M.M. Dutt, J. - (1.) This appeal is at the instance of the plaintiffs and it arises out of a suit for recovery of possession of a fishery, permanent injunction, mesne profits etc.
(2.) The case of the plaintiffs is that they are the owners of a tank fishery known as Nalbon, Fishery, measuring 191.08 acres, within P.S. Bhangore, in the District of 24-Parganas. They have retained the tank fishery by filing returns in Form 'B' as provided under the West Bengal Estates Acquisition Act, 1958 (hereinafter referred to as the Act). Sometime in the month of Magh 1356 B.S. the plaintiffs granted licence for pisciculture, that is the right to rear and catch fish in the water of the tank fishery to Dhirendra Nath Safui, the father of the defendant Sushil Kumar Safui for one year commencing from Falgoon 1, 1356 B.S. till the last day of the month of Magh 1357 B.S. on condition of payment of Rs. 18,000/- as licence fee. On the death of Dhirendra Nath Safui, the defendant was permitted to continue as the licensee in respect of the tank fishery for the said purposes till the end of Magh 1357 B.S. on some terms and conditions. Since Falgoon 1357 B.S. up to the end of Magh 1358 B.S. a similar licence was granted to the defendant on a licence fee of Rs. 20.000/-Thereafter, the defendant was granted licences for the years commencing from Falgoon 1357 B.S. till Magh 1361 B.S. on a licence fee of Rs. 22,000/-. In short, the plaintiffs' case is that every year the defendant was granted licence to rear and catch fish in the tank fishery on fresh terms. On the expiry of Magh 1361 B.S. the plaintiffs served upon, the defendant a notice dated Falgoon 3, 1361 B.S. calling upon him to vacate the tank fishery and to deliver possession of the same to the plaintiffs. The defendant filed a suit being Title Suit No. 42 of 1955 in the 7th Court of the Subordinate Judge at Alipore against some of the plaintiffs and the predeces-sor-in-interest of the plaintiffs Nos. 4 to 7, 9 and 10 for a declaration that he had a permanent tenancy right in the tank fishery and for a permanent injunction restraining the plaintiffs from evicting him from the fishery. The said Title Suit, however, was decreed by the Trial Court, but it was ultimately dismissed by this Court in Second Appeal on a technical ground that the suit was not maintainable in view of section 46 of the Act. The defendant also filed another suit being Title Suit No. 82 of 1958 of the said Court of the Subordinate Judge at Alipore, but ultimately did not proceed with the same.
(3.) It is the case of the plaintiffs that the leave and licence in respect of "Bhasa Jalkar" every year, was for one year only, commencing from Falgoon till the expiry of the month of Magh next and that, the last of such licences was for the year ending with Magh 1361 B.S. The defendant was never granted any right to the land or any lease of the land underneath the tank fishery. Alternatively, it is contended that in any event, if the leave and licence be construed as letting out of the Jalkar, the last of such lettings was for the year commencing from Falgoon 1360 B.S. till Magh 1361 B.S., and on the expiry of the month of Magh 1361 B.S. the defendant became a trespasser in respect of the tank fishery on and from Falgoon 1361 B.S. On the aforesaid allegations, the plaintiffs have prayed for the ejectment of the defendant from and recovery of possession of the fishery or Jalkar, for permanent injunction restraining the defendant from exercising any right of Jalkar and fishing in the property in suit, for mesne profits and for damages tentatively fixed at Rs. 20,000/-.;