LAWS(CAL)-1986-6-24

HRISHIKESH HATI Vs. BIBHUTI BHUSAN MONDAL

Decided On June 19, 1986
HRISHIKESH HATI Appellant
V/S
BIBHUTI BHUSAN MONDAL Respondents

JUDGEMENT

(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 : -

(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