P.K. Banerjee, J. - (1.) The short and possibly the only point involved in this appeal is whether the property described in the schedule to the plaint is a Tank Fishery as claimed by the plaintiff or a Riverine Fishery as urged, by the State Government and an answer to this would be decisive of the appeal. We propose to narrate only those facts which are germane for this purpose. The plaintiff -appellant Sailendra Nath Ghosh filed a suit against State of West Bengal and five others, alleging inter alia that the disputed fishery, having an area of about 68.90 acres comprising C.S. Plots 145, 250 and 444 appertaining to khatian no. 392 of Mouza Mollahati in the district of 24 Parganas is locked up by embankments and dissociated from river Ichamati. The said fishery, a natural reservoir , along with the sub -soil has been and is being held by the plaintiff and pro -forma defendant no. 5 Satish Chandra under a lease from Gour Mohan Sarkar and others in non -occupancy right at an annual rental of Rs. 525/ - and the same is being used jointly by the lesees as a Tank Fishery for the purpose of rearing, growing, catching and selling fish. The water of the 'Khal' recorded in CS. Plot no. 303 is dried up and does not remain in communication with the main stream during all seasons of the year. The State Government through the Sub -Divisional land Reforms Officer and Collector initiated proceedings under Sec. 44(2a) of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the Act) followed by notice under Sec. 10(2) directing the plaintiff to deliver up possession of the disputed fishery to the State. The plaintiff apprehends that he might be dispossessed by the State Government. Hence the suit in which the plaintiff prayed for a declaration that the disputed property is a 'Tank Fishery', that the proceedings under Sec. 44 (2A) are void and illegal and for permanent injunction restraining the State defendant from dispossessing the plaintiff from the disputed fishery.
(2.) The defendant no. 1 State of West Bengal contested the suit by filing a written statement in which it was alleged that the disputed Fishery is connected with the navigable river Ichamati by a channel in R.S. plot no. 336 and it is not a natural reservoir . The claim of the plaintiff that the disputed Fishery is a Tank Fishery has been seriously challenged and it is claimed that notice under Sec. 10(2) and the proceedings under Sec. 44(2a) of the Act are lawful and valid. The pro -forma defendant no. 5 also filed a written statement but, he did not appear at the trial.
(3.) On the aforesaid pleading parties went to the trial with 9 issues. The learned Subordinate judge, 2nd Court, Alipore by the judgment, and order dated 16.9.78 dismissed the suit with the findings that the disputed Fishery is a riverine fishery and not a Tank Fishery. On appeal, the learned Addl. Dist. Judge, 9th Court, Alipore affirmed the findings and decision of the learned Subordinate Judge and accordingly the appeal was dismissed. Feeling aggrieved, the plaintiff has come up in second appeal.;