JUDGMENT 1. This (S. A. 598/57) is a second appeal on behalf of the defendant in a suit for rent for the years 1361-62 b. S. at a rent of Rs. 650/- per month on account of a fishery leased out to the defendant on 14th June 1952 by virtue of a registered deed of lease. The suit was decreed by the trial court and the judgment and decree were affirmed by the court of appeal below and the appeal to the court of appeal below was dismissed. Hence, the second appeal was filed on behalf of the defendant. The defense is that the plaintiffs' interest being that of an intermediary under the West Bengal Estates Acquisition act, the said interest vested in the state of West Bengal with effect from 1st Baisakh 1362 B. S. and therefore, the plaintiffs have no cause of action for the claim of rent for the year 1362 B. S. 2. According to Mr. Ghosh on behalf of the defendant, the lease granted by the plaintiffs in favour of the defendant was a lease of a fishery apart from a lease of land or subsoil. Hence, it is profit a prendre. This is, according to Mr. Ghosh, an incumbrance within the meaning of the West Bengal Estates acquisition Act and, therefore, when the interest of the plaintiffs or their landlords vested in the State of West Bengal, it vested free from this incumbrance. Therefore, the plaintiffs' right by virtue of a lease from the plaintiffs' landlord dated the 4th November 1914 has ceased to exist. The plaintiffs, therefore, cannot claim rent from 1st baisakh 1362 B. S. on which date the interest of the plaintiffs' landlord and that of the plaintiffs so vested in the state of West Bengal. There is no dispute that the plaintiffs' landlord was an intermediary being a proprietor. Mr. Ghosh next urges that supposing it is not an incumbrance, the defendant is a non-agricultural tenant within the meaning of the Estates Acquisition Act and the plaintiffs having an interest superior to that of the defendant, are intermediaries because of the definition of 'intermediary' in that act. 3. Mr. Ghosh's last contention is that the defendant is an occupancy raiyat and, therefore, necessarily the plaintiffs are intermediaries and so the plaintiffs' interest has vested. Mr. 3. Mr. Ghosh's last contention is that the defendant is an occupancy raiyat and, therefore, necessarily the plaintiffs are intermediaries and so the plaintiffs' interest has vested. Mr. Ghosh says that the plaintiffs are intermediaries either because the defendant is a non-agricultural tenant or because the defendant is an occupancy raiyat. 4. Mr. Sen on behalf of the plaintiffs says, even if it was an encumbrance created by the superior landlord of the plaintiffs and even if the interest of the superior landlord vested in the State of west Bengal with effect from 1st Baisakh 1362 B. S. free from all encumbrances and even if the rights of the plaintiffs by virtue of the lease dated the 4th November 1914 expired, the plaintiffs have got another lease from the Government and therefore the defendant who is continuing in possession under the plaintiffs and who has never surrendered possession in favour of the plaintiffs, is bound to pay rent in terms of the lease. Mr. Sen's next point is that the lease in favour of the plaintiffs dated the 4th November 1914 is of "jalkar" right without any right to sub-soil. The defendant was granted a lease of that right. If the defendant is a non-agricultural tenant on the construction of the lease by the plaintiffs to the defendant, on the same rules of construction, the lease in favour of the plaintiffs dated the 4th November 1914 by the plaintiff's landlord would also create the interest of the plaintiffs as non-agricultural tenants and the result would be that the defendant would be a non-agricultural under-tenant and not a non-agricultural tenant. Mr. Sen further says, as it is very clear in the plaintiffs' lease that the plaintiffs had no right to the sub-soil, there was no lease of land to the plaintiffs and the defendant, a lessee under the plaintiffs, could not have acquired greater rights than the plaintiffs had by virtue of the lease granted by the plaintiffs. There is no question of an occupancy raiyat. I do not think that the question that the defendant is an occupancy raiyat can be seriously urged at all. There is very specifically no lease of any land for agricultural purposes ; on the other hand, there is a specific provision that, apart from the fishery, the plaintiffs have nothing to do with the land. Hence, this contention of Mr. There is very specifically no lease of any land for agricultural purposes ; on the other hand, there is a specific provision that, apart from the fishery, the plaintiffs have nothing to do with the land. Hence, this contention of Mr. Ghosh that he is an occupancy raiyat need not be considered further and must be overruled. The courts below found in favour of the plaintiffs. The trial court found that the plaintiffs' interest in the jalkar which is a tank fishery did not vest in the State and hence decreed the suit. The Appeal court held that the plaintiffs were either non-agricultural tenants and in that case their interest did not vest in the State or they are intermediaries who have retained and thus dismissed the appeal. I am afraid, the courts below were wrong. A decision of our court supports the proposition that a fishery is an encumbrance within the meaning of the Act and if it is an encumbrance not protected by the West Bengal Estates Acquisition Act, the encumbrance would be extinguished. But there is a specific provision in the proviso to section 6 (2) that in case of a fishery "the lessee will hold the land under the Government on the same terms on which he held the land under the intermediary. But there is a dispute as to the applicability of the proviso. According to Mr. Ghosh the plaintiffs being intermediaries, the defendant would hold the property under the Government on the same terms on which he held under the plaintiffs ; whereas, it is the contention of Mr. Sen that the plaintiffs are the lessees under the admitted intermediary namely, the proprietor and therefore the plaintiffs would hold the fishery as lessees under the Government on the same terms on which the plaintiffs held the same under their superior landlord the Dalals and the defendant would be an under-lessee under the plaintiffs. 5. I have to consider the questions as to (a) whether the defendant is a non-agricultural tenant and the plaintiffs are intermediaries and (b) whether the plaintiffs are lessees or the defendant is a lessee, within the meaning of proviso to section 6 (2) of the West Bengal Estates Acquisition Act. 6. I would first refer to the kabuliyat given by the plaintiffs' predecessor in favour of the Touzi holder Dalal. The document is dated the 4th November 1914. 6. I would first refer to the kabuliyat given by the plaintiffs' predecessor in favour of the Touzi holder Dalal. The document is dated the 4th November 1914. This document is described as a kabuliyat with respect to jama of a jalkar ; it was executed by Hari Charan Mondal, predecessor of the plaintiffs who took a lease at a rent of Rs. 14 per year with respect to a jalkar described therein. The word 'jalkar' means "rent for water", the phrase "jalkar Jama" means "a tenancy for the use and occupation of water" but not necessarily of land. There are jalkar jamas where sub-soil and banks of the tank are also leased. It is very specifically stated in the document in question that the plaintiffs' predecessor hari Charan would have nothing to do with the land and his sole right would be limited to "jalkar jama" or in other words, "the lease of water". This is not a document of a lease of "land" but a lease of "water" contained in land. The lessees under that lease had the right of pisciculture with respect to water in that land. This right being "benefit arising out of a land", is immoveable property according to section 3 (21) of the Bengal General Clauses Act. Under section 3 (21) immovable property shall include "land, benefits to arise out of land" etc. Section 3 (21) of the General Clauses act defines immovable property to include land and benefits to arise out of land. Hence, section 3 (21) makes a distinction between "land" and "benefits to arise out of land". It may be for various other Acts "land" will include "benefits arising out of a land" but for the purposes of the Bengal General clauses Act we must treat them to be different. We, therefore, cannot say that "a right of fishery" apart from the lease of the subsoil to be "land" though it is "immovable property" within the meaning of the General clauses Act. This matter was considered by a Full Bench of this court in a case reported in 19 Cal. 544, between Fadu Jhala v. Gour Mohan jhala (1. We, therefore, cannot say that "a right of fishery" apart from the lease of the subsoil to be "land" though it is "immovable property" within the meaning of the General clauses Act. This matter was considered by a Full Bench of this court in a case reported in 19 Cal. 544, between Fadu Jhala v. Gour Mohan jhala (1. The question before the Full bench was whether a fishery without a right of sub-soil could be "immovable property" for the purpose of section 9 of the Specific Relief Act and it was held that it was not so for purposes of the Specific Relief Act. In (2) 20 Calcutta, 446, in the case between Ram gopal v. Nurumuddin, Norris and Macpherson, jj. came to the conclusion that a jalkar or a right of fishery being a benefit arising out of land covered by water comes within the definition of immovable property as under the General Clauses Act and therefore so under the Transfer of Property Act. Their Lordships referred to the aforesaid Full Bench case and concluded that the expression of opinion of the division Bench (Norris and Macpherson, JJ.) was justified by the expression of opinion of at least three of the learned Judges who were parties to the Full Bench decision in (1) Fadu jhala v. Gour Mohan Jhala. 7. Jalkar right or fishery right has also been considered to be immoveable property for the purposes of Art. 144 of the Limitation Act, see (3) 35 C. W. N. 1256 between Kumar Krishna v. Lokenath. This view gets support from the decision of the Judicial Committee in (4) 61 I. A. 78, Secretary of State v. Debendralal Khan. However, this matter came up before the Supreme Court and in the case of Ananda Behara v. The state of Orissa (5) 1955 (2) S. C. R., 919, where it was held that a right of fishery is profit a prendre and is "immovable property" within the meaning of section 3 (25) of the General Clauses (Central)Act and a transfer of this comes within the meaning of section 54 of the Transfer of Property Act. The Supreme Court came to the same view with reference to the Limitation Act and it was held that a right of fishery could be acquired by a particular fisherman by adverse possession but not by on uncertain body of persons as the villagers of a particular village, see (6)Braja Sundar Deb v. Moni Behara, 1951 S.C.R. 431. Therefore, there is no difficulty in coming to a conclusion that the right of fishery apart from any fight to the subsoil is immoveable property within the meaning of the General clauses Act. 8. The next question is whether there can be lease of such immoveable property. Under section 105 of the Transfer of Property Act there may be lease of immoveable property. The Transfer of Property Act does not refer to lease of 'land', it refers to lease of 'immoveable property'. Therefore, there may be a lease of fishery. This is what has been held in the decision in (2) 20 Calcutta, 446 that section 106 of the transfer of Property Act applies to such a lease. The Supreme Court in (5) 1955 (2) S. C. R., 919 has held that section 54 of the Transfer of Property act applies. Therefore, there cannot be any doubt that there may be a lease of fishery and such lease would be governed by the Transfer of Property act. If we now refer to the definition of "tank fishery" in Estates Acquisition act we shall get that "tank fishery" includes "any right of pisciculture or fishing in such reservoir or place". Vide Examination to section 8 (1) (e) of the Estates Acquisition Act. The first part of the Explanation leads us to a case of a tank fishery where there is a sub-soil right. But the last part includes "any right of pisciculture or fishing in such reservoir or place. " therefore, whether there is any right to the sub-soil or not a right of pisciculture is also covered by the definition of "tank fishery". The result, therefore, is that the intermediary, namely, the proprietor Dalai could have retained the tank fishery. But the proviso to section 6 (2) forms the bar. " therefore, whether there is any right to the sub-soil or not a right of pisciculture is also covered by the definition of "tank fishery". The result, therefore, is that the intermediary, namely, the proprietor Dalai could have retained the tank fishery. But the proviso to section 6 (2) forms the bar. That proviso for our purposes may be read as follows: "provided that if any tank fishery was held immediately before the 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. . . . . . . . " As intermediary dalai the proprietor granted a lease to the plaintiffs, the plaintiffs would be entitled to hold "tank fishery" (even without a right to sub-soil) under the same terms and conditions under proviso to section 6 (2. The result of that would be that the plaintiffs would be lessees under the Government on the same terms on which they were lessees under the intermediary, namely, Dalal. The interest of such lessees does not, in terms of the West Bengal Estates Acquisition Act, cease. Every lease is an encumbrance on the grantor's estate but a lease within the meaning of the aforesaid proviso to Sec. 6 (2) is protected from extinguishment as an encumbrance. The result, therefore, would be that the defendant would be an under-lessee under the plaintiffs and the plaintiffs would be entitled to get a decree. 9. Mr. Ghosh here says that that cannot be so. His argument is, all intermediate interests are extinguished by the act but the preamble of the Act is as follows: "an Act to provide for the State acquisition of estates, of rights of intermediaries therein and of certain rights of raiyats and under-raiyats and of the rights of certain other persons in lands comprised in estates. " 10. Hence, the Act provides for the acquisition of all rights of the intermediaries and "certain rights of raiyats and under-raiyats" and also "certain rights of other persons in lands comprised in estate. The Act is not and does not purport to be an Act by which the interest of all persons, who are not in actual possession of the property, would be extinguished. The Act is not and does not purport to be an Act by which the interest of all persons, who are not in actual possession of the property, would be extinguished. Rights of intermediaries in cases where the intermediary is not in actual possession have been extinguished, such rights of certain other persons have also been extinguished. Therefore, simply because there is an under-lease in favour of the defendant, I cannot say that the plaintiffs must be intermediaries. We must therefore now consider the argument of Mr. Ghosh as to whether the plaintiffs would be "intermediaries" within the meaning of the Act. We have referred to the definition of the word, 'intermediary' and it is urged by Mr. Ghosh in the first instance that the defendant is either in the position of a lessee or a non-agricultural tenant or an occupancy raiyat. In either of these cases the plaintiffs would be intermediaries because an 'intermediary' means 'any other intermediary above a raiyat or non-agricultural tenant'. Therefore, we have to consider whether the defendant is a raiyat or a non-agricultural tenant. As the plaintiffs never had any right to land, the plaintiffs had no rights to grant any land or any interest in the land to the defendant. Therefore, there is no question of the defendant being a raiyat. The next argument is that the defendant is a non-agricultural tenant. The definition of the word "non-agricultural tenant" is as follows: "the non-agricultural tenant means a tenant of non-agricultural land. " 11. Therefore, if a fishery without a right to sub-soil is land, the defendant may claim to be a non-agricultural tenant. I have stated that section 3 (21) of the Bengal General Clauses Act makes a distinction between "land" and "benefits arising out of land". If that distinction is kept in view, it cannot be said that "fishery" would be "land" within the meaning of the Estates Acquisition Act or the General Clauses act. Therefore, subject to any repugnancy in the context of the West Bengal Estates Acquisition Act "fishery without sub-soil" is not "land" because of the definition in section 3 (2) of the Bengal General Clauses Act. No repugnancy has been pointed out to us. Neither the plaintiffs nor the defendant are non-agricultural tenants within the meaning of the Act because the proprietor never leased out the soil to the plaintiffs. He leased out immoveable property but no "land". No repugnancy has been pointed out to us. Neither the plaintiffs nor the defendant are non-agricultural tenants within the meaning of the Act because the proprietor never leased out the soil to the plaintiffs. He leased out immoveable property but no "land". The defendant also got a lease of immoveable property not of "land". Therefore, neither the plaintiffs nor the defendant are tenants of non-agricultural land, and, therefore, none of them is non-agricultural tenant within the meaning of the West Bengal Estates Acquisition act. Here I may simply note that the meaning of the word "non-agricultural tenant" under the West Bengal Estates acquisition Act is not the same as under the Non-Agricultural Tenancy act. But that is another matter. I, therefore, come to the conclusion that the plaintiffs are not intermediaries because the defendant is neither a raiyat nor an under raiyat nor a non-agricultural tenant. 12. The next argument that has been made by Mr. Ghosh is that the interest of a lessee of a fishery is an encumbrance within the meaning of the West Bengal Estates Acquisition Act. If it is an encumbrance, then the plaintiffs' interest, which was created by the intermediary, is lost and the plaintiffs are not entitled to institute the suit. According to Mr. Ghosh whether the defendant on that construction would have any title to the property or not, is a different matter, but as the plaintiffs want a decree, the plaintiffs must prove their case, however bad the defence may be, or the plaintiffs' suit must be dismissed. There is no difficulty with regard to this latter part of the argument. But the difficulty is whether this is an encumbrance which must be deemed to have been annulled by virtue of the provisions of the Estates Acquisition Act. I have been referred to a decision of Sinha, J. between (7) Aswini Kumar Das v. The state of West Bengal, 63 C. W. N., 933. Sinha, J., came to the conclusion that right of fishery would be an encumbrance within the meaning of the Estates Acquisition Act and therefore, that vested in the State of West Bengal and his Lordship further found that for that reason the provision to section 6 (2) would not apply. The matter came to this Court in a petition under article 226 of the Constitution against an order under section 44 of the Estates acquisition Act. The matter came to this Court in a petition under article 226 of the Constitution against an order under section 44 of the Estates acquisition Act. It was not necessary for his Lordship to decide the title of the party. The question would be how a particular interest, if any, should be recorded. His Lordship was of the view that various disputed questions of fact arose before his Lordship and therefore, it was not possible for his lordship to decide all matters of controversy between the parties and come to a definite conclusion. But on the questions of law apart from the questions of fact his Lordship found no reason to interfere and the Rule was discharged and his Lordship further observed, "this may also be without prejudice to any other legal claims or right of action that the parties may have against one another. " His Lordship therefore did not propose to decide the rights of the parties but only whether the Revisional record was correct or not and that there was no sufficient material for interference before his Lordship. I have referred to the decision in (2) 20 Calcutta, 446 that there may be a lease of fishery as immovable property though not as land. I have also referred to the decision of the Supreme court in (5) Ananda Behara v. The state of Orissa, 1955 (2) S. C. R. 919, where the Supreme Court held that a right of fishery would be governed by the provisions of the Transfer of Property act. The result therefore follows that there may be a lease of fishery and such a lease would be protected because of the provisions of section 6 (2. I have no doubt that when a proprietor carves out of his estate a fishery and grants a lease of it to a person, that would be in limitation of the rights of the proprietor and, therefore, that interest would come within the meaning of the word "encumbrance" and the interest of the intermediary in the fishery would vest in the State of West Bengal free from encumbrance because of the effect of the notification under section 4. Therefore, the proprietor's right to get rent from the lessee would cease. The proprietor would not be entitled to realise any rent from the lessee. Therefore, the proprietor's right to get rent from the lessee would cease. The proprietor would not be entitled to realise any rent from the lessee. The interest that he created in his favour i. e., the right to get rent during the period of lease would be lost ; but the further question is if that is lost, whether the interest created in favour of the lessee would also be lost. Ordinarily, unless there is any other provision in the Act, I have no doubt that it would also be lost. If the intermediary had mortgaged his property to a third party, the mortgage would not be binding upon the State. If the intermediary has created a lease, then this would not be binding upon the state of West Bengal unless there is specific exception and that specific exception is in section 6 (2) proviso. Section 6 (2) proviso says that such right would not be lost. So far as the lessee is concerned, the lessee's right would be protected and he would be deemed to be a lessee under the State on the same terms and conditions as immediately before such date subject to such modification therein as the State Government may think fit to make. Therefore, because of the specific provision of section 6 (2) the general provision of section 5 would not apply and, therefore, the plaintiffs remain lessees under the Government. If the plaintiffs remain lessees, the defendant becomes an under-lessee and the defendant is, therefore, bound to pay rent in terms of the lease to the plaintiffs. 13. If we again refer to section 2 (i) we would find that the lessee of a fishery is excluded from the operation of the definition of an intermediary. We have considered the position of a proprietor and a tenure-holder but we have not considered the position of lessees and that is the last part of the definition which requires consideration and for the relevant purpose it may be read as follows: "intermediary includes a service tenure-holder and, in relation to mines and minerals, includes a lessee and a sub-lessee. " 14. Therefore, in case of a lease of minerals, the plaintiffs would be intermediaries provided the plaintiffs had a sub-lessee under them. But here again the definition excluded a lease of fishery. It only includes a lease of mines and minerals. " 14. Therefore, in case of a lease of minerals, the plaintiffs would be intermediaries provided the plaintiffs had a sub-lessee under them. But here again the definition excluded a lease of fishery. It only includes a lease of mines and minerals. I may add, it not merely excludes leases of fishery, it also excludes leases of orchards etc. as in the proviso to section 6 (2) of the Act. Therefore, the plaintiffs are not intermediaries, for the reason that the defendant is neither an agricultural raiyat nor a non-agricultural tenant and because the plaintiffs are not service tenure-holders nor the plaintiffs are lessees of mines or minerals. The result, therefore, is that the plaintiffs' interest is not affected except to the extent that they would, until there is a revision of the terms and conditions by the State Government, be deemed to be lessees under the State government on the same terms and conditions as immediately on such date. 15. The result is that the appeal i.e., s. A. 958 of 1957 is dismissed. The decision of the Courts below in second appeal No. 958/57 is affirmed and the suit is decreed. The decision of the appeal Court in second appeal No. 549 of 1961 is set aside and that of the trial Court in S.A. 549 of 1961 is restored. Second appeal No. 549 of 1961 is allowed. Both the suits are decreed. Each party will bear his costs throughout in both the matters.