Research › Browse › Judgment

Calcutta High Court · body

1977 DIGILAW 99 (CAL)

Samarendra Nath Sadhu v. Ananta Kumar Mondal

1977-03-29

BANKIM CHANDRA RAY, NIRMAL CHANDRA MUKHERJI

body1977
JUDGMENT The judgment of the Court was as follows :–– Ray, J.: This is an appeal at the instance of the defendants against the judgment and decree passed by the Additional District Judge, 9th Court, Alipore, on February 15, 1966 reversing the decision of the Subordinate Judge, 8th Court, Alipore, passed on March 30, 1965 in Title Suit No. 49 of 1962. 2. The facts of the case in brief are that the disputed property comprised of C.S. Plot Nos. 938, 993 and 940 measuring about 2.54 acres in Khatian No. 72 in Mouza Hingalgunge within P.S. Hasnabad, District 24-Parganas was owned and possessed by the defendants 1, 2 and 3. On February 16, 1952, corresponding to 3rd Fagun, 1358 B.S. the defendants who are Raiyats Mokarari Sthitiban leased out the same to the plaintiff by an indenture of lease and put the plaintiff into possession of the said entire property which is a 'Jalkar' as a tenant under them. According to the terms of the lease the plaintiff was to pay Rs. 100/- per annum for the Jama 'Jalkar' and half of the produce of the land for use and enjoyment of the said property as a tenant. The said lease was for a period of 5 years. The plaintiff was in possession of the suit property according to the terms of the said lease at the time when the West Bengal Estates Acquisition Act came into force. The interest of the defendants 1, 2 and 3 vested in the State and the plaintiff became a tenant under the State in respect of the suit property. The defendants 1, 2 and 3 in collusion with the defendants Nos. 4 and 5 are trying to disturb the possession and the enjoyment of the suit property of the plaintiff and they managed to get the same recorded in the revisional record of rights in their names and the plaintiff was recorded as a bargadar under them. The plaintiff is not a bargadar but a tenant in respect of the suit property. So this suit has been filed praying for a declaration that the plaintiff was the tenant in respect of the suit property previously under the defendants 1, 2 and 3 and at present under the proforma defendant No.6, the State of West Bengal and for other ancillary reliefs. This was numbered as Title suit no. 49 of 1962. So this suit has been filed praying for a declaration that the plaintiff was the tenant in respect of the suit property previously under the defendants 1, 2 and 3 and at present under the proforma defendant No.6, the State of West Bengal and for other ancillary reliefs. This was numbered as Title suit no. 49 of 1962. The defendants Nos. 4 and 5 filed a joint written statement and contested the claim of the plaintiff. It has been stated that the plaintiff was given by the aforesaid deed of lease 'Vasa Jalkar' right and not a tenancy. It has also been stated that the plaintiff worked in the disputed land as a labourer of the defendants on the basis of a Krishi Mojuri agreement executed by him in favour of the defendants 1, 2 and 3. The defendants 1, 2 and 3 executed a deed of gift on September 2, 1957 in favour of the defendants Nos. 4 and 5 and delivered possession of the suit property in favour of the defendants. It has been pleaded that the plaintiff had no tenancy right in the 'Vasa Jalkar' and he was a bargadar in respect of the disputed property and his name was correctly recorded as bargadar in the finally published R.S. record of rights. So the suit is liable to be dismissed. 3. On March 30, 1965, the Subordinate Judge, 8th Court, Alipore after hearing the parties and on a consideration of the deed of lease (Ext.1) found that the plaintiff was given a 'Jalkar' right to catch fish from the said tank fishery without any right to the land or soil underneath. It has been further held that the plaintiff himself executed Krishi Mojuri agreement (Ext. A) which clearly disproves the plaintiff's case of tenancy and supported the legal presumption of the record of rights that the plaintiff was a bargadar in respect of the disputed property. It was therefore held that the plaintiff had no tenancy right in the disputed property and the suit was, as such, dismissed with costs. 4. Against the said judgment and decree the plaintiff preferred an appeal being Title Appeal No. 623 of 1965. On February 15, 1966 the Additional District Judge, 9th Court, Alipore held that admittedly the plaintiff held a 'Jalkar' right at the time when the West Bengal Estates Acquisition Act came into force. 4. Against the said judgment and decree the plaintiff preferred an appeal being Title Appeal No. 623 of 1965. On February 15, 1966 the Additional District Judge, 9th Court, Alipore held that admittedly the plaintiff held a 'Jalkar' right at the time when the West Bengal Estates Acquisition Act came into force. The provision to section 6 (2) of the West Bengal Estates Acquisition Act 1953 protects a 'Jalkar' right and as such the lessee holding such a 'Jalkar' right' on the date of vesting of the intermediary right of the lessor in the State could be deemed to have been given such lease by the State Government on the same terms and conditions as immediately before such date. The plaintiff lessee therefore become a tenant under the State. It was further held that though the krishi Mojuri agreement (Ext. A) was admittedly executed by the plaintiff in respect of the suit property yet the plaintiff could not be said to have acquired any interest other than a lessee in the lands in question. The appeal was allowed and the judgment and decree of the Trial Court were set aside. 5. It is against this judgment and decree this instant appeal has been preferred. 6. Mr. Susanta Kundu, learned Advocate for the appellant has contended that the plaintiff was given a right to catch fish in the said 'Vasa Jalkar' by the deed of lease without any right to the soil underneath and as such the plaintiff is not a lessee and the provisions of the plaintiff is not a lessee and the provisions of the Proviso to Sub-section 2 of section 6 of the West Bengal Estates Acquisition Act, 1953 cannot be called in aid to prove that he became a tenant under the State after the vesting for the intermediate interest of the lessor in the State on the presumption that he shall be deemed to hold such land as tenant under the estate on the same terms find conditions as contained in the said lease. In this connection Mr. Kundu has cited certain decisions of this court as well as of the Supreme Court. 7. Mr. Basanta Kumar Panda, learned Advocate appearing on behalf of the respondents Nos. In this connection Mr. Kundu has cited certain decisions of this court as well as of the Supreme Court. 7. Mr. Basanta Kumar Panda, learned Advocate appearing on behalf of the respondents Nos. 4 and 5 has submitted on the other hand that admittedly his client took lease of 'Jalkar' right for catching fishes in the said tank fishery dehors any right in the land underneath. This 'Vasa Jalkar' right to catch fish is a profit a pendre and is immovable property which can be leased out. He, therefore, contended that by the lease dated 16th February, 1952, the plaintiff lessee became a tenant in respect of the disputed 'Jalkar' and as such the lease having subsisted on the date of vesting the lessors' interest vested in the estate and the plaintiff has become a tenant under the estate under the provisions of the West Bengal Estates Acquisition Act. He relied upon the Bench decision of this court reported in (i) 67 C.W.N. 764 in support of his above contention. 8. Admittedly the 'Vasa Jalkar' right in respect of the disputed property was settled with the plaintiff by a deed dated 16th February 1952 and the plaintiff was in possession of the said 'Jalkar' on payment of a sum of Rs. 100/- per annum. It has also been the admitted position that the lease was for a period of 5 years and it expired in Chaitra, 1363 B.S. when the West Bengal Estates Acquisition Act, 1953 and particularly Chapter VI of the said Act which provided fur acquisition of the interest of the raiyat and under-raiyats came into operation on and from 10th April, 1956 on the issuance of a notification under section 49 of the West Bengal Estates Acquisition Act. So the interest of the defendants 1, 2 and 3 who are the lessors having Raiyati Mokarari Sthitiban interest in the suit 'Jalkar" will vest in the State if the same comes within the mischief of the proviso to sub-section 2 of section 6 of the said Act. So the interest of the defendants 1, 2 and 3 who are the lessors having Raiyati Mokarari Sthitiban interest in the suit 'Jalkar" will vest in the State if the same comes within the mischief of the proviso to sub-section 2 of section 6 of the said Act. It is necessary to set out hereunder the relevant provisions of section 6 :–– "Section 6(1) Notwithstanding anything contained in sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to sub-section (2) but subject to the other provisions of that Sub-section, be entitled to retain with effect from the date of vesting ; (c) Non-agricultural land in his khas possession including land held under him by any person, not being a tenant, by leave or license, not exceeding fifteen acres in area, and excluding any land retained under clause (a). (2) An intermediary who is entitled to retain possession of any land under sub-section (1) shall be deemed to hold such land directly under the State from the date of vesting as a tenant, subject to such terms and conditions as may be prescribed and subject to payment of such rent as may be determined under the provisions of this Act and as entered in the record-of-rights finally published under Chapter V except that no rent shall be payable for land referred to in clause (h) or (i) : provided that if any tank fishery or any land comprised in a tea-garden, orchard, mill, factory or workship 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 (subject to such modification therein as the State Government may think fit to move)". 9. The question therefore that poses for consideration is whether the deed dated 16th February, 1952 whereby the plaintiff was inducted into possession of the said fishery on payment of a sum of Rs 100/- per annum for catching fishes in the said tank fishery for a period of 5 years amounts to a lease which falls within the provisions of section 6(2) proviso of the said Act or the same is a licence and the lessors, that is, the defendants 1, 2 and 3 were entitled to retain the same in their possession. In a Bench decision of this court reported in (1) 67 C.W.N. 764, Saroj Kumar Basu v. Jarindra Nath Mondal and ors., it has been held that the right of fishery part from the right to the sub-soil is immovable property within the meaning of the General Clauses Act which may be leased out under the provisions of the Transfer of Property Act. It was also held that the right of pisciculture without any right to soil is covered by the definition of tank fishery as is given in the Estates Acquisition Act and as such the lessee who was given the right of fishing without any right to soil underneath would be deemed to be a lessee under the State Government under the provisions of section 6 (2) of the said Act and the interest of the lessee would vest in the State. In (2) A.I.R. 1971 Supreme Court page 2097, the State of West Bengal and anr. v. Shebaits of Iswar Sri Sarodia Thakurani and ors., a similar question cropped up for decision and Their Lordships of the Supreme Court held that a right to catch the was profit a pendre which was immovable property within the meaning of the Transfer of Property Act read with section 3(25) of the General Clauses Act which could be accompanied by a licence to enter upon the land, in the present case, the embankments for the purpose of going into the tank to catch fish and to keep the tank cleansed. There was therefore no legally enforceable lease of the tank in favour of the persons who was given the right to catch fish in the tank before the date of vesting so as to attract the proviso to section 6(2) of the said Act. This decision was relied upon in another Special bench decision of this Court reported in (3) AIR 1973 Cal. 168 Ahindra Nath Mukhpadhyay and anr. v. Manmatha Nath Kurmi and ors., where it has been held that a person having a right to rear and catch fish in the tank fishery on the date of vesting cannot avail of the provisions of sub-section (2) of section 6 of the said, Act as he cannot be deemed to hold any tank fishery under a lease. v. Manmatha Nath Kurmi and ors., where it has been held that a person having a right to rear and catch fish in the tank fishery on the date of vesting cannot avail of the provisions of sub-section (2) of section 6 of the said, Act as he cannot be deemed to hold any tank fishery under a lease. It has further been held that even if it is held for argument's sake that the owner of the tank fishery is an intermediary he is entitled to retain the same under section 6(1) (e) of the West Bengal Estates Acquisition Act 1953. In another Bench decision of this court reported in (4) 1976 (2) C.L.J. 45 , Gyanendra Nath Bose and ors. v. Sri Susil Kumar Sufai and anr., it has been held that where a person holds only the right of pisciculture or fishing in a tank fishery under an intermediary proviso to sub-section 2 of section 6 of the Act will not apply and the intermediary will be entitled to retain the said tank fishery in his possession under section 6(1)(e) of the Wrest Bengal Estates Acquisition Act. Thus in view of the above decisions of the Supreme Court as well as of the Special Bench decision in 67 CWN 764 is to be deemed to have been over-ruled. 10. The plaintiff, as we have held before, has been given only the 'Jalkar' right in the said tank fishery without any right to the soil underneath and this is also evident both from the deed (Ext. 1) as well as from the Krishi Mujuri agreement (Ext.A) executed by the plaintiff in favour of the defendants 1, 2 and 3. This being the position it cannot be held that the plaintiff is a lessee in respect of tile 'Jalkar', that is, tank fishery and he has become a tenant under the State according to the provisions of section 6(2) of the West Bengal Estates Acquisition Act inasmuch as the 'Jalkar' right does not constitute a lease within the meaning of the said proviso as it merely amounts to a licence. The defendants, therefore are entitled to retain the said 'Jalkar' in their khas possession in accordance with the provisions of section 6(1)(e) of the West Bengal Estates Acquisition Act, 1953. 11. The defendants, therefore are entitled to retain the said 'Jalkar' in their khas possession in accordance with the provisions of section 6(1)(e) of the West Bengal Estates Acquisition Act, 1953. 11. In the premises aforesaid the contentions put forth by the learned Advocate for the appellants having succeeded the appeal is allowed. The judgment and decree of the court of appeal below is hereby set aside and the judgment and decree or the Trial court is hereby affirmed. In the facts and circumstances of the case we do not propose to pass any order for costs. In view of the order passed in the appeal the memorandum of cross-objection is dismissed without costs. Mukherji, J. : I agree.