SAROJ KUMAR BOSEversusKANAILAL MONDAL & ORS.

                                                             393


                         SAROJ KllllAR BOSE                          A
                                v.
                    KANAILAL lllNDAL & ORS.

                          AUGUST 6, 1985

             [E.S. VENKATARAMIAH AND R.B. MISRA JJ ·]                B

     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     C
- Khas possession - Whether essential.

      The respondents' Ptedecessor-in-interest took a permanent
lease of fishery , right in a tank without the sub-soil from
different sets of proprietors by virtue of registered Xabuliyats
dated 4th November 1914 and came in possession thereof. There-       D
after on 14th June 1952 they in their turn granted a regiatered
lease of the said fishery right to the appellant for a tem of 11
years up to and including the Bengali year 1369.

      Under the West Bengal Eststes Acquisition Act, 1953, the
interest of intermediaries vested in the State with effect from
15th April, 1955.                                                    E

      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 by the appellant and it was averred that the
interest in the fishery had vested in the State from 1362 B.s.
and so the contract created by the,lease had been frustrated, and    F
that he was not liable to pay rent for 1362 11.s. and 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 cuntiwed to
subsist and the rent for 1360 B.S. paid in advance could not be      G
credited towards rent for 1361 B.S. This order was upheld by the
Subordinate Judge as well as the High Court.

      In the appeals to this Court, on the question whether the
right and interest of the plaintiff-respondents had come to an
end by virtue of the coming into force of the West Bengal Estates   , H
Acquisition Act, 1953,
        394                SUPREME COURT REPORTS         [1985] SUPP;2 s.c.R.
              Dilllisaing the Appeal,
A
              llilLlh 1. On a plaia reading of eectiw 6 of the V.t flnaal
        Estates .Acqu.l.sition Act 1953 ta..,Jr. fisheriea will not ..ut in the
        State but v1ll be retaimd by an intermeclimy, In the illstat
        case, even aalhlaing that the plaintiff• ere inte~NI their
        right in the tank fishery ciid not com to an ena. [396 J.1)
B
              2. Xhaa poueaaion ia aot a l!eCe&B&ry couditi<11t for retllia-
        ing the property by an intemecliary. In the instant case, the
        intereat of the plaintiffs did not vest in the State either u
        teunte or aa interaediarl.ea. The ev.tdence ·~ that the pWn-
        tiffs have the status of t81l&tlte 'llbich baa baa recogniaed by the
        Goveraent by accepting rent frm tbea. [397 A-I)
c
             3. The fisbery in diapote is a taalt fishery and satiafiu
        the reqniremnta of the ezplanation added to clanH (e) of
        nb-aection (1) of section 6. [397 E]

               4. !be provieiona of Chapter VI of tbQ kt were gf.wn
        effect to from Bsisalth 1363 11.s. ?be . preaeat cue imolvea
D       recovery of rent for the yeara 1361 and 1362 11.a. There vu no
        difficnlty in tecOVerina the rent for the year 1361 and 1362 a.s.
        iM-h u ftetJ non-agricultural tenant holding any land lllldar
        an intermadi&ry ud uery raiy11t holding any land Wider an inter-
        .ecliary aball hold the 1M1111e directly under the State. The defen-
        dant got the lad ander a ].Que and camiot deny right and title
E       of the plaintiffs at the Ctl!!IM!!caent of the l:ellaDcy• It baa not
        beea •1-n that the laa•or 1 s title bu aubeeqaently CClall! to an
        end. Couideriog fro.a any upect there is no escape frm the
        conclnaion that the plaintiffs still retain their rights in
         respect of the tank fishery and they are entitled to reco-.er the
         rent for the years 1361 end 1362 11.s. [397 G-H, 398 A)
F
              CIVIL APPELLATE JURISDICTION : Civil Appeals Nos.        887-888
        of 1971.

              From the Judgment and Order dated 11.4.1963 of the Calcutta
        High Court in Appeals from Appellate Decrees Nos. 958/57 and 549
G       of 1961.

               D.N. Mukhar jee for the Appellant.

               P:K. Chatterjee and Rathin Dass for the Respondents.

    R
            S.K.BOSE v. KANAILAL IKJNDAL [MISRA, J.]         395


      The Judgment of the Court was delivered by
                                                                    A
      MISRA,J.    The present two consolidated appeals by
certificate are directed against the judgment of the High Court
of Calcutta dated 11th April, 1963.

      Tl\e dispute between the parties centres round a Jalkar
                                                                    B
fishery right in a tank known as Teremara Jalkar situate in
village Chandiguri in the district Of 24-Parganas. llari Charan
Monda!, 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 came in possession
thereof. Thereafter on 14th June 1952 they in their turn granted    c
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 Ac.t, 1953, here-
inafter referred to as 'the Ac.t', the interest of the Inter-       D
mediaries 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 l'ent 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 B.S. under the said Ac.t and so the
contract created by the lease had been frustrated and he is not     E
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 waa 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   F
continued to subsist and the rent for 1369 B.S. paid in advance
c~uld 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 plain-
tiffs ~d not come to an end and the contract as such subsisted
and they were entitled to recover the amount claimed. Undaunted     G
by the failure the defendant filed a second appeal before the
High Court. The High Court also collfirmed the judgment of the
Subordinate Judge and dismissed the appeal. The defendant has now
come up to this Court, as stated earlier, by certificate.
                                                                    H
    396               SUPREME COURT REPORTS      [1985] SUPP.2 s.c.R.


A         Tue 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
B   lease of a fishery right without the sub-soil. The fishery
    right, so contends the counsel, was only a profit-a-prendre which
    aJOOunts 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 plaintiff's
    right ceased to exist. Alternstively it was argued that even
    assuming that the fishery right was not an encumbrance, the
c   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     encum-
D   brances, Section 6 of the Act authorises the intermediary to
    tetain 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 possesaion of any land under sub-s.(l)
    shall be deemed to hold such land directly under the State from
    the date of vesting as a tenant subject to certain terms. The
E
    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
    Govermnent on the same terms and conditions as immediately before
    subject to such modification therein as the State Govermnent 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 intermdiaties 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 actusl possession of the tank fishery the
G
    same will vest in the State and s .6 saves only such persons who
    were in actual possession of the property. Th.is 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, cl.(d) of sub-s.(l) of s.6 reads: "agricul-
H
    tural land in his khas possession", but no such khas possession
             S.K. BOSE v. KANAILAL MONDAL (MISRA, J.]         397


is contemplated by cl.(e) of sub-s. (1) of s.6. It only says         A
'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     B
Department, Ext. S, 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         c
evident form the explanation added to cl.(e) .of sub-s.(l) 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     D
           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."
                                                                     E
The fishery in dispute satisfies the requirements of the Expla-
nation added to cl.(e) of sub-s.(l) of s.6. Section 5 of the Act
provides the effect of notification under s.4. Clause (c) of
sub-s.(l) of s.5 contemplates:

           "(c) subject to the provisions of sub-o-section(3) of     F '
           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          G
           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    H
rent for the year 1361 and 13,62 B.S. inasmuch as every non-agri-
cultural tenant holding any land under an intermediary and every
     398               SUPREME COURT REPORTS         l1985j SUPP.2 $.C.R.

                                                                  '
A    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.

li        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
C    High Court. ·

          The appeals, therefore, must fail. They are accordingly
     dismissed, but in the circumstances of the case we direct the
     parties to bear their own cost of this Court.
D




     A.P.J.                                            Appeals dismissed.