Charles Sargent, C.J.
1. The plaintiffs in this suit, who are some of the fishermen of the village of Naoghar, claim for the fishermen of that village the exclusive right of fishing in the Nagothna creek between high and low water, within certain limits mentioned in their plaint, and seek, under Section 9 of the Specific Relief Act, to recover possession of that right from the defendants, who, they allege, had dispossessed them within six months before the filing of the suit. The Subordinate Judge made an order that possession should be given to the plaintiffs. It has been contended that this was beyond his jurisdiction, the right of fishing not being immoveable property within the contemplation of the above section. The right claimed is the right of excluding the public from a particular part of the sea, and would constitute what is technically termed a "common of fishery," and, being a private right of fishery as distinguished from the right of the general public to fish in the sea and navigable rivers, would, as pointed out by Sir Michael Westropp in his very learned judgment in Baban Mayacha v. Nagu Shravucha I.L.R. 2 Bom., 19, come under the denomination of immoveable property.
2. It has been urged, however, that immoveable property in the above section does not include incorporeal rights, and the case of Haro Dyal Bose v. Kristo Gobind Sein 17 Calc. W.R. Civ. Rul., p. 70 was referred to in support of that contention. The Court in that case expressed an opinion that a "suit to enforce a right of way did not fall under the provisions of Section 15, Act XIV of 1859", on the ground that "ordering an obstruction to be removed was not giving possession, as is contemplated by the section." Assuming, although it is by no means clear, that the Court intended to lay down that incorporeal rights were not included in the section, we are not disposed to follow that ruling. A man is said to be in possession of a right when he can exercise it, and he recovers possession of an incorporeal right when the obstruction which interfered with its exercise is removed. The form of the order by which possession is restored, must depend upon the nature of the right and the circumstances of the case. Had it been the intention of the Legislature to exclude incorporeal rights, we might expect that it would have been done by express terms or by confining the operation of the section to "tangible immoveable property", as is done in Section 145 of the Criminal Procedure Code of 1882. Upon the whole, therefore, we think that the Subordinate Judge did not act without jurisdiction.
3. As to the objection that the suit should have been instituted in accordance with the provisions of Section 30 of the Civil Procedure Code, we think it is well-founded, as the right of fishery was claimed as one belonging to all the fishermen of the village of Naoghar; but we do not think that in a case like the present, where it is still open to the applicants to establish their right by suit, the irregularity was such as to call for the exercise of the powers of this Court, under Section 622 of the Civil Procedure Code.
4. Lastly, the Court has decided, whether rightly or wrongly, that the plaintiffs had been in exclusive possession of the fishery within the limits claimed, and in so doing, acted within its powers.
5. We must, therefore, refuse the application with costs.