- (1.) UNDER clause (e) of Section 6 (1)of the West Bengal Estates Acquisition Act, 1953, in intermediary is ordinarily entitled to retain possession of a tank fishery and if the intermediary does so, then under Section 6 (2) of the Act, he shall, with effect from the date of vesting, be deemed to hold the tank fishery directly under the State as a tenant. The proviso to Section 6 (2), however, provides that if any tank fishery was held immediately before date of vesting under a lease, such lease shall be deemed to have been given by the State Government on the same terms and conditions as immediately before such date, subject to such modifier ion therein as the State Government may think fit to make. It is not disputed by the learned counsel for the appellants that if the defendant/respondent no. 1 was holding the tank fishery in question under a lease from the vendors of the plaintiffs- appellants immediately before the date of ' vesting, then the defendant/ respondent no. 1 would now be deemed to have held the tank fishery under a lease given by the State Government and in that case the suit and the first appeal rising there form were rightly dismissed and the present second appeal would also deserve dismissal, Was the defendant respondent no. 1 a lessee in respect of the tank fishery in question, or, was he a mere holder of a right of pisciculture and of fishing in the tank ? That is the question that arises for determination in this second appeal.
(2.) THE expression "tank fishery" has been defined in the Explanation to Section 6 (l) (e) of the West Bengal Estates Acquisition Act as hereunder : - " 'tank fishery' means a reservoir or place for the storage of water, whether formed naturally or by excavation or by construction of 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 of pisciculture or fishing in such reservoir or place". This definition would at once give rise to the impression that not only a reservoir or a place for the storage of water, which is being used for pisciculture or for fishing, together with its sub-soil and banks, is a tank fishery, but any right of pisciculture or of fishing in such reservoir or place, even apart from and independent of any right to the sub-soil or banks, is also a tank fishery. The first part of the definition, quoted above having expressly defined "tank fishery" to mean a reservoir or a place for storage of water "which is being used for pisciculture or for fishing", the second part providing that "tank fishery" also "includes any right of pisciculture or fishing in such reservoir or place" would be entirely meaningless unless a bare right of pisciculture or fishing, without any right to the sub-soil or the banks of the reservoir or the place is also taken to be "tank fishery" within the meaning of the definition. This was also the view of a Division bench of this Court in Soroj Kumar v. Jatindra Nath (67 Calcutta weekly Notes 764) where it has been held (at 768v that "whether there is any right to the sub-soil or not, a right of pisciculture is also covered by the definition of 'tank fishery' ". But this view must now be taken to have been overborne by the Supreme Court in State of West Bengal v. Saradiya Thakurani (AIR 1971 SC 2097 at 2099-2100) and by a Special bench of this Court in Ahindra Nath v. Manmotho Math (AIR 1973 calcutta 168 at 170) following, as it must, the aforesaid Supreme court decision in Saradiya Thakurani (supra) It has been held by the supreme Court in Sardiya Thaksurani (supra), and it has been faithfully reiterated by he Special bench in Ahindra Nath (supra), that a mere right to rear and catch fish ire a tank can not be the subject matter of a lease within the meaning of the proviso to Section 6 (2) of the west Bengal Estates Acquisition Act, 1953. Whether the Supreme Court and the Special bench of this Court have gone that far as to rewrite the Explanation to Section 6 (i) (a)of the Act and to hold that a right of pisciculture or fishing without any right to the sub-soil or the banks would not be a "tank fishery" within the meaning of the Explanation to Section 6 (1) (e) even though, as already noted, the Explanation has expressly defined such bare right also as "tank fishery", is a different matter. But this must now be taken to have been settled that such a right, whether amounting to a "tank fishery" or not, would constitute a licence only and can not be the subject-matter of a lease. As has been reiterated by a later Division Bench of this Court in 3anendra nath v. Sushil Kumar (80 Calcutta Weekly Notes 250 at 254-255), speaking through the same learned Judge who spoke for the Special bench in Ahindra Nath (supra.), a right of pisciculture or fishing can not be the subject-matter of a lease within the meaning of the proviso to Section 6 (2) Be it noted that this Division Bench, however, has treated such a right to amount to "tank fishery" as would be apparent from the words used therein (supra, at 255) namely, "where under an intermediary, a person holds a tank fishery having only, the right to rear and catch fish, that is, the right of pisciculture or fishing". But it has nevertheless been ruled that such right, even if amounting to tank fishery, can not be the subject matter of a lease. Therefore, if defendant no. 1 had only such a bare right of pisciculture and fishing, he had only a licence, but no lease, in respect of any tank fishery and accordingly did not hold any tank fishery under a lease within the meaning of the proviso to Section 6 (2) of the Estates Acquisition act. The proviso in that case would not operate to make the defendant no. 1 to hold the tank fishery under a lease directly under the State, but under the provisions enacted in the body of Section 6 (2), the predecessor in interest of the plaintiffs-appellants would have held the same as a tenant under the State from the date of vesting and could validly transfer the same to the plaintiffs-appellants.
(3.) AS already noted, the only question for our determination is whether a bare right of pisciculture and fishing was created in favour of the defendant no. 1 or whether what was conveyed to him was a leasehold in respect of the tank fishery. Let us remind ourselves that the law as at present settled by the Supreme Court (supra) and the Special Bench of this Court (supra) is that if only a right of pisciculture or fishing is granted it would never amount to a lease and a lease of a tank fishery should comprehend the right to the sub-soil and the banks of the tank. To borrow from our vocabulary, it must not be jalkar only, it must be Sthalker too. The two rent receipts for the years 1361 and 1362 B. s. granted by the Court of Wards, being Ext. C and Ext. C (l), would show that what was tenanted to the defendant no. 1 was the plot of land wherein the tank fishery is situated, that is the tank with the soil and the hanks. A Kabuliyat, (Ext. B), was also executed by the defendant no. 1 for the purpose and on a consideration of the terms of the Kabuliyat both the courts below have concluded that the same comprehended not merely a bare right of pisciculture or fishing, but a right to the tank itself including its soil and banks. It is true that Kabuliyat being a unilateral document can not effectively operate as a lease in view of Section 107 of the Transfer of Property act, which requires a lease to be bilateral and to be executed both by the lessor and by the. lessee and, as has been pointed out by the special Bench in Ahindra Nath (supra, at 170) a unilateral document like a Kabuliyat is inoperative as a lease for a tank fishery if the lease is from year to year or for more than a year or reserving a yearly rent. But nothing would prevent us from looking at the Kabuliyat, even though void as a lease, to ascertain what was the subject-matter of the demise, its nature or extent, and whether what was sought to be conveyed was a bare right to rear and catch fish in the tank or the tank itself with its sub-soil and banks. The Kabuliyat in our view, would have been admissible for that purpose under Section 49 of the Registration Act, even if it was void for non-registration;