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PETITIONER: SABOJ KUMAR BOSE

       Vs.

RESPONDENT: KANAILAL MONDAL & ORS.

DATE OF JUDGMENT06/08/1985

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1985 AIR 1674            1985 SCR  Supl. (2) 393  1985 SCC  (3) 717        1985 SCALE  (2)244

ACT:      West Bengal  Estates Acquisition Act, 1953 sections 4,5 and 6.      Tank fisheries-Whether  vest in  State or  intermediary Tank fishery-What is-Retention of possession by intermediary -Khas possession-Whether essential.

HEADNOTE:      The   respondents’   Predecessor-in-interest   took   a permanent lease  of fishery right in a tank without the sub- soil  from  different  sets  of  proprietors  be  virtue  of registered  Kabuliyats   4th  November   1914  and  came  in possession thereof.  There-after on  14th June 1952 their in their turn  granted a  registered lease  of the said fishery right to  the appellant  for a  ter of  11  years  upto  and including the Bengali year 1369.      Under the West Bengal Estates Acquisition Act 1953, the interest of  intermediaries vested  in the State with effect from 15th April, 1955.      The respondents  filed a  suit for the recovery of rent for the years 1361 and 1362 B.S. together with interest. The claim was  resisted be  the appellant  and it  was a averred that the  interest in  the fishery  hat vested  in the State from 1362  B.S. ant 80 the contract created be the leave had been frustrated,  and that he was not liable to pay rent for 1352 B.S. ant that the last year’s rent deposited in advance was to  be credited  towards rent  for 1361  B.S. The Munsif decreed the  suit in  part holding  that the interest of the plaintiff-respondents did  not vest in the State, it being a tank fishery,  the lease  continued to  subsist and the rent for 1360  B.S. paid in advance could not be credited towards rent for  1361 B.S. This order was upheld be the Subordinate Judge as well as the High Court.      In the  appeals to  this Court, on the question whether the right ant interest of the plaintiff-respondents hat come to an  end by  virtue of  the coming  into force of the West Bengal Estates Acquisition Act, 1953, 394      Dismissing the Appeal. ^      HELD: 1.  On a  plain reading  of section 6 of the West Bengal Estates  Acquisition Act 1953 tank fisheries will not

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vest in  the State  but will be retained by an intermediary. In the  instant case, even assuming that the plaintiffs were intermediaries their right in the tank fisher did no come to an end. [396 F]      2. Khas  possession is  not a  necessary condition  for retaining the  property by  an intermediary.  In the instant case, the  interest of  the plaintiffs  did not  vest in the State either  as tenants  or as intermediaries. The evidence shows that  the plaintiffs  have the status of tenants which has been recoginsed by the government by accepting rent from them. [397 A-B]      3. The  fishery  in  dispute  is  a  tank  fishery  and satisfies the  requirements  of  the  explanation  added  to clauses (e) of sub-section (1) of section 6. [397 E]      4. The  provisions of  Chapter VI of the Act were given effect to  from Baisakh  1363 B.S. The present case involves recovery of  rent for the years 1361 and 1362 B.S. There was no difficulty  in recovering  the rent for the year 1361 and 1362 B.S.  inasmuch as every non-agricultural tenant holding any land  under an intermediary and every raiyat holding any land under  an intermediary  shall bold  the  same  directly under the  State. The  defendant got  the land under a lease and cannot  deny right  and title  of the  plaintiffs at the commencement   of the tenancy. It has not been show that the lessor’s title  has subsequently come to an end. Considering from any  aspect there is no escape from the conclusion that the plaintiffs  still retain  their rights in respect of the tank fisher  any they  are entitled  to recover the rent for the years 1361 and 1362 B.S. [397- G-H, 398 A]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal Nos. 887- 888 of 1971.      From the  Judgment ant  Order dated  11.4.1963  of  the Calcutta High  Court in  Appeals from Appellate Decrees Nos. 958/57 and 549 of 1971.      D.N. Mukharjee for the Appellant.      P.K. Chatterjee and Rathin DASS for the Respondents. 395      The Judgment of the Court was delivered by      MISRA,J.  The   present  two  consolidated  appeals  by certificate are  directed against  the judgment  of the High Court of Calcutta dated 11th April, 1963.      The dispute  between the parties centers round a Jalkar fishery right  in a tank known as Teremara JaIkar situate in village Chandiguri  in the  district  of  24-Parganas.  Hari Charan Mondal,  predecessor in  interest of  the respondents took a  permanent lease of the said fishery without the sub- soil  from  different  sets  of  proprietors  by  virtue  of registered Kabuliyats  dated 4th  November, 1914  on certain rent and case in possession thereof. Thereafter on 14th June 1952 they  in their  turn granted  a registered lease of the said fishery  right to  the appellant for a term of 11 years upto and  including the  Bengali year 1369 at an annual rent of Rs. 650.      Under the  West Bengal  Estates Acquisition  Act, 1953, hereinafter referred  to as  ’the Act’,  the interest of the intermediaries vested  in the  State  of  West  Bengal  with effect from  15th April,  1955. The respondents filed a suit for the  recovery of Rs. 1440 as rent for the years 1361 and 1362 B.S.  together with interest. The claim was resisted by the appellant  and his  defence in  the main  was  that  the interest in  the fishery  had vested  in the State from 1362

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B.S. under  the said Act and so the contract  created by the lease had  been frustrated  and he is not liable to pay rent for 1362  B.S., that  the  last  year’s  rent  deposited  in advance was to be credited towards rent for 1361 B.S. and as such no  rent was  due from  him. The learned Munsif decreed the suit  in part  with interest  at the  rate of 6-1/4% per annum holding that the interest of the plaintiff-respondents did not  vest in the State, it being a tank fishery, so that the lease  continued to  subsist and  the rent for 1369 B.S. paid in  advance could not be credited towards rent for 1361 B.S. On appeal by the defendant the Subordinate Judge upheld the judgment  and decree  of the  Munsif holding that in any case the  interest of  the plaintiffs had not come to an end and the contract as such subsisted and they were entitled to recover the  amount claimed.  Undaunted by  the failure  the defendant filed  a second  appeal before the High Court. The High Court  also confirmed  the judgment  of the Subordinate Judge and  dismissed the  appeal. The defendant has now come up to this Court, as stated earlier, by certificate. 396      The learned  counsel for  the appellant  has reiterated the same  contentions before  this court  as well.  The only pertinent question for consideration in this case is whether the right  and interest of the plaintiffs had come to an end by virtue  of the  Act. It  was contended  for the appellant that the  lease granted  by the  plaintiffs in favour of the defendant-appellant was  a lease  of a fishery right without the sub-soil.  The fishery  right, so  contends the counsel, was only  a profit-a-prendre which amounts to an encumbrance within the  meaning of  the Act and when the interest of the plaintiff-landlords vested  in the State of West Bengal free from encumbrances  the plaintiffs  right  ceased  to  exist. Alternatively it  was argued  that even  assuming  that  the fishery right  was   an encumbrance,  the defendant  being a non-agricultural tenant  within the  meaning of  the Act and the plaintiffs  having an  interest superior  to that of the defendant, they  were intermediaries  as defined  in the Act and their interest had vested in the State.      Section 4  of the  Act provides  for the vesting of the interest of  the intermediary  in the  State free  from  all encumbrances.  Section   6  of   the  Act   authorises   the intermediary to  retain certain  properties in  spite of the vesting, including  tank fisheries.  Sub-section (2)  of s.6 provided that  an intermediary  who is  entitled  to  retain possession of  any land  under sub-s.(1)  shall be deemed to hold such  land directly  under the  State from  the date of vesting as a tenant subject to certain terms. The proviso to sub-s.(2) contemplates  that if any tank fishery or any land comprised  in   a  tea-garden,  orchard,  mill,  factory  or workshop was  held immediately  before the  date of  vesting under a lease, such lease shall be deemed-to have been given by the  State Government on the same terms and conditions as immediately before  subject to  such modification therein as the State  Government may  think fit  to move.  On  a  plain reading of  s. 6  tank fisheries  will not vest in the State but will  be retained by an intermediary. Thus even assuming that the  plaintiffs were  intermediates their  right in the tank fishery did not come to an end.      It was,  however,  contended  for  the  appellant  that unless the  plaintiffs were in actual possession of the tank fishery the  same will  vest in the State and s.6 saves only such persons  who were in actual possession of the property. This contention  cannot be  accepted for  the obvious reason that s.6 itself has clearly specified in some of its clauses khas possession  and not  in  other  clauses,  for  example,

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cl.(d) of  sub-s.(1) of s.6 reads: "agricultural land in his khas possession , but no such khas possession 397 is contemplated by cl.(e) of sub-s. (1) of s.6. It only says ’tank fisheries’.  It is,  therefore, quite  clear that khas possession is  not a  necessary condition  for retaining the property by an intermediary. The kabuliyats Exts. 3 and 3(A) and rent  receipts Exts. 2 and 2(A) and the return submitted by one  of the  landlords, Ext.4, describe the plaintiffs as tenants. They  have been  so described  in  the  plaintiffs’ Ledger of  Land Reforms Department, Ext. 5, and their status has also  been recognised  as tenants  by the  Government by accepting rent from them (Exts. 2 and 2A). Thus the interest of the  plaintiffs did  not vest  in  the  State  either  as tenants or as intermediaries.      The fishery  in question  is a tank fishery as would be evident form the explanation added to cl.(e) of sub-s.(1) of s.6. It reads :           "Explanation - "tank fishery" means a reservior 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 the           banks of  such reservoir  or  place,  except  such           portion  of   the  banks  as  are  included  in  a           homestead or  in a  garden or orchard and includes           any right  or  pisciculture  or  fishing  in  such           reservoir or place." The fishery  in dispute  satisfies the  requirements of  the Explanation added  to cl.(e)  of sub-s.(1) of 5.6. Section 5 of the  Act provides  the effect  of notification under s.4. Clause (c) of sub-s.(1) of s.5 contemplates:           "(c) subject  to the  provisions of sub-section(3)           of  Section   6,  every   non-agricultural  tenant           holding any  land under an intermediary, and until           the provisions  of Chapter VI are given effect to,           every   raiyat   holding   any   land   under   an           intermediary, shall  hold the  same directly under           the  State,   as  if   the  State   had  been  the           intermediary, and on the same terms and conditions           as immediately before the date of vesting." The provisions of Chapter VI of the Act were given effect to from Baisakh  1363 B.S.  but in  the  present  case  we  are concerned with  the recovery  of rent for the years 1361 and 1362 B.S.  In this  view of  the matter  also there  was  no difficulty in recovering the rent for the year 1361 and 1362 B.S. inasmuch  as every  non-agricultural tenant holding any land under an intermediary and every 398 raiyat holding any land under an intermediary shall hold the same directly  under the  State. Considered  from any aspect there is  no escape  from the conclusion that the plaintiffs still retain their rights in respect of the tank fishery and they are entitled to recover the rent for the years 1361 and 1362 B.S.      There is  yet another aspect which cannot be lost sight of. The defendant got the land under a lease. He cannot deny right and title of the plaintiffs at the commencement of the tenancy. The  counsel for the appellant has not been able to show that  the lessor’s  title has  subsequently come  to an end.  We   have  already  held  that  the  interest  of  the plaintiffs had  not vested  in the  State and, therefore, we find no fault with the view taken by the High Court.      The appeals, therefore, must fail. They are accordingly dismissed, but  in the  circumstances of  the case we direct

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the parties to bear their own cost of this Court. A.P.J.                                   Appeals dismissed. 399