Full Judgment
Horwill, J.
1. Although, this petition was against an order of acquittal, it was admitted because the learned appellate Magistrate seemed to lay down a principle which might be injurious to the interests of the Thirumalai Devasthanam if that order were allowed to stand without criticism.
2. The trial Court found that the pond in question was an irrigation pond belonging to the Thirumalai Devasthanam, although some of the water that flowed from it irrigated fields that did not belong to the Devasthanam. It is argued that because the pond belonged to the Devasthanam, the fish in the pond must also belong to the Devasthanam and that any person taking fish from that pond without permission therefore committed theft. The appellate Court set aside the conviction and acquitted the accused because 'fish in a pond cannot form the subject of theft'; and it quoted as authorities The Queen v. Revu Pothadu I.L.R. (1882) Mad. 390. and Subba Reddi v. Munshoor Ali Saheb I.L.R. (1900) Mad. 81. The Queen v. Revu Pothadu I.L.R. (1882) Mad. 390. is no authority because it seems to deal with fish in a creek presumably off a river. Subba Reddi v. Munshoor Ali Saheb I.L.R. (1900) Mad. 81. is relevant; but we do not know from the decision the state of the pond. All we know is that it was an irrigation pond and that therefore from time to time water flowed from that pond to irrigate fields. The law relating to the taking fish from a pond has been made clear in this Court by three decisions, two of which Re Subbian Servai (1911) 22 M.L.J. 184 : I.L.R. 36 Mad. 472. and Nokolo Behara, In re : (1927)53MLJ759 . follow Manchu Paidigadu v. Kadimchetti Tammayya 1914 M.W.N. 168. The law laid down by these three decisions is that as long as water flows in and out of the pond, thereby enabling fish to enter and leave it, the fish are free and in a state of nature; and so no more belong to the owner of the pond than a bird that settles on a tree in a person's garden belongs to that person; but when once the water, has fallen to such a level that fish cannot leave it, then they are trapped and consequently in the possession of the owner of the pond. That being so, any person who takes fish from that pond without the owner's consent with intention to cause him loss, necessarily commits theft.
3. I do not wish to apply the above principles to the facts of this case, which are not very clear; because the Courts below did not have in mind the precise point that they had to determine. The petitioner does not press for the setting aside of the acquittal and for the conviction of the accused. It seems desirable that the parties should settle their dispute in Civil Court.
4. The petition is dismissed.