ASWINI KUMAR DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE facts in this case are shortly as follows: The Midnapore Zaminnary Co. Ltd. , opposite party No. 4, herein, held the "jalkar" known as "thuti Gangapath Jalkar" appertaining to Touzi No. 1132 of the Birbhum Collectorate and Touzi No. 2 of the Murshidabad Collectorate, as part of their patni interest. The said Company settled with Kobadali Biswas and others a moiety of the said "jalkar" in permanent tenancy. As regards the other moiety, the Company was in Khas possession until 9th March, 1953. On the 10th March, 1953 by an Indenture of Lease, the Company settled -/3/-annas share of the said jalkar out of the aforesaid -/8/- annas share, in permanent tenancy right with the petitioners Nos. 1 and 2, Aswini Kumar Das and Nani Gopal Das. Similarly, the petitioner No. 3, Balaram Chandra Das and the petitioner No. 4, Kasem Mondal were granted -[2[6[- pies share each out of the said -/8/- annas share in the said jalkar. Thus, the petitioners Nos. 1, 2, 3 and 4 acquired -/8/-annas share of the said jalkar from the said Company. Copies of the said leases are annexed to the petition and marked with the letters "a", "b" and "c". It is stated in the petition that the petitioner No. 3 is now holding as a lessee under Kobadali Biswas and others, of their -/8/- annas share in the said jalkar. the petitioners claim that they had between them acquired a permanent lease-hold and/or tenancy interest in sixteen annas of the said jalkar, and after the passing of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the 'act') they became direct tenants and or lessees under the Government, according to the provisions of section 5 of the said Act. It is further stated in the petition that the State Government had accepted rent from the petitioners for the year 1362 B. S. and had granted Dhakhilas in respect of the same. On or about 5th March, 1956 the petitioners were served with notices issued by the Estates Acquisition Collector of Murshidabad, under section 10 (2) of the said Act, read with rule 7 (2) of the Rules framed under the said Act, asking the petitioners to give up possession of the entire jalkar on the 6th May, 1956. to an officer empowered on this behalf under section 10 (3) of the said Act. This application was made and the Rule was issued on the 7th May, 1956 upon the opposite parties to show cause why a writ in the nature of mandamus should not be issued directing them to forbear from proceeding further, or giving effect to, the said notices or orders dated 2nd March, 1956.

(2.) UNDER section 5 of the said Act upon the due publication of a notification under section 4, all estates and the rights of intermediaries in all such estates, vested in the State free from all incumbrances. It is provided in clause (ii) of sub-section (a) of section 5, that amongst other rights, rights in fisheries shall vest in the State. It is provided in sub-section (c) of section 5 that every non-agricultural tenant holding any land under an intermediary shall hold the same directly under the State on the same terms and conditions as immediately before the date of vesting. Under clause (e) of sub-section (i) of section 6 of the said Act, an intermediary is entitled to retain in his khas-possession, all tank-fisheries Under the proviso to sub-section (2) of section 6 it has been laid down 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 to the lessee on the same terms and conditions as immediately before such date.

(3.) THERE can be no doubt that so far as the Midnapore Zamindary Co. Ltd. , is concerned, it is clearly an intermediary' as defined under the Act. Now, if the jalkar in question was a tank-fishery, then under the proviso to sub-section (2) of section 6, the petitioners would become lessees under the State Government. The respondents however, dispute that it is a tank-fishery and have stated that it is a river-fishery. As it is to be gathered from the name and description of the fishery itself, it appears to be a river-fishery. This however, is a disputed question of fact, which I cannot decide in this jurisdiction. Perhaps it is because the petitioners realise this that they have not in this application emphasised the nature of the fishery, nor have pressed their claim under the proviso to sub-section (2) of section 6. Before I proceed to deal with the precise grounds upon which the petitioners base their claim, I should mention that in the vernacular lease annexed to the petition it has been clearly laid down that the petitioners would have no right in the land, that is to say, the underlying land or the subjacent land, [but would have only the right to catch wish in the jalkar. The way that the petitioners have put forward then-present claim is as follows: They have based their claim on section 5 of the Act, claiming that they are non-agricultural tenants holding lands under an intermediary. If this be the fact, then they are entitled to retain possession of the jalkar from two points of view. Firstly, the interests of a non-agricultural tenant is not included in. the expression "incumbrances" as defined by sub-section (h) of section 2 of the said Act and under sub-section (c) of section 5, a non-agricultural tenant holding land under an intermediary would come to hold the same directly under the State, on the same terms and conditions as immediate before the date of vesting. Therefore, the first question to be decided is as to whether the petitioners are non-agricultural tenants. The expression, "non-agricultural tenant" has been denned under the said Act. Under sub-section (j) of section 2 of the said Act, "non-agricultural land" has been defined to mean a land other than an agricultural land. Under sub-section (k) of section 2 of the said Act a "non-agricultural tenant" has been defined to mean a tenant of non-agricultural land who holds under a proprietor '. a tenure-holder or under-tenure-holder. It has been argued by Mr. Sinha on be-half of the petitioners at great length that the petitioners are non-agricul-tural tenants. In my opinion, this argument cannot be accepted. To start with, the right of fishing is not a right in land at all. It is what is called a "profit-a-prendre", and is a right arising out of land. In my opinion, this position has now been fully established and cannot be disputed. It has been laid down in a Supreme Court decision. Ananda Behara and Anr. v. The State of Orissa and Anr. (1) A. I. R. (1956) S. C. 17. In that case, the dispute was about a fishery right in the Chilka Lake, which is situated in what was once the estate of the Raja of Parikud. This estate vested in the State of Orissa under the Orissa Estates Abolition Act, 1951 (Act I of 1952) on 24-9-1953. The petitioner had entered into a contract with the ex-proprietor of the Estate, prior to its vesting in the State of-Orissa, and had obtained a license to catch and carry away fish from a specific portion of the lake. The State of Orissa refused to recognise the right and began to auction the right, when the petitioner filed an application before the Supreme Court under Article 32 of the Constitution. It was held that the right to catch and carry away fish from specific portions. of the lake amounted to a license to enter on the land coupled with a grant to catch and carry away fish, and that it amounted to a "profit-a-prendre", which is regarded in India as a benefit arising out of land and as such is an immovable property. Mr. Sinha has drawn my attention to a Bench decision of this High Court, Babu Brajendra Kumar Roy Chou-dhury v. Governor General of India in Council (2) 48 C. W. N. 537, in which it was held that a right to a several fishery was not a benefit arising out of land, nor was it an incumbrance on the land. This can no longer be considered as good law, in view of the Supreme Court judgment. The position therefore, is, that the right of the petitioners was not a right to the land, but to a benefit arising out of the land. The lease expressly laid down that the petitioners would have no interest in the underlying or the subjacent land, relating to the jalkar. If this is so, then they cannot be said to have any interest in non-agricultural land, and therefore, cannot be deemed to be non-agricultural tenant. Mr. Sinha has argued that his clients are interested in the land, and since fishing is not agricultural it must be considered as non-agricultural land and his clients must be deemed to be non-agricultural tenants. This argument cannot be accepted for the reasons given above. A benefit arising out of land is not the land itself, although it may be a kind of immovable property. Many things are however considered as immovable property which are not land. The learned Government pleader has argued that not only is the petitioners' interest not in the nature of non-agricultural tenancy, but it is a "profit-a-prendre" and consequently, is an incumbrance upon the estate of an intermediary, namely, the Midnapore Zamindary Co. Ltd. He points out that the word "incumbrance" has not been fully defined in the said Act. it merely says that it does not include a non-agricultural tenancy. The positive definition however, is to be found in section 161 of the Bengal Tenancy Act. Under section 161 of the Bengal Tenancy Act, the term "incumbrance" used with reference to a tenancy includes, inter-alia, a right of easement created by a tenant on his tenure off holding, in limitation of his own interest. He further refers me to the case of Chundee Churn Roy v. Shi)'' Chaunder Mundul (3) (1880) I. L. R. 5 Cal. 945, where it has been laid down that the word "easement" include. : what in English law is called a "profit;-a-prendre", that is to say, a right to enjoy the profits out of the land belonging to another. It was further laid down that a prescriptive right of fishing is an "easement" as defined by section 3 of the Limitation Act of 1877. In my opinion, this argument is also c:f substance. The right enjoyed by the petitioners was a benefit arising out cl land, namely, a "profit-a-prendre". it is an "easement", and therefore, comes within the meaning of the expression "incumbrance" as used in sub-section (a) of section 5 of the Act. Since all estates and the rights of intermediaries in such estates have vested in the Government, free from incumbrances, it follows that unless the petitioner's can show that they are able to save their rights under some provisions of law, the State must take the estate free from the petitioners' right. As I have said however, the petitioners have really based their rights on being non-agricultural tenants, and in this they have failed. Next comes the point as to the effect of certain rent-dakhilas being granted to the petitioners for the year 1362 B. S. This appears to be a highly disputed point. It is true that certain rent-dakhilas were issued by the Tashildar appointed by the Government. Copies of these dakhilas are annexed to the counter-affidavit filed on behalf of the Government by Kulada Ranjan Das Sarkar, affirmed on 28th May, 1956. In the said counter affidavit it has been stated that the Tahsildar concerned was appointed by the Government to realise rent from Mauzas Bahadurpur, Naya Bahadurpur and Narayanpur, situated within the police station Suti in the district of Murshidabad, and that he was never authorised to collect any rent from the jalkar in question, which is bounded by different Mouzas within the jurisdiction of police station, biz. , Raghunathganj. Coming now to the dakhilas themselves, which are annexures to the said affidavit, I find that no mention has been made of any jalkar, and secondly it has been expressly stated therein that it was given 'without prejudice' to the respective right, title and interest of the parties concerned. The exact expression used is. It is obvious therefore, that these dakhilas cannot create title in the petitioners, or in any event it is a highly disputed question of fact as to whether such title has been created. Such a point cannot be decided in this jurisdiction. Apart from these points, on the merits it seems to me that there are two insuperable barriers before the petitioners which they can not surmount. The first is that the settlement record-of-rights has been prepared and finally published under the Act and a certified copy thereof has been placed before me. It does not show the right which the petitioners claim. Under subsection (4) of section 44, every entry in the record-in-rights finally published under sub-section (2) of section 14 shall. subject to any modifications made by any order on appeal under subsection (3), be presumed to be correct until it is proved by evidence to be incorrect. That being so, the fact the petitioners did not make any objection during the settlement of the record-of-rights and allowed the final publication to be made without mention of the right claimed by them, makes it impossible in this application to grant any relief to the petitioners. They have made no objections to the entries in the record-of-rights, and if the entries were wrong, did not prefer any appeal. The entries have therefore, become final and conclusive, and this Court cannot go beyond them. The second insuperable difficulty before the petitioners is as follows: As I have stated, this Rule was issued on the 7th May, 1956 and there was an interim injunction restarting the respondents from taking possession and or interfering with the petitioners' jalkar till the disposal to the Rule. Thereafter, an application was made by the Government for vacating the interim order. On or about 2nd July, 1956, I ordered that if the petitioners jointly deposited with the Collector of Murshidabad a sum of Rs. 3,000/- then the interim injunction would continue, otherwise it would stand vacated. The reason why this application was made was that other parties were willing to pay that amount and if the amount was not secured then the Government might in the end suffer damages. Thereafter another application was made on behalf of the Government stating that a further amount should be furnished as security because a new period had come into being and Government would suffer further damages. On the 20th January, 1959, I made an order that if the petitioners deposited a further sum of Rs. 4,000/- with the Collector of Murshidabad as security then the interim order would continue, in default, the interim order would stand vacated. Actually the amount of security that was asked for wag much more as it related to a period of two years, but I fixed it at Rs. 4,000/- in view of the fact that the petitioners had already deposited Rs. ,000 -. The petitioners failed to furnish the security with the result that the interim order stood vacated and thereafter the Collector of Murshidabad put the fishery into auction and a third party has been declared as the highest bidder and I am informed that he has already deposited some money. This third party has not been brought before me and I do not see how I can make an order affecting his rights. That this position has occurred is purely the fault of the petitioners themselves who failed to com ply with my order, whereupon the interim order stood vacated. For this reason also, no relief, or in any event no effective relief, can be granted to the petitioners, for these reasons the petitioners have failed to establish any ground for interference by this Court and the application must fail. The Rule is dis-charged. Interim orders are vacated. There will be no order as to costs. Rs. 3,000/- that has been furnished as security will be taken by Government, this will also be without prejudice to any other legal claims or right of action that the parties may have against one another.