Bagchi, J. -
(1.) This appeal is arising out of the judgment and decree passed in the T.S. No. 67 of 1964 of the Court of the Subordinate Judge, Murshidabad, Berhampore, District Murshidabad, by the learned Subordinate Judge who tried the said suit along with suit Nos. 08 and 69 of 1964 analogously covered by the one and the same judgment.
(2.) In T.S. No. 67 of 1964 the Plaintiffs are Ganesh Chandra Khan and Sm. Annapurna Khan while the Defendants are the State of West Bengal and the Collector of Murshidabad. In other two title suits there were different Plaintiffs but the same Defendants. All the Plaintiffs in all the suits, however, come from the same family. Ganesh, Bishnu and Kartick and their respective ways are trustees to the separated trust estate of late Jogendra Chandra 'Khan of Mankundu. All the suits relate to declaration of the title of the Plaintiffs in their respective suit properties as well as their permanent injunction. The subject -matters of all the three suits are different jalkars (right of fishery) appertaining as it were to touzis Nos. 199 and 486 of the Murshidabad Collectorate . In the instant suit No. 67 of 1964, the Plaintiffs claim jalkar right as appertaining to touzi No. 199 of the Murshidabad Gollectorate. One Gopal Sinha of Kokabazar,.P. S. Sahenagar, was the proprietor of Sayer jalkar mahal comprising of various jalkars appertaining to touzi No. 199 of the Murshidabad Collectorate. On Falgoon 21, 1268 B.S, (March 5,.1862), one Jagabandhu Roy took settlement of putni interest in respect of the said jalkar mahal of touzi No, 199. including the jalkars involved in the suit No. 67 of 1964 and the other two suits by executing a registered kabuliyat at an' annual rental of Rs. 1,041 in favour of the said Gopal Sinha. Gopal Sinha having died on Falgoon 23, 1268 B.S. (March 7, 1862) his widow executed a patta dated Sravau 22, 1269 B.S. (August 6, 1862) in favour of the said Jagabandhu Roy in confirmation of the settlement granted by her husband. On Jaistha 17, 1272 B.S. (May 29, 1865) Jagabandhu Roy executed a patta in favour of one Paresh Nath Pandey in respect of only the jalkars appertaining to touzi No. 199 including the suit jalkars as described in sch. A to the plaints at an annual rental of Rs. 1,341 thereby creating a darpulni interest in respect of the same. On Magh 24, 1279 B.S. (February 5, 1873) the said darputni right of Paresh Nath Pandey was purchased by Saraswati Devi, mother of Jogendra Chandra Khan in benam of one of their karmacharis, Dayal Chandra Sabui, with the funds belonging to and for and on behalf of her minor sons including Jogendra Chandra Khan for the benefit of the minors. On December 30, 1872, the said Saraswati Devi again purchased the putni interest of Paresh Nath Pandey and his wife Bidyabati Debya in respect of the jalkars of touzi No. 486 including the suit jalkars as described in sch. B of the plaint in Rent Execution Case No. 29 of -1872 in the Court of the Subordinate Judge of Birbhum in the benam of their another karmachari Loknath Ghosh with fund belonging to and for and on behalf of her minor sons Jogendra Chandra Khan and his brothers. Subsequently,, Dayal Chandra Sabui executed a deed of release dated January 24, 1875, corresponding to Magh 12, 1281 B.S. in favour of Saraswati Devi and her sons Jogendra Chandra Khan and others and the said Loknath Ghosh also executed a similar deed of release in favour of Saraswati Devi and her sons on Jaiztha 13, 1289 B.S. (May 26, 1882). Subsequently, on October 13, 1916, by the partition decree passed in T.S. No. 21 of 1915 in the Court of the Subordinate Judge, 24 -Parganas, between Jogendra Chandra Khan and his brothers. The jalkar of touzi No. 199 including the sch. A of jalkars in suit and putni interest of touzi No. 986 were exclusively allotted to Jogendra Chandra Khan. By a compromise decree passed in Partition Suit No. 287 of 1926, in the Court of the Subordinate Judge of Murshidabad between Jogendra Chandra Khan and his co -sharers the suit putni interest appertaining to touzi No. 486 including the sch. B jalkars in suit were also exclusively allotted to the said Jogendra Chandra Khan. Subsequently on June, 26, 1946, the said. Jogendra Chandra Khan while in possession and enjoyment of the said jalkars appertaining to both the touzis Nos. 199 and 486 created a trust in respect of all his properties including the suit jalkars by a registered indenture whereby he himself and his three grandsons (predeceased son's sons), namely Ganesh Chandra Khan, Kartick Chandra Khan and Bishnu Chandra Khan, were constituted as trustees of the said trust and each of the said grandsons and the members of their family were made beneficiaries thereof. By a decree passed in Administration Suit No. 1519 of 1956 in the Original Side of the Calcutta High Court brought by the said Ganesh Chandra Khan, Kartick Chandra Khan and Bishnu Chandra Khan after impleading the beneficiaries of the trust, the said trust created by Jogendra Chandra Khan was separated into three separate trusts, after appointing the three sets of Plaintiffs of the three suits as trustees in respect of one of such separated trust comprising all properties including the jalkars as described in schs. A and B of the plaint. It is alleged that the predecessors of the Plaintiffs and, thereafter, the Plaintiffs have been in Mas possession of the jalkars as described in schs. A and B of the plaint from before Baisakh 1, 1362 B.S. (April 15, 1955)'when the estates and rights of intermediaries therein vested in the State under the West Bengal Estates Acquisition Act, 1953. The Collector of Murshidabad served under Sec. 10, Sub -section (2) of the said Act [hereinafter referred to in this judgment as the Act) on the Plaintiffs and the other trustees of the separated trust esitate calling upon them to deliver up possession of the jalkars including the suit jalkars against -which the Plaintiffs lodged their protests inasmuch as they retained possession of the jalkars in question. Against the said notices the Plaintiffs and other trustees moved an application under Article 226 of the Constitution of India before the Hon'ble High Court at Calcutta and G.R. No. 3143 of 1955 issued restraining the Defendants by an interim order from interfering with the Plaintiffs' possession in respect of the jalkars including the suit jalhars on condition of payment of a sum of Rs. 3,000 per annum to the Government by the Plaintiffs, and other trustees which they have been paying since then. In the said Rule the contentions of the Defendant State of West Bengal were that the Plaintiffs were intermediaries, that the jalkars formed part of the river Bhagirathi, a tidal and navigable river, that the jalkars were associated' with the soil and were not tank fisheries but river fisheries and , as such, that the interest of the Plaintiffs and the other trustees vested in the State. The said Rule was, however, discharged by the Hon'ble High Court on April 12, 1957, against which the Plaintiffs and other trustees preferred an appeal bearing F.M.A. No. 12 of 1958 under Clause 15 of the Letters Patent. During the pendency of the said appeal, of course, there was an attempt for amicable settlement as per the terms submitted by the Plaintiffs to the Chief Minister of West Bengal, but the same did not materialise. However, the said F.M.A. No. 12 of 1958 was ultimately heard and their Lordships disposed of the same by their judgment dated February 20, 1954, after relegating the Plaintiffs to a regular suit with the observation that no expression of opinion, either in the appellate judgment or in the judgment appealed from, should be taken into consideration to decide the lights of the parties and by consent the injunction continued for four months. Therefore, the Plaintiffs instituted the present suit after service of notice under Sec. 80, Code of Civil Procedure, on the Defendant.. The contentions of the Plaintiffs in the three different suits are three -folds:. (i) that the Plaintiffs are not intermediaries within the provisions of the Act but are non -agricultural tenants in respect of the suit jalkars, (ii) that in the alternative assuming that the suit jalkars are part and parcel of the river Bhagirathi as contended by the State of West Bengal in the aforesaid Rule, the said river Bhagirathi being a public navigable river the question of vesting of the interests of the Plaintiffs in respect of the suit jalkars does not arise and (iii) that, in the alternative, even if the disputed jalkars are tank fisheries within the meaning of Sec. 6(e) of the Act and even assuming but not admitting that the interests of the Plaintiffs in respect of the suit jalkars are those of intermediaries the Plaintiffs are entitled to retain the suit jalkars as tank fisheries. According to the Plaintiffs, therefore, the Defendants have no right to demand to take delivery of possession of the suit jalkars which have not vested in the State in any event and, even assuming that the same have vested, the Plaintiffs are entitled to retain the suit jalkars as lessees under the State of West Bangal.
(3.) The Defendant State of West Bengal has contested all the three suits by filing written statements which are same in all of them. The State of West Bengal has not challenged the' erstwhile title of the different Plaintiff in respect of the jalkars involved in the three different suits. The defence contentions, inter alia, are that the interest of whatever nature the Plaintiffs might have in the suit fisheries, the same had vested in the State with the promulgation of the Act and since then the Plaintiffs cannot claim any right, title and interest in respect of the suit fisheries and that the jalkars in suit were not in khas possession of the Plaintiffs from before Baisakh 1362 B.S. (April -May 1955) but were let out in lease with different persons for a term commencing from a time immediately before the date of vesting up to a period after the date of vesting together with the subsisting lease even if the jalkars in suit be assumed to be the tank fisheries. The further case of the defence is that the Plaintiffs are not non -agricultural tenants in respect of the jalkars of the three different suits as alleged, but they having acquired title to the jalkars appertaining to touzis Nos. 199 and 486 which are estates, 'their rights in the suit jalkars were rights of intermediaries in the State and as such, vested in the State under Sec. 5(a)(ii) of the Act free from all encumbrances, that the Plaintiffs having held the jalkars in suits in putni and darputnj rights, they were intermediaries and all their rights and interests in respect of the suit jalkars vested in the State by Operation of the Act and that the disputed jalkars being leased out to different persons for a term commencing from before the date of vesting upto a period after the date of vesting, the Plaintiffs lot the right of retaining the suit jalkars under the proviso to Sec. 6(2) of the Act, even if the jalkars in suit be assumed to be the tank fisheries. Accordingly, to the defence, therefore, the Plaintiffs are not entitled to any relief whatsoever although the' Defendant could not take over possession of the suit jalkars on account of the injunction orders issued by the Courts.;