Full Judgment
1. This is a reference by the civil Court, the Munsif of Hawali, Bareilly, in regard to a certain issue 3(a): 'is the suit under Section 9, Specific Relief Act, maintainable in respect of ferry rights to collect toll on the river?' The plaintiff is a lessee for a period of three years from the District Board, Bareilly, and plaintiff claims under Section 9, Specific Relief Act, to recover possession of the ferry from the District Board. The plaintiff alleged that during the continuance of his lease the District Board dispossessed him. On behalf of the plaintiff reference was made to Krishna v. Akilanda (1890) 13 Mad 54. That was a case where the owners of immoveable property had a claim to a right of ferry and it was held that such a claim amounted to immoveable property within the meaning of Section 9, Specific Relief Act. That section states:
If any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof notwithstanding any other title that may be set up in such suit.
2. Now 'immoveable property' for the purpose of this Act is defined in the General Clauses Act, Section 3(25) which says:
'Immoveable property' shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.
3. Now the rights of the plaintiff admittedly arise from the lease from the District Board of Bareilly. This lease is under Section 8, Northern Indian Ferries Act, (Act 17 of 1878) which states:
The tolls of any public ferry may from time to time be let by public auction for a term not exceeding five years.
4. The thing which is let under this section is not the ferry but merely the tolls. The plaintiff therefore is merely the lessee of the tolls of a ferry. Now as regards ferries a distinction must be drawn between a public ferry and a private ferry. A private ferry as held in the Madras ruling may be appurtenant to immovable property and may, as held in that ruling, be immovable property, and in. fact it would be difficult to conceive a private ferry which was not immovable property. On the other hand the lessee of a public ferry under Section 8, Northern Indian Ferries Act, is merely the lessee of the tolls of a public ferry. The public ferry remains in the possession of the public authorities and all that is let is a right to collect the tolls of that public ferry. Learned Counsel has failed to show any ruling where it has ever been held that such a right to collect tolls is in any way immovable property. We consider that the rights of the plaintiff as a lessee do not amount to immovable property in any sense and accordingly that the plaintiff has no right of suit under Section 9, Specific Relief Act. Let the reference be returned to the Court below. The costs of this Court will be received by the defendant from the plaintiff.