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High Court Of Calcutta
B.N. Maitra, J.
Aswini Kumar Roy – Appellant
Versus
Surupa Roy – Respondent
A.O.D. No. 484 of 1969
Decided On: July 02, 1981
JALKAR RIGHTS - TENURE - ACT SECTION LIST - [SECTION 6(2), SECTION 6(5), SECTION 107, RULE 4A] - THIS SUIT RELATES TO THE DISPUTE OVER THE OWNERSHIP OF A TANK FISHERY. THE PLAINTIFFS CLAIMED TO BE THE 8 ANNAS CO-SHARERS OF THE DISPUTED JALKAR, WHILE THE DEFENDANTS ASSERTED THAT THE JALKAR HAD VESTED IN THE STATE OF WEST BENGAL. THE COURT HELD THAT THE PLAINTIFFS WERE THE OWNERS OF THE TANK FISHERY AND THAT IT HAD NOT VESTED IN THE STATE. THE COURT ALSO HELD THAT THE PLAINTIFFS WERE ENTITLED TO 8 ANNAS SHARE OF THE JALKAR JAMA FROM THE DEFENDANTS.
Fact of the Case:
THE PLAINTIFFS, WHO CLAIMED TO BE THE 8 ANNAS CO-SHARERS OF A TANK FISHERY, FILED A SUIT FOR A DECLARATION THAT THEY AND THE PROFORMA DEFENDANTS WERE THE 16 ANNAS OWNERS OF THE TANK, THAT THEY WERE ENTITLED TO THE RENT OF THE TANK FROM THE DEFENDANTS, AND THAT THE TANK FISHERY HAD NOT VESTED IN THE STATE OF WEST BENGAL. THE DEFENDANTS ASSERTED THAT THE TANK FISHERY HAD VESTED IN THE STATE AND THAT THE PLAINTIFFS HAD NO TITLE.
Finding of the Court:
THE COURT HELD THAT THE PLAINTIFFS WERE THE OWNERS OF THE TANK FISHERY AND THAT IT HAD NOT VESTED IN THE STATE. THE COURT ALSO HELD THAT THE PLAINTIFFS WERE ENTITLED TO 8 ANNAS SHARE OF THE JALKAR JAMA FROM THE DEFENDANTS.
Issues: 1. WHETHER THE TANK FISHERY HAD VESTED IN THE STATE OF WEST BENGAL? 2. WHETHER THE PLAINTIFFS WERE ENTITLED TO THE RENT OF THE TANK FROM THE DEFENDANTS? 3. WHETHER THE PLAINTIFFS WERE ENTITLED TO A DECLARATION THAT THEY AND THE PROFORMA DEFENDANTS WERE THE 16 ANNAS OWNERS OF THE TANK?
Ratio Decidendi: THE COURT HELD THAT THE TANK FISHERY HAD NOT VESTED IN THE STATE BECAUSE THE PLAINTIFFS HAD RETAINED IT UNDER SECTION 6(2) OF THE WEST BENGAL ESTATES ACQUISITION ACT. THE COURT ALSO HELD THAT THE PLAINTIFFS WERE ENTITLED TO 8 ANNAS SHARE OF THE JALKAR JAMA FROM THE DEFENDANTS BECAUSE THEY WERE THE OWNERS OF THE TANK FISHERY. THE COURT FURTHER HELD THAT THE PLAINTIFFS WERE NOT ENTITLED TO A DECLARATION THAT THEY AND THE PROFORMA DEFENDANTS WERE THE 16 ANNAS OWNERS OF THE TANK BECAUSE THE PROFORMA DEFENDANTS WERE NOT CO-PLAINTIFFS.
Final Decision: THE COURT ALLOWED THE APPEAL IN PART AND DECREED THE SUIT IN PART. THE COURT DECLARED THAT THE PLAINTIFFS HAD 8 ANNAS SHARE IN THE DISPUTED PROPERTY AND THAT THE TANK FISHERY HAD NOT VESTED IN THE STATE OF WEST BENGAL. THE COURT ALSO DECLARED THAT THE PLAINTIFFS WOULD GET 8 ANNAS SHARE OF THE JALKAR JAMA FROM THE DEFENDANTS.
B.N. Maitra, J.
1. THE plaintiff 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 pro per 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 plain- tiffs' 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, I 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.
2. 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 interme diaries. 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 .
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 State of West Bengal vs. Saradiya Thakurani in A.I.R. 1971 S.C. 2097, Ahindra Nath vs. Manmatha Nath in A.I.R. 1973 Cal. 168, Special Bench, and Bihar E.G.F. Co-operative Society vs. Sepal Singh in A.I.R, 1977 S. C. 2149. It has been contended that only jalkar jama was given to Kanak Prova and it was :not at all a lease. Such jalkar right does not vest in the State and the tank fishery can be retained by the plaintiffs landlords regarding their 8 annas share under the proviso to sub-section (2) of section 6 of the West Bengal Estates Acquisition Act. There is no question of holding over, as alleged. There is a note that respondents nos. 6 and 17 died and the appeal abated against them Subsequently, S. K. Bhattacharjee, J. allowed the appellants' prayer and dispensed with the necessity of substituting the heirs of the deceased respondents nos. 6 and 17. The suit is maintainable. The provisions of section 57B of the West Bengal Estates Acquisition Act do not apply because the plaintiffs lave also asked for a declaration of their title to the disputed tank fishery. Reference has been made to the well-known Bench case of Saroj vs. Satin in 67 C. W. N, 764 to show that regarding jalkar the provisions of section 6 (2) of the West Bengal Estates Acquisition Act do not ap
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