A fishery right in alieno solo is 'land' and 'estate' within the meaning of the Orissa Estates Abolition Act, 1951, but it is not 'land used for agricultural or horticultural purposes' as required by Section 7(1)(a) of the Act.

JUDGMENT :

Narasimham, C.J. - This is a petition under Article 226 of the constitution by the co-sharer proprietors of touzi No. 1467 of Cuttack Collector ate, against the Notification of the State Government u/s 3(1) of the Orissa Estates Abolition Act, 1951 vesting the said touzi in the State of Orissa free from all encumbrances.

2. The touzi is a fishery mahal and the right of the proprietors of the touzi is limited to the right to fish in the waters of river Paika (a branch of the river Mahanadi) in that portion which flows through Parghana Abartak. It appears that in the said Parghana the river flows over 21 villages and its bed is recorded in the Anabadi Khata of several private zamindars, under several touzis described in detail in paragraph 2 of the petition. The fishery Mahal was carved out during the Mahratta period (vide Annexure A) but was subsequently held in Khas for some years by the Government and then settled with private proprietors with a separate touzi number. In the Current Settlement of Orissa also (annexure B) the revenue payable for this touzi was fixed at Rs. 22/8/0. Petitioners 1 to 9 are all sons of one Padma Charan Parija who hold -/8/- annas interest in the touzi. Petitioners 10 to 12 hold the remaining -/8/-. It is an admitted fact that after the death of Padma Charan Parija the names of Petitioners 1 to 9 were mutated in Register-D of Cuttack Collectorate maintained under the provisions of the Bengal Land Registration Act, 1876.

3. Mr. H Mohapatra on behalf of the Petitioners urged that a fishery of this type in which the proprietors had absolutely no interest over the bed of the river or over its waters, would not be an 'estate' as defined in Section 2(g) of the Orissa Estates Abolition Act. That definition, omitting immaterial portions, is as follows:

2(g) 'Estate' means any land held by an intermediary and Included under one entry in any of the general registers of revenue-paying lands...prepared and maintained under the law for the time being in force by the Collector of a district.

Mr. Mohapatra rightly conceded that In as much as a separate touzi number was given to this mahal and the necessary entry was made in register-D maintained under the provisions of the Bengal Land Registration Act, 1876, the latter portion of the aforesaid definition may apply, but as this property is not 'land' it cannot be deemed to be an 'estate'. The expression 'land' is nowhere defined in the Orissa Estates Abolition Act; and according to Mr. Mohapatra a mere fishery

Mahal, without any interest in the land on which the water flows, wilt not be an 'estate'.

4. A fishery mahal is a well known feature of the zamindari system prevalent in Bengal, Bihar & Orissa. Exclusive right of fishery without any interest in the land or water, used to be granted even in pre-British times to certain persons and such a right was recognized In the Permanent Settlement and separate touzis were allotted to such mahals. I need only refer to Raja Srinath v. Dinabandhu AIR 1914 P.C. 48, and AIR 1946 92 (Privy Council), where other rights incidental to the rights of the proprietor of a fishery mahal were fully discussed. Such an exclusive right of fishery in alieno solo has always been recognized as a profit a prendre or benefit arising out of land and as such "immovable property" as defined in Section 2(25) of the General Clauses Act See Jadu Jhalo v. Gaur Mohan Jhalo ILR Cal. 544, Shibu Haldar v. Gupi Sundari ILR Ca1. 449 and Lakshman Gowroji Nakhwa Vs. Ramji Antone Nakhwa. In a recent decision of the Supreme Court reported in Anand Behera v. State of Orissa 22 C.L.T. 101 (S.C.), this view was endorsed and such a right of fishery was held to be a "benefit arising out of land" and as such' immovable property".

5. The more difficult question to decide is whether a benefit arising out of land can be held to be 'land' for the purpose of Section 2(g) of the Orissa Estates Abolition Act. The expression land' has been defined in the Land Acquisitio