Case: State of West Bengal Vs. Shebaits of Iswar Sri Saradia Thakurani &amp; Others

(1).5. As stated earlier, both the last District Settlement and the Revisional Settlement have recorded the tank fishery as the debuttor property in respect of which the names of the respondents were entered as shebaits. But in view of the names of the Sahas appearing therein as tenants paying Rs. 60/- as annual rent, a notice was served on the respondent by the Collector of Murshidabad to hand over possession of the said tank. The respondents objected to the said notice. The State Government thereupon filed an objection under Section 44(2-a) for revising the entry in the record-of-rights. The objection was heard by the Settlement Officer, Kandi, under Section 44(2-a). He rejected the Governments objection and held that the said tank was not leased out to the said Sahas, that what was described as lease in the said entry was no more than a right of fishing without any right in the sub-soil of the tank or its embankments, and therefore, the must be held to have been in the khas possession thereof immediately before the date of vesting under the Act. In an appeal by the Government, the District Judge, as the appellate tribunal under the Act, reversed the order of the Settlement Officer and held that the said Sahas were the tenants of the tank fishery immediately before the date of vesting, and that, therefore, the proviso to Section 6(2) applied and the said Sahas must be deemed to be the direct tenants of the Government.6. The respondents thereupon filed a writ petition in the High Court for having the said order of the tribunal quashed. The High Court agreed with the Settlement Officer and held that what was mentioned in the Revisional Record was an arrangement between the respondents and the said Sahas, under which the latter, in consideration of their cleansing the tank and payment of Rs. 60/- per year were to have the fish which they might catch from the tank, and that, therefore, Section 6(2) proviso, was not attracted. This appeal by the State Government disputes that view.7. On the facts on record there can be no manner of doubt that the deity was the intermediary in respect of the tank fishery within the meaning of Section 2(i). It is also beyond doubt that if the proviso to sub-section (2) of Section 6 were not to apply, the respondents as the shebaits of the deity would be entitled, notwithstanding Sections 4 and 5, to retain the said tank fishery under Section 6(1) but would hold it, under sub-section (2) of Section 6, directly under the State as tenants from the date of vesting.8. Did the proviso to Section 6(2) then apply to the present case ? The answer to that question depends upon, as the proviso says, whether the tank fishery was held immediately before the date of vesting under a lease by the said Sahas. If so, the lessees under such a lease, and not the lessors, would become the direct tenants of the State. In other words, the interest in the tank of the intermediary would disappear.9. It is true that both the entry in the Revisional Record and the receipt passed by the respondents in favour of the Sahas mentioned them as tenants. The receipt mentions that the tank was leased to them for a period of nine years at an annual rent of Rs. 60/- from 1358 B.S. to 1366 B. S. Two facts, however, emerge from the record. The first is that there was no deed, much less a registered deed, evidencing the alleged lease. The second is that neither the sub-soil nor the embankments of the tank were the subject-matter of the alleged lease. In the absence of any registered deed there could be no valid lease of the tank for a period of nine years as was the case of the appellant State. No right, either in the sub-soil of the tax or its embankments, was acquired by the said Sahas. The only interest, therefore, they could have acquired was in the fish in the tank. The materials on record show that their interest was confined to the fish they would catch from the tank in consideration for which they had agreed to pay Rs. 60/- per year and in addition were under the obligation to cleanse the tank and keep it cleansed. Such an arrangement would not mean a lease within the meaning of the proviso to Section 6(2), but only constitutes a licence under which, for the consideration above stated, they became entitled to fish yielded by and caught by them from the tank.10. A point somewhat similar to the one in this appeal arose in Ananda Behera v. State of Orissa ((1955) 2 SCR 919 : AIR 1956 SC 17 ) where it was held that a right to catch fish is profit a prendre which is immovable property within the meaning of the Transfer of Property Act read with Section 3(25) of the General Clauses Act, which would 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 the fish and to keep the tank cleansed. It is clear, therefore, that there was no legally enforceable lease of the tank in the favour of the Sahas immediately before the date of vesting, so as to attract the proviso to Section 6(2). Therefore, it was the deity through the respondents, who was entitled under sub-section 6(2) read with Section 6(1) to become the tenant of the State and not the said Sahas. The notice directing the respondents to hand over possession to the State was, therefore, without jurisdiction and was liable to be quashed.11. In our view, the High Court was right in quashing the order of the appellate tribunal, inasmuch as the tribunal by wrongly interpreting the Revisional Record appropriated to itself the jurisdiction under Section 44(2) of the Act to revise the entry in the Record-of-rights.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. On the facts on record there can be no manner of doubt that the deity was the intermediary in respect of the tank fishery within the meaning of Section 2(i). It is also beyond doubt that if the proviso to(2) of Section 6 were not to apply, the respondents as the shebaits of the deity would be entitled, notwithstanding Sections 4 and 5, to retain the said tank fishery under Section 6(1) but would hold it, under(2) of Section 6, directly under the State as tenants from the date of vesting.8. Did the proviso to Section 6(2) then apply to the present case ? The answer to that question depends upon, as the proviso says, whether the tank fishery was held immediately before the date of vesting under a lease by the said Sahas. If so, the lessees under such a lease, and not the lessors, would become the direct tenants of the State. In other words, the interest in the tank of the intermediary wouldfacts, however, emerge from the record. The first is that there was no deed, much less a registered deed, evidencing the alleged lease. The second is that neither thenor the embankments of the tank were theof the alleged lease. In the absence of any registered deed there could be no valid lease of the tank for a period of nine years as was the case of the appellant State. No right, either in theof the tax or its embankments, was acquired by the said Sahas. The only interest, therefore, they could have acquired was in the fish in the tank. The materials on record show that their interest was confined to the fish they would catch from the tank in consideration for which they had agreed to pay Rs. 60/per year and in addition were under the obligation to cleanse the tank and keep it cleansed. Such an arrangement would not mean a lease within the meaning of the proviso to Section 6(2), but only constitutes a licence under which, for the consideration above stated, they became entitled to fish yielded by and caught by them from theis clear, therefore, that there was no legally enforceable lease of the tank in the favour of the Sahas immediately before the date of vesting, so as to attract the proviso to Section 6(2). Therefore, it was the deity through the respondents, who was entitled under6(2) read with Section 6(1) to become the tenant of the State and not the said Sahas. The notice directing the respondents to hand over possession to the State was, therefore, without jurisdiction and was liable to be quashed.11. In our view, the High Court was right in quashing the order of the appellate tribunal, inasmuch as the tribunal by wrongly interpreting the Revisional Record appropriated to itself the jurisdiction under Section 44(2) of the Act to revise the entry in the