B. PANIGRAHI, J. ( 1 ) THIS appeal is directed against the confirming Judgment and Decree passed by the 4th Court of the Additional District Judge, Midnapore in Title Appeal No. 258/80 dated 22nd December, 1981 dismissing the plaintiffs appeal. ( 2 ) THE facts leading to this appeal are summarily stated :-THAT the appellant who was the plaintiff in T. S. 34/83 in the S. D. Court of Munsif at Jhargram filed a suit for declaration of title and permanent injunction. The suit property known as 'nutanpukar' appertaining to Mouzsa, Ramgarh in Plot Nos. 78 and 79 originally belonged to the ancestors of the defendants 1 to 10. It is further the case of the plaintiff that the ancestors of the landlords/defendants had agreed to lease out the suit tank with the surrounding bank following which the plaintiff executed a Kobuliyat in favour of the landlords who had accepted the same and passed receipt in lieu of rent. Thus, the plaintiff became a tenant in respect of the disputed Tank with its bank under the defendant landlords. During the subsistence of tenancy, The West Bengal Estates Acquisition Act, 1953 came into force and pursuant to the said provision the right, title and interest whatever the defendant landlords had, prior to the vesting, became vested in the State Government. ( 3 ) THREE sets of written statements were flied by the contesting defendants but the stand taken by them is almost identical. It is claimed by the defendants that plot nos. 78 and 79 are not agricultural lands. The suit land is a tank which was given to the plaintiff at a yearly Jama of Rs. 200/ -. It was further agreed between them that the plaintiff shall pay 'minkar' for a term of 8 (eight) years ending with 1367 B. S. The interest of the defendants did not vest in the State Government. The plaintiff cannot claim any right, title and interest over the suit plot under the State of West Bengal. Defendants Nos. 17 to 23 had, however, submitted in their written statements that they purchased 2 annas shares out of four annas shares of Bankim Behari Das Roy from the suit property and defendant no. 14 purchased the same interest over the suit land. Therefore, the suit at the instance of the plaintiff is said to be untenable. Defendants Nos. 17 to 23 had, however, submitted in their written statements that they purchased 2 annas shares out of four annas shares of Bankim Behari Das Roy from the suit property and defendant no. 14 purchased the same interest over the suit land. Therefore, the suit at the instance of the plaintiff is said to be untenable. ( 4 ) THE Trial Court held in its judgment that no interest can accrue on the suit land nor the 'kobuliyat' can confer any right on the appellant. It is further held that the plaintiff was a mere licence and after the expiry of the licence period he could not claim any interest over the suit land. The appellate court has also affirmed the finding of the Trial Court and dismissed the appeal filed by the appellant. ( 5 ) MR. Sahu, the learned counsel appearing for the appellants, has however, strongly urged that the deed executed by the plaintiff (Ext. 1) shows an undertaking to cultivate the bank of the tank. Therefore, without least hesitation, it can be held to be an agricultural tenancy. He further argued that by virtue of the provision of the West Bengal Estates Acquisition Act. 1953 the rights of the landlords which they had prior to vesting became extinguished. The appellant should hold the tank with the same terms and conditions under the State Government as he was holding the same under the landlord prior to vesting. Therefore, the defendant/landlords had no subsisting right to create sale deed in favour of the other defendants which is null and void, inasmuch as the appellant held the land as royoti at the time of vesting. ( 6 ) MR. Sikdar, the learned counsel appearing for the contested appellant while repelling the contention of the appellant has, however, argued that the 'kobuliyat' on which the appellant places utmost reliance is an unilateral document and thus, it does not confer any right on him. Secondly, it has been argued that the appellant cannot claim to be a lessee under the landlord/defendants but at the best the document can be said to be a deed of licence. Since it was a non-agricultural land, i. e. a tank, no occupancy right can be claimed by the appellant under the document, viz, the 'kobuliyat' under which fishing right was only given but no right on the subsoil was conferred by the defendant/landlords. Since it was a non-agricultural land, i. e. a tank, no occupancy right can be claimed by the appellant under the document, viz, the 'kobuliyat' under which fishing right was only given but no right on the subsoil was conferred by the defendant/landlords. Therefore, the appellant cannot claim any interest under the provisions of West Bengal Estates Acquisition Act, 1953. It is further argued that such land did not vest in the State Government and even assuming the same has vested, the defendant/landlords have acquired indefeasible right over the suit tank. ( 7 ) BEFORE entering into rival contention of the parties, it is necessary to consider whether the 'kobuliyat' executed by the appellant in favour of the defendant/landlords would create any right thereunder. While gathering the intension of the parties to the document, the whole terms embodied in it has to be carefully considered. Indisputably the suit land is described as 'nutunpukur' along with its embankments measuring about 6 acres 25 dicimals in Plot Nos. 78 and 79 within Mouza Ramgar. In the schedule also, it has described to be a tank and the nature of the right indicated in the 'kobuliyat' is to catch fish on payment of regular rents. In the document the nature of rent has been described as 'minkar' that would go to show that the rent was leviable for catching fish. It is undoubtedly true that while rearing fish the plantiff was permitted to watch the same and raise sundry vegetables but that does not detract the nature of land from the category of tank. It is further indicated that after expiry of the period the plaintiff shall be evicted without any notice. All these terms narrated to document would indubitably establish that the nature of the land was a tank and the right conferred upon the plaintiff was that of a licensee. Mere raising sundry vegetables on the banks of the tank does not change the tenure of the land from tank into royati. No right has been conferred on the plaintiff on the subsoil of the suit tank. All these incidents will unmistakably establish that a deed of licence was executed by the plaintiff In favour of the landlord/defendants. Mere raising sundry vegetables on the banks of the tank does not change the tenure of the land from tank into royati. No right has been conferred on the plaintiff on the subsoil of the suit tank. All these incidents will unmistakably establish that a deed of licence was executed by the plaintiff In favour of the landlord/defendants. ( 8 ) AN innate question has been raised by the learned counsel appearing for the appellant that since the landlord/defendants had accepted rent from the plaintiff, the document executed by him should be construed as a lease deed and not a deed of leave and licence. I am unable to accept the contention of Mr. Sahu, inasmuch as it has been already indicated above that the suit land is a tank and a 'kobuliyat' purported to have been executed by the plaintiff was a deed of leave and licence. It is indicated in the document that the plaintiff shall pay 'minker' for catching fish. Therefore, the rent even if accepted by the landlord/defendants would be towards the licence fee. ( 9 ) IN a deed of lease an interest in the immovable property is created whereas in case of leave and licence only right of occupation is conferred without any interest on the land. The plaintiff had agreed to quit the land after the expiry of the period without notice. In the above situation, I found there is a formidable point against the plaintiff that he was a mere licensee and not a lessee. ( 10 ) GREAT stress was laid on the basis of a case reported in AIR 1931 Calcutta, page 135 (Surendra Kumar Sen Chaudhury and Ors. v. Chandratara Nath and Ors. ). The appellant has urged streneously that by execution of a 'kobuliyat' and subsequently on acceptance of rent by the landlord a right of a lessee shall accrue in favour of the executant. A piquant situation arises in the case as to how far the aforesaid decision shall cover the present case. v. Chandratara Nath and Ors. ). The appellant has urged streneously that by execution of a 'kobuliyat' and subsequently on acceptance of rent by the landlord a right of a lessee shall accrue in favour of the executant. A piquant situation arises in the case as to how far the aforesaid decision shall cover the present case. In the aforementioned decision it is held :-"as examination of the authorities on the subject under the old Rent Law Act 10 of 1859 (B. C.) shows that where the lease is merely of a tank with so much of its banks as is necessary for its use it cannot be regarded as an agricultural lease and no right of occupancy can be acquired in the tank. "the true text as to whether the lease for agricultural purpose or not is to see whether the primary object of the lease was for the tank or lease of the surrounding land for the purposes of agriculture with tank within it. In this case, the object of the 'kobuliyat' was to confer a fishing right on the plaintiff landlord/defendants had never agreed to part with their right on the sub-soil of the suit tank. The plaintiff was merely permitted to raise vegetables and to upkeep the tank properly and thereby the surrounding of the tank would be kept cleansed. From this, it cannot be argued that the bank of tank was given for agricultural purposes. In this regard, in the decision reported in AIR 1973 Calcutta 168 in the case of Ahindra Nath Mukhopadhyaya and Ors. v. Manmatha Nath Kurmi and Ors. , the Special Bench was called upon to decide whether, in the case of a tank fishery, where the right of pisciculture or fishing is created at the date of vesting under the West Bengal Estates Acquisition Act, held under a lease from the owner intermediary, section 6 (2) proviso of the Act will have any application, and if so, what will be its effect and what will be the rights of the particular intermediary and the particular lessee in respect of the said tank, fishery including the right of pisciculture or fishing under the relevant provisions of this Statute, namely, sections 5, 6 (1) and 6 (2) including the proviso. The provisions of section 6 (1) (e) of West Bengal Estates Acquisition Act, 1953 is extracted hereunder :-"6 (1 ). The provisions of section 6 (1) (e) of West Bengal Estates Acquisition Act, 1953 is extracted hereunder :-"6 (1 ). Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to subsection (2) but subject to the other provisions of that sub-section, be entitled to retain with effect from the date of vesting: (e) tank fisheries : explanation :- "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 subsoil and banks of such reservoir or place, except such portions of the banks as are included in a homestead or in a garden or orchard and included any right of pisciculture or fishing in such reservoir or place. "the Special Court arrived at a categorical finding that mere right to rear and catch fish in a tank would only be construed as a licence. Moreover, it has been further held that the 'kobuliyat' is an unilateral document and it is inoperative as a lease under section 107 of the T. P. Act. Thus, a party claiming under the 'kobuliyat' cannot avail the benefit of the provisions of sub-section 2 of section 6 as he holds the tank fishery only under a deed of leave and licence. In view of this position I must hold that the plaintiff has no right over the suit tank who was merely a licensee. ( 11 ) AN inexorable plea has been advanced by the appellant that in the revisional record of rights the suit land has been described under the 'royati Khata', this the land in dispute should be held as royati land. It is nobody's case that the suit land is a Royati land. It is descried in the RCR as pond and bank of the pond. In that view of the matter mere inclusion under the category of Royati Khata does not alter the nature and character of the tank into Royati tenure. ( 12 ) THE Supreme Court in the case of Stare of West Bengal and Ors. v. Shebait of Iswar Shri Saradiya Thankurani and Ors. In that view of the matter mere inclusion under the category of Royati Khata does not alter the nature and character of the tank into Royati tenure. ( 12 ) THE Supreme Court in the case of Stare of West Bengal and Ors. v. Shebait of Iswar Shri Saradiya Thankurani and Ors. reported in AIR 1971 SC 2097 held:"where a tank fishery is the absolute properly of the deity but same person is allowed to catch fish therefrom on payment of a fixed fee and in addition he is under an obligation to cleanse the tank, the arrangement does not constitute a lease within the meaning of the proviso but only a licence. The deity alone in such a case becomes the direct tenant under section 6 (2 ). " ( 13 ) IT is submitted by the appellant that the intermediary, namely, the landlord defendants had no right to transfer the land in favour of the other defendants. It is true that from the scheme of Act it would appear that the intermediary or the lessor gets no absolute right in the tank fisheries on which he had already been divested of his right except to remain in Khas possession and to enjoy the usufruct thereof i. e. for pisciculture or fishing without any interest or sub-soil rights and subject to such terms and conditions and subject to payment of rent as prescribed under the Act, but not as owner thereof. In view of such position, the intermediary i. e. landlord defendants had no vested right to transfer it in favour of the other defendants as they were only entitled to possession of tank fisheries but not to the sub-soil. My above findings is buttressed from a decision reported in AIR 1993 SC page 2103 which is held as follows :-"the effect of the operation of Sections 4 and 5 is divesting the intermediaries of his pre-existing right, title and interest in the estate except those which were exempted from the operation of the Act. One of the exceptions is retention of the possession of the lands covered by section 6 under section 6 (1) (e), tank fisheries is one such. Sub-sec. (2) amplifies its effect. Sub-sec (2) transposes the pre-existing possessory right of the retained lands of an intermediary of tank fisheries into holder of it as a tenant without any interest therein. One of the exceptions is retention of the possession of the lands covered by section 6 under section 6 (1) (e), tank fisheries is one such. Sub-sec. (2) amplifies its effect. Sub-sec (2) transposes the pre-existing possessory right of the retained lands of an intermediary of tank fisheries into holder of it as a tenant without any interest therein. By fiction of law the intermediary was transposed as X "holder" of the possession directly under the State as tenant, subject to such terms and conditions as may be specified and subject to payment of rent as may be determined from time to time. Therefore, what was saved by non obstante clause of sections 6 (1) and (2) is the right of retention of the physical (khas) possession of the tank fisheries. Section 6 (2) saved the retention of possession of tank fisheries and not divesting the state of the vested rights etc. in the estate. In the case of an intermediary, he has been given only right to retain possession under section 6 of the homestead lands or land comprised in or appertaining buildings and structures, 25 acres of agricultural lands in khas possession, factories, workshops, tank fisheries or other enumerated properties etc. without any interest therein and subject to the terms and conditions that may be imposed and payment of rent existing or revised as per the provisions relevant thereto. From the scheme of the Act it would appear that the intermediary or the lessee gets no absolute right in the tank fisheries which were already divested but to remain in khas possession and to enjoy the unfruct thereof i. e. for pisciculture or fishing without any interest or sub-soil rights and subject to such terms and conditions and subject to payment of rent as prescribed under the Act, but not as owner thereof. Hence direction by High Court that intermediary in possession was entitled to dispose of land is contrary to and in negation of the scheme of the Act and Rules. " ( 14 ) IN the above conspectus of the case and on a serious cogitation of the facts and circumstances, I hold that the appeal is bereft of merit and is accordingly dismissed. But in the circumstances without costs. Appeal dismissed.