M.M. Dutt, J.
1. This appeal hat been referred to the Special Bench by aDivision Bench consisting of P. N. Mookerjee and Amiya Kumar Mookerji, JJ. under Part I, Chapter II, Rule 1, Proviso (ii) read with Chapter VII, Rule 2 of the Appellate Side Rules. The point of law which induced the learned Judges of the Division Bench to refer the appeal to the Special Bench is as follows:--
Whether, in the case of a tank fishery, (that is, a tank which is being used for pisciculture or for fishing), where the right of pisciculture or fishing is, at the date of Vesting under the West Bengal Estates Acquisition Act, held under a lease from the owner intermediary, Section 6(2) proviso Of the Act will have any application, and, if so, what will be its effect and what will be the rights of the particular intermediary and the particular lessee in respect of the said tank fishery including the right of pisciculture or fishing under the relevant provisions of this Statute, namely, Sections 5, 6(1) and 6(2) including the proviso.
2. In order to consider the said point and the respective contentions of the parties it is necessary to state the facts of the case. The disputed tank belonged to the appellants. By a Kabuliat dated July 16, 1941, the appellants granted to the respondents the right of fishing in the disputed tank for a period of nine years. The respondents were to pay the monthly sum of Rs. 100/- (?) to the appellants for the said grant or settlement of the right of fishing in the disputed tank. After the expiry of the said period of nine years the respondents held over on the same terms and conditions as provided for in the Kabuliat The appellants served the respondents with a notice directing the respondents to quit the disputed tank on the expiry of Aswin 1367 B.S. As the respondents did not comply with the terms of the notice, the appellants instituted the suit out of which this appeal arises, for recovery of khas possession of the disputed tank and for realisation of arrears of rent from 1365 to 1367 B.S.
3. The respondents contested thesuit. It was alleged that they were lessees of the disputed tank together with its banks; that the appellants were intermediaries and that their interests in the disputed tank had vested in the State under the West Bengal Estates Acquisition Act, 1953. It was further contended by the respondents that under the proviso to Section 6(2) of the Act, the respondents being the lessees of the tank fishery, became direct tenants under the State of West Bengal.
4. The trial Court came to the findings that only the fishery right independent of sub-soil was leased to the respondents and that the interests of the appellants did not vest in the State under the Act. Upon these findings, the trial Court decreed thesuit The respondents were directed to vacate the disputed tank within one month from the date of the decree, in default the appellant would get khas possession of thesame through Court. A sum of Rs. 281.25 was decreed on account of arrears of and and Rs. 10/- on account of mesne profits tentatively. It was further directed that the appellants would get mesne profits from Kartic 1367 B.S. till the delivery of possession at the rate of rent, less the amount tentatively decreed, on payment of additional court-fees.
5. Being dissatisfied with the decree of the trial Court, the respondents preferred an appeal which was heard by the learned Subordinate Judge, First Court, Hooghly. The learned Subordinate Judge also came to the finding that the respondents had no right to the sub-soil but they had only the right of fishing in the disputed tank. The learned Subordinate Judge, however, took the view that the appellants were intermediaries and their interests in the disputed tank vested in the State of West Bengal and that in view of proviso to Sub-section (2) of Section 6, the appellants were not entitled to retain possession of the tank fishery under Section 6. The learned Subordinate Judge held that the suit was not maintainable by the appellants. Upon these findings, the learned Subordinate Judge dismissed the suit and allowed the appeal of the respondents. Hence this appeal by the appellants.
6. It may be stated here, that both the Courts below proceeded on the basis that the appellants were intermediaries in respect of the disputed tank. In the C. S. record-of-rights the disputed tank has been recorded in Khatian No. 2506. The said khatian comprises only the disputed tank as appertaining to plot No. 4445. The predecessor-in-interest of the appellants have been recorded as 'Madhya Sattadhikari Chirasthayee Niskar'. This expression indicates that the predecessors-in-interest of the appellants were tenure-holders in respect of the disputed tank. The appellants also sought to make out a case in the courts below that they were intermediaries but they retained the disputed tank which is a tank fishery under Section 6 of the Act.
7. Mr. Roy Chowdhury, learned Advocate appearing on behalf of the appellants raised two contentions. Firstly, it was contended that even assuming that the appellants were intermediaries the respondents not being lessees in respect of any fishery, the proviso to Sub-section (2) of Section 6 had no manner of application and that the appellants were entitled to retain possession of the tank fishery. Secondly, it was contended by him that the appellants were non-agricultural tenants and as such they were not intermediaries within the meaning of the term 'intermediary' as defined in Section 2 of the Act and their interest in the disputed tank had not vested in the State. These two points were not taken in the courts below or before the Division Bench which made the reference, but they were taken for the first time be-fore in in the Special Bench at the time of hearing. We permitted Mr. Roy Chowdhury to take these two points for these are pure points of law which can be determined on the basis of the facts proved in the case.
8. Before we consider the aforesaid contentions of Mr. Roy Chowdhury and the point of law which has been formulated by the Division Bench referring the appeal, it is necessary to refer to the provisions of Sections 6 and 6 of the Act which are as follows:--
'6 (1). Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to Sub-section (2) but subject to the other provisions of that sub-section, be entitled to retain with effect from the date of vesting-
(e) tank fisheries; Explanation:-- 'Tank fishery' means a reservoir or place for the storage of water, whether formed naturally or by excavation or by construction of embankments, which is being used for pisciculture or for fishing, together with the sub-soil and banks of such reservoir or place, except such portions of the banks as are included in a homestead or in a garden or orchard and includes any right of pisciculture or fishing in such reservoir or place.'
In support of his first contention Mr. Roy Chowdhury relied on a recent decision of the Supreme Court in the State of West Bengal v. Sebait of Iswar Shri Saradiya Thakurani, : AIR1971SC2097 . In the case before the Supreme Court which arose out of a proceeding under Section 44 of the Act, the tank was the absolute Debattar property of the diety of Iswar Shri Saradiya Thakurani and the respondents were Shebaits of the said deity. In the District Settlement Record-of-rights the interest of the deity in the tank was described as a rent free tenure. The Revisional Record-of-rights prepared under the Act also described the tank as the absolute Debattar property of the deity. The entry also mentioned that one Kumarish Chandra Saha and Aswini Kumar Saha were the tenants of the tank paying an annual rent of Rs. 60/-. A receipt issued by the respondents also stated that the tank had been leased for the period of nine years at the rate of Rs. 60/- per year. There was, however, no registered deed or any document in respect of the said alleged lease. The appellant State relied on the said entry and the said receipt for its case that the tank was under a lease for period of nine years and the said Sahas were in possession as lessees thereof. It was contended on behalf of the appellants that the interest of the deity in the tank vested and that the Sahas should be deemed to have become direct tenants of the Government. It has been held by the Supreme Court that the interest of the Sahas was confined to fishthey would catch from the tank in consideration for which they have agreed to pay Rs. 60/- per year and in addition were under the obligation to cleanse the tank and keep it cleansed and that such an arrangement would not mean a lease within the meaning of proviso to Section 6(2), but only constitutes a licence under which they became entitled to fish yielded by and got by them from the tank. From the aforesaid Supreme Court decision it follows that a mere right to rear and catch fish in a tank cannot be the subject-matter of a lease within the meaning of the proviso to Sub-section (2) of Section 6. In the instant case also, the respondents had only the right to catch fish from the disputed tank on payment of a yearly sum of Rs. 100/-This right of fishing of the respondent could not also be the subject-matter of a lease. The respondents did not hold any tank-fishery under a lease immediately before the date of vesting within the meaning of the proviso to Sub-section (2) of Section 6.
9. Mr. Saha, learned Advocate appearing on behalf of the respondents has strenuously urged that under the explanation to Clause (e) of Section 6(1) any right of pisciculture or fishing in the reservoir of place mentioned in the explanation being a tank-fishery such a tank-fishery can be the subject-matter of a lease as clearly contemplated by Sub-section (2) of Section 6. It has been further contended by him that the words 'any tank-fishery' in the proviso to Sub-section (2) includes also the right of pisciculture or fishing and accordingly it cannot be said that such a right which is a tank-fishery under the explanation cannot be leased. Mr. Saha submits that in case it is held that the right of pisciculture of fishing which is a tank fishery under the explanation to Clause (e) cannot be leased, that would mean that such a right would not be a tank-fishery which would be against the clear provisions of the explanation to Clause (e). Lastly, Mr. Saha submits that the aforesaid Supreme Court decision will not apply to the instant case for, in the case before the Supreme Court there was no registered lease, whereas in the instant case the tank-fishery was leased by a registered Kabuliat.
10. So far as the first part of the contentions of Mr. Saha is concerned we are unable to accept the same in view of the clear decision of the Supreme Court that a mere right to rear and catch fish in a tank cannot be leased, for, such a right constitutes a licence. We are also unable to accept the distinction sought to be made by Mr. Saha of the aforesaid Supreme Court decision. In the instant case also, it cannot be said that there is a lease. The Kabuliat is a unilateral document and it is inoperative as a lease under Section 107 of the Transfer of Property Act. This contention of Mr. Saha also fails. The respondents are, therefore, not entitled to avail of the provisions of Sub-section (2) of Section 6 as they did not hold any tank-fishery under a lease. Even assuming that the appellants are intermediaries, the appellants are entitled to retain possession of the tank-fishery under Section 6(1)(e).
11. In view of our finding on the first point of Mr. Roy Chowdhury, it is not necessary for us to consider his contention on the second point that the appellants were non-agricultural tenants and not intermediaries and that the interests of the appellants did not vest in the State under the Act.
12. The point of law which has been formulated by the Division Bench making the reference, proceeds on the baiis that the right of pisciculture or fishing can be leased, but in view of the aforesaid Supreme Court decision such a right cannot be leased. Therefore, in all such cases, persons having merely a right of fishing or pisciculture in the reservoir or place as mentioned in the explanation to Section 6(1)(e), cannot claim any benefit under the proviso for the reason as given by the Supreme Court, that such a right only constitutes a licence and cannot be leased.
13. For the reasons aforesaid, the judgment and decree of the lower appellate Court are set aside and those of the trial Court restored and the appeal is allowed. But in view of the facts and circumstances of the case we do not make any order as to costs in this appeal.
14. Mr. Saha prays for stay of operation of this judgment and decree for a period of two months in order to get the certified copies of the same. The prayer is allowed. Let there be an order of stay of operation of the judgment and decree for a period of two months from this date.
Arun K. Mukherjea, J.
15. I agree.
Sabyasachi Mukharji, J.
16. I agree.