A mere right to rear and catch fish in a tank cannot be leased under the West Bengal Estates Acquisition Act, 1953, as it constitutes a license and not a lease.

( 1 ) THIS appeal hat been referred to the Special Bench by a Division Bench consisting of P. N. Mookerjee and Amiya Kumar Mookerji, JJ. under Part I, Chapter II, Rule 1, Proviso (ii) read with Chapter VII, Rule 2 of the Appellate Side Rules. The point of law which induced the learned Judges of the Division Bench to refer the appeal to the Special Bench is as follows:--Whether, in the case of a tank fishery, (that is, a tank which is being used for pisciculture or for fishing), where the right of pisciculture or fishing is, at the date of Vesting under the West Bengal Estates Acquisition Act, held under a lease from the owner intermediary, Section 6 (2) proviso Of the Act will have any application, and, if so, what will be its effect and what will be the rights of the particular intermediary and the particular lessee in respect of the said tank fishery including the right of pisciculture or fishing under the relevant provisions of this Statute, namely, Sections 5, 6 (1) and 6 (2) including the proviso.

( 2 ) IN order to consider the said point and the respective contentions of the parties it is necessary to state the facts of the case. The disputed tank belonged to the appellants. By a Kabuliat dated July 16, 1941, the appellants granted to the respondents the right of fishing in the disputed tank for a period of nine years. The respondents were to pay the monthly sum of Rs. 100/- (?) to the appellants for the said grant or settlement of the right of fishing in the disputed tank. After the expiry of the said period of nine years the respondents held over on the same terms and conditions as provided for in the Kabuliat The appellants served the respondents with a notice directing the respondents to quit the disputed tank on the expiry of Aswin 1367 B. S. As the respondents did not comply with the terms of the notice, the appellants instituted the suit out of which this appeal arises, for recovery of khas possession of the disputed tank and for realisation of arrears of rent from 1365 to 1367 B. S.

( 3 ) THE respondents contested the suit. It was alleged that they were lessees of the disputed tank together with its banks; that the appellants were intermediaries and that their interests in the disputed tank had vested in the State under the West Bengal Estates Acquisition Act, 1953. It was further contended by the respondents that under the proviso to Section 6 (2) of the Act, the respondents being the lessees of the tank fishery, became direct tenants under the State of West Bengal.

( 4 ) THE trial Court came to the findings that only the fishery right independent of sub-soil was leased to the respondents and that the interests of the appellants did not vest in the State under the Act. Upon these findings, the trial Court decreed the suit The respondents were directed to vacate the disputed tank within one month from the date of the decree, in default the appellant would get khas possession of the same through Court. A sum of Rs. 281. 25 was decreed on account of arrears of and and Rs. 10/- on account of mesne profits tentatively. It was further directed that the appellants would get mesne profits from Kartic 1367 B. S. till the delivery of possession at the rate of rent, less the amount tentatively decreed, on payment of additional court-fees.

( 5 ) BEING dissatisfied with the decree of the trial Court, the respondents preferred an appeal which was heard by the learned Subordinate Judge, First Court, Hooghly. The learned Subordinate Judge also came to the finding that the respondents had no right to the sub-soil but they had only the right of fishing in the disputed tank. The learned Subordinate Judge, however, took the view that the appellants were intermediaries and their interests in the disputed tank vested in the State of West Bengal and that in view of proviso to Sub-section (2) of Section 6, the appellants were not entitled to retain possession of the tank fishery under Section 6 (1 ). The learned Subor