Plaintiff is not pressed and is therefore dismissed. The Plaintiff applies to us to correct a clerical error in the decree. The matter ought to have been mentioned to the Subordinate Judge. The correction, however, is a small one. The Subordinate Judge used the word ''green,'' in his decree instead of the word ''blue.'' The word ''green'' must be expunged and ''blue'' put in the second line of the decree.
