B.N. Maitra, J.@mdashThe plaintiffs have alleged that they are the 8 annas cosharers of the disputed jalkar described in schedule of the plaint. The proforma defendant nos. 5 to 11 and 20 are the remaining 8 annas owners of that tank fishery. Proforma defendant no. 5, Kanak Prova, executed a registered lease dated 3rd February, 1948, for a period of 41 years and took a temporary lease of that jalkar jama at an annual of Rs. 15/- for the period from 1355 B.S. to 1396 B. S. They also have retained that tank fishery by submitting a proper return and it did not vest in the State of West Bengal, defendant no. 4. The jalkar has been recorded in the R. S. Khatian. But there is a wrong entry therein that the interest of plaintiffs'' and of their co-sharers had vested in the State. On the 3rd September, 1962, Kanak Prova executed a registered sale deed in favour of principal defendants nos. 1 to 3 regarding that jalkar. Since then, the defendants nos. 1 to 3 are in actual possession of that jalkar. She illegally set up the State of West Bengal as her landlord in that kobala. So, a cloud has been cast on the plaintiffs'' title. The suit is for a declaration that the plaintiffs and proforma defendant no. 5 to 11 and 20 are the 16 annas owners of the tank in question, they are entitled to the rent of that tank from defendants nos. 1 to 3, for a further declaration that the tank fishery did not vest in the State of West Bengal and as such the entry in the R. S. Khatian is erroneous. A further prayer is to recover khas possession of the tank after the expiry of the term of the lease. Proforma defendants nos. 1 to 3 filed a written statement. The defence is that the plaintiffs and their co-sharers granted a lease of the water of the tank and its sub-soil to proforma defendant no. 5. They were intermediaries. The tank fishery duly vested in the State of West Bengal and the plaintiffs have no title. The entry in the R. S. Khatian about vesting is correct. Proforma defendant no. 5 held the lease immediately before the date of the vesting. That lease shall be deemed to have been granted by the State Government on the same terms and conditions. Consequently, she became the latter''s direct tenant thereof under the same terms and conditions. The suit is not maintainable.
2. The learned Munsif rejected the plaintiffs'' version and dismissed the suit. The plaintiffs filed an appeal. The appellate court affirmed the findings of the learned Munsif, stated that the property duly vested in the State and hence the plaintiffs appellants could not get any relief. The present second appeal has been filed by the plaintiffs.
3. Mr. Manindra Nath Ghosh has referred to three well-known cases of
4. Mr. R.N. Mitra, learned Advocate appearing on behalf of the respondents, has stated that the suit is not maintainable because by the sale made by Kanak Prova, the defendants nos. 1 to 3 stand in the position of co-sharers. So, the plaintiffs cannot ask for ejectment against them in future after the expiry of the period of lease in February, 1989. In view of the case of
5. The first question is whether the appeal has abated as a whole. It appears from the records that on the 16th September, 1975, it was recorded that there was an abatement regarding respondents nos. 6 and 17. Thereafter the appellants filed an application under Order 41 Rule 14(3) of the CPC for dispensing with service of processes on respondents nos. 6, 17 and others on the ground that they did not appear and contest the suit. So, it was not necessary to serve notice of appeal upon them or to substitute their heirs. A prayer was made for dispensing with service of notices on them and also to exempt the appellants from substituting their heirs. On the 21st April, 1976, the prayer was allowed. An order was passed by S. K. Bhattacherjee, J. that the service of notices on them "be dispensed with as prayed for". The effect of that order of allowing the plaintiffs''-appellants'' prayer in full was that the order of abatement was impliedly set aside, otherwise without setting aside the previous order recorded on the 16th September, 1975, such prayer could not be allowed.
6. According to the Calcutta amendment of the then sub-rule (4), Rule 4 of Order 22 of the Code, the Court is empowered to exempt the plaintiffs from the necessity of making such substitution. The effect of the judgment will be the same as if it had been pronounced before the death took place.
7. Order 41, Rule 14 of the Code was amended by the Calcutta High Court by inserting sub-rule (3). The then sub-rule (3) thereof says that the court of appeal shall have a discretion to make an order at any stage of the appeal, dispensing with service of notice on any such respondent. Since the appellants prayer in this respect was allowed, it must be held that the appeal has not abated. The cases cited for the respondents, thus, have no application to the facts of this one.
8. Then about the question whether the suit is maintainable because a prayer for future khas possession has been made. This prayer is plainly misconceived and premature because according to the plaint, the terms of the alleged lease would expire after the 3rd February, 1989. In that view of the matter, it is immaterial whether by virtue of the sale made by Kanak Prova to defendants nos. 1 to 3, they also became the plaintiff''s co-sharers.
9. Then about the aforesaid case of Gurbachan vs. Kamal (supra). This decision has no application for it has already been indicated that this prayer is liable to be rejected.
10. Then about the bar of the deleted section 46 of the Act. The important question arises whether the present suit will abate because a prayer has been made that the entry in the R. S. Khatian is partially incorrect. If this objection prevails, then there will be no tribunal where in such cases a prayer for title can be made. The case of Suren vs. Sushil (supra) was decided on a consideration of the then provisions of section 46 of the Act. This matter was considered by the Bench case of
11. Then the principal question arises whether the right held by the proforma defendant no. 5 and at present by principal defendants nos. 1 to 3 is a lease or it is only a mere profits a prendre. Monthly jalkar jama is being paid and accepted. Section 6 of the West Bengal Estates Acquisition Act empowers the intermediary to retain certain lands or property. The effect of sub-section (2) and of its proviso was considered in the aforesaid case of State of West Bengal vs. Saradiya Thakurani (supra) it is a fit case for applying the principles enunciated by the Judicial Committee that mofussil pleading should be liberally construed. Ext. 6 shows that a unilateral kabuliyat was executed regarding the disputed jalkar. In view of the provisions of section 107 of the Transfer of Property Act, the lease was required to be executed both by the lessor and by the lessee. Hence, it is not at all an operative document of lease and that document can be looked into only for a collateral purpose and not for the purpose of showing whether the sub-soil and a right in the tank was also conferred on Kanak Prova. In the aforesaid case before the Supreme Court, there were provisions that the transferor would maintain the banks and cleanse the bed. There was an entry in the Record of Rights that Kumaresh Chandra and Aswini Kumar Saha were the tenants of that tank by paying an annua rent of Rs. 60/-. A receipt issued by the respondents also stated that the tank had been leased out by the lessors for 9 years at a rental of Rs. 60/- per annum. There was no registered lease. It will appear from the page 2100 of the report that the deity was an intermediary regarding the tank fishery within the meaning of section 2(i) of the West Bengal Estatas Acquisition Act and since the proviso to sub section (2) of section 6 did not apply, in spite of the provisions of sections 4 and 5 of the Act, the intermediary would retain the tank fishery, but would hold it directly under the State as tenants from the date of vesting. If the proviso to section 6(2) applied, the intermediary''s interest in the tank would disappear. Since in that case, there was no registered lease evidencing the granting of a lease to the alleged lessees, the sub-soil and the embankment of the tank were not the subject matter of the alleged lease. It was thus held that no right in the sub-soil of the tank or of its embankment was acquired by Kumaresh and Aswini Kumar Saha. Their interest was confined to the fish, they would catch from the tank in consideration of which they had agreed to pay Rs. 60/-per year with an additional obligation to cleanse the tank It was not at all a lease within the meaning of the proviso to section 6(2) of the Act and it only constituted a licence. The further finding was that in such circumstances, the deity through the respondents of that appeal were entitled to retain that property u/s 6(2) read with section 6(1) to become the tenants of the State.
12. The principles of this case were followed in the well-known Special Bench case of Ahindra v. Manmatha Nath (supra). The appellants of that case granted to the respondents the right of fishing in the tank for the period of 9 years on the basis of a unilateral kabuliyat. The respondents undertook to pay a monthly sum of Rs. 100/- to the appellant. After the expiry of the period of 9 years, the respondents held over on the same terms and conditions as provided for in the kabuliyat. Then the appellants gave a notice to the respondents to quit. It has been stated that since the kabuliyat was a unilateral one, it was inoperative as a lease u/s 107 of the Transfer of Property Act. There was no lease in the eye of law. The respondents were, therefore, held to be licensees and not lessees and were not entitled to avail of the provisions of sub-section (2) of section 6 as they did not hold any tank fishery under the lease, vide the pages 170 and 171 of the report. Now, it seems to me that it is not a bare license, but profits a prendre.
13. In the well-known case of Bihar Eastern Gangetic Fishermen Co-operative Society vs. Sepai Singh (supra), the settlement of jalkar made with respondent no. 1 of that case was not valid and enforceable because of contravention of the provisions of Article 299(1) of the Constitution of India. It has, therefore, been held that such lease was not valid and enforceable. The right to catch fish and carry away fish being profits a prendre, it is to be regarded as an immovable property. The grant of profits a prendre has to be by means of a registered instrument. If the transaction of sale of the right to fish and carry away the fish is not affected by means of a registered instrument, no title would pass.
14. If the principles of those cases be now applied, it can be seen that though in this case the unilateral kabuliyat, Ext. 6, was a registered one, still because of non-compliance with this mandatory provision of section 107 of the Transfer of Property Act, such document did not create any lease in the eye of law. Consequently, there was no valid lease in favour of Kanak Prove. It is, therefore, held that she and by purchase from her, defendants nos. 1 to 3 did not become lessees of the disputed tank fishery, there was no lease of the tank, of its banks and of the sub-soil and it has only a jalkarright. It was more than a mere licence i.e. profits a prendre.
15. Then about the principles enunciated in the aforesaid Supreme Court case of
16. Now the question arises whether the tank fishery has vested in the State. In view of the aforesaid Supreme Court decision of State of West Bengal vs. Saradiya Thakrani (supra) the plaintiffs have become owners of the property and they can retain the same u/s 6(2) of the Act. The proviso to sub-section (2) does not apply and consequently the interest of the plaintiffs in the tank fishery did not vest in the State and that interest was not wiped out. It is, therefore, held that the entry in the R. S. Khatian in this respect is incorrect.
17. The further point is whether the plaintiffs can still retain that property. The relevant portion of rule 4A of the West Bengal Estates Acquisition Rules says that if the area of the land held by a raiyat and under raiyat, who is deemed to be an intermediary u/s 52, does not exceed the limit laid down under clause (c) or (d) of sub-section (1) of section 6, he shall not be required to exercise such choice. In the case of Gour Gopal vs. West Bengal (supra) it has been stated that in section 6(5) of the Act, an intermediary has a right and an opportunity of retention even alter the prescribed time limit is over. In the latest Bench case of Lakshminarayan vs. The Land Reforms Officer, reported in 80 CWN 42, the provisions of Rule 4A were considered. It has been stated that fresh return can be filed according to the Rule. The plaintiffs have retained the disputed property. Consequently, Rule 4A does not operate as a bar to the maintainability of the present suit.
18. Then about the prayer that the plaintiffs can claim rent of the jalkar jama. This matter was considered in the Bench case of Saroj vs. Jatindra Nath (supra). That was a suit for recovery of rent from 1361 to 1362 B. S. at the rate of Rs. 650/- per month on account of a fishery leased to the defendant by a registered document of lease executed on the 14th June, 1952. It will appear from the page 767 of the report that the word "jalkar" means rent for water and the phrase "jalkar jama" means "a tenancy for the use and occupation of water" but not necessarily of land. It was held that the lessees under that lease had the right of disciculture with respect to the water in the tank and hence the plaintiff''s interest of that case was not affected until there was a revision of the terms and conditions by the State Government.
19. Lastly, about the prayer made for acceptance of additional evidence under Rule 27 of Order 41 of the Code. This Rule has undergone an amendment by the Amending Act of 1976. The lower courts did not refuse to admit any evidence. New clause (aa) thereof says that evidence can be accepted if the party concerned establishes that notwithstanding the exercise of due diligence, such additional evidence was not within his knowledge or could not after the exercise of due diligence be produced by him at the time when the decree appealed against was passed.
It appears from the petition made by the respondent that compensation rolls were prepared in favour of the appellants nos. 1 and 2 in case nos. 29 Behala A of 1970-71 and case no. 14 Bongaon B of 1970-71 respectively. If the aforesaid case nos. 14 and 29 were in fact started, there is no reason why the appellants had no knowledge thereof for all these years. They were not at all vigilant in the matter and consequently the case is not covered by the provisions of clause (aa) of rule 27(1) of the Code. In the case of
20. Then about the prayers made by the plaintiffs. The plaintiffs have asked for declaration of their interest as also regarding the interest of the proforma defendant. Such prayer regarding the proforma defendants cannot be made in law as they are not the co-plaintiffs.
21. The appeal is allowed in part. The judgment and decree appealed against be hereby set aside. The suit is decreed in part. It is hereby declared that the plaintiffs have 8 annas share in the disputed property and the tank fishery has not vested in the State of West Bengal, defendant no 4. The entry in the R. S. Khatian in this respect is declared to be erroneous. It is further declared that the plaintiffs will get 8 annas share of the jalkar jama from the defendants nos. 1 to 3. The rest of the prayer is disallowed. The parties will bear their own costs, throughout.
