Case Note & Summary
The dispute arose between the Barai community, proprietors of certain tanks in Mathurasagar, and the Dhimar fishing community regarding fishing rights. The Barais owned five artificial tanks used for irrigation and fishing, with arrangements recorded in the Wajib-ul-arz since 1862. The Madhya Pradesh Abolition of Proprietary Rights Act, 1951, extinguished the rights of Malguzars but recognized certain rights for the Barais. In 1954, the Dhimars filed a suit for an injunction against the Barais to restrain them from fishing in the tanks. The trial court ruled in favor of the Dhimars, affirming their right to fish based on long uninterrupted use. However, the High Court reversed this decision, stating that the Dhimars could not claim rights as a fluctuating body of persons. The Supreme Court upheld the High Court's ruling, emphasizing that rights cannot be claimed by an indefinite group and that the doctrine of lost grant does not apply to such cases. The court also directed that fishing rights be auctioned to avoid economic instability between the communities. The appeal was dismissed with no costs.
Headnote
A) Property Law - Fishing Rights - Customary Rights and Lost Grant - The Supreme Court held that the Dhimars of Ramtek cannot claim fishing rights in the Mathurasagar tank by way of lost grant or custom, as such rights cannot be presumed in favor of an indefinite body of persons. The court emphasized that a customary right must be ancient, certain, and reasonable, and cannot be claimed by a fluctuating body of persons (C.P. Land Revenue Act, 1906, Section Not mentioned) (Paras 1-8).
Issue of Consideration
Whether the Dhimars of Ramtek can claim fishing rights in the Mathurasagar tank by way of lost grant or custom.
Final Decision
The Supreme Court dismissed the appeal, upholding the High Court's ruling that the Dhimars cannot claim fishing rights in the Mathurasagar tank by way of lost grant or custom. The court directed that fishing rights be auctioned to the highest bidder and that mesne profits continue until the auction occurs.
Law Points
- Doctrine of lost grant
- Profit-a-prendre
- Customary rights
- Statutory recognition
- Wajib-ul-arz
