Judgment

MISRA, J. :- The present two consolidated appeals by certificate are directed against the judgment of the High Court of Calcutta dated 11th April, 1963.

2. The dispute between the parties centres round a Jalkar fishery right in a tank known as Teremara Jalkar situate in village Chandiguri in the district of 24-Parganas. Hari Charan Mondai, predecessor in interest of the respondents took a permanent lease of the said fishery without the sub-soil from different sets of proprietors by virtue of registered kabuliyats dated 4th November, 1914 on certain rent and came in possession thereof. Thereafter on 14th June 1952 they in their turn granted a registered lease of the said fishery right to the appellant for a term of 11 years up to and including the Bengali year 1369 at an annual rent of Rs. 650/-.

3. Under the West Bengal Estates Acquisition Act, 1953, hereinafter referred to as the Act, the interest of the intermediaries vested in the State of West Bengal with effect froth 15th April, 1955. The respondents filed a suit for the recovery of Rs. 1440/- as rent for the years 1361 and 1362 B.S. together with interest. The claim was resisted by the appellant and his defence in the main was that the interest in the fishery had vested in the State from 1362 B.S. under the said Act and so the contract created by the lease had been frustrated and he is not liable to pay rent for 1362 B.S., that the last years rent deposited in advance was to be credited towards rent for 1361 B.S. and as such no rent was due from him. The learned Munsif decreed the suit in part with interest at the rate of 61/4% per annum holding that the interest of the plaintiff-respondents did not vest in the State, it being a tank fishery, so that the lease continued to subsist and the rent for 1369 B.S. paid in advance could not be credited towards rent for 1361 B.S. On appeal by the defendant the Subordinate Judge upheld the judgment and decree of the Munsif holding that in any case the interest of the plaintiffs had not come to an end and the contract as such subsisted and they were entitled to recover the amount claimed undaunted by the failure the defendant filed a second appeal before the High Court. The High Court also confirmed the judgment of the Subordinate Judge and dismissed the appeal. The defendant has now come up to this Court, as stated earlier, by certificate.

4. The learned counsel for the appellant has reiterated the same contentions before this Court as well. The only pertinent question for consideration in this case is whether the right and interest of the plaintiffs had come to an end by virtue of the Act. It was contended for the appellant that the lease granted by the plaintiffs in favour of the defendant-appellant was a lease of a fishery right without the sub-soil. The fishery right, so contends the counsel, was only a profit a prendre which amounts to an, encumbrance within the meaning of the Act and when the interest of the plaintiff-landlords vested in the State of West Bengal free from encumbrances the plaintiffs right ceased to exist. Alternatively it was argued that even assuming that the fishery right was not an encumbrance, the defendant being a non-agricultural tenant within the meaning of the Act and the plaintiffs having an interest superior to that of the defendant, they were intermediaries as defined in the Act and their interest had vested in the State.

5. Section 4 of the Act provides for the vesting of the interest of the intermediary in the State free from all encumbrances. Section 6 of the Act authorises the intermediary to retain certain properties in spite of the vesting, including tank fisheries. Sub-section (2) of S. 6 provides that an intermediary who is entitled to retain possession of any land under sub-s. (i) shall be deemed to hold such land directly under the State from the date of vesting as a tenant subject to certain terms. The proviso to sub-s. (2) contemplates that if any tank fishery or any land comprise