M.M.Dutt, J. - (1.)This appeal hat been referred to the Special Bench by a Division 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 the suit. 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.