Ganesh Chandra Khan vs State of West Bengal

Bagchi, J.—This appeal is arising out of the judgment and decree passed in the T.S. No. 67 of 1964 of the Court of the Subordinate Judge, Murshidabad, Berhampore, District Murshidabad, by the learned Subordinate Judge who tried the said suit along with suit Nos. 08 and 69 of 1964 analogously covered by the one and the same judgment.

In T.S. No. 67 of 1964 the Plaintiffs are Ganesh Chandra Khan and Sm. Annapurna Khan while the Defendants are the State of West Bengal and the Collector of Murshidabad. In other two title suits there were different Plaintiffs but the same Defendants. All the Plaintiffs in all the suits, however, come from the same family. Ganesh, Bishnu and Kartick and their respective ways are trustees to the separated trust estate of late Jogendra Chandra ''Khan of Mankundu. All the suits relate to declaration of the title of the Plaintiffs in their respective suit properties as well as their permanent injunction. The subject-matters of all the three suits are different jalkars (right of fishery) appertaining as it were to touzis Nos. 199 and. 486 of the Murshidabad Gollectorate. In the instant suit No. 67 of 1964, the Plaintiffs claim jalkar right as appertaining to touzi No. 199 of the Murshidabad Gollectorate. One Gopal Sinha of Kokabazar,.P. S. Sahenagar, was the proprietor of Sayer jalkar mahal comprising of various jalkars appertaining to touzi No. 199 of the Murshidabad Collectorate. On Falgoon 21, 1268 B.S, (March 5,.1862), one Jagabandhu Roy took settlement of putni interest in respect of the said jalkar mahal of touzi No, 199. including the jalkars involved in the suit No. 67 of 1964 and the other two suits by executing a registered kabuliyal at an'' annual rental of Rs. 1,041 in favour of the said Gopal Sinha. Gopal Sinha having died on Falgoon 23, 1268 B.S. (March 7, 1862) his widow executed a patta dated Sravau 22, 1269 B.S. (August 6, 1862) in favour of the said Jagabandhu Roy in confirmation of the settlement granted by her husband. On Jaistha 17, 1272 B.S. (May 29, 1865) Jagabandhu Roy executed a patta in favour of one Paresh Nath Pandey in respect of only the jalkars appertaining to touzi No. 199 including the suit jalkars as described in sch. A to the plaints at an annual rental of Rs. 1,341 thereby creating a darpulni interest in respect of the same. On Magh 24, 1279 B.S. (February 5, 1873) the said darputni right of Paresh Nath Pandey was purchased by Saraswati Devi, mother of Jogendra Chandra Khan in benam of one of their karmacharis, Dayal Chandra Sabui, with the funds.belonging to and for and on behalf of her minor sons including Jogendra Chandra Khan for the benefit of the minors. On December 30, 1872,.the said Saraswati Devi again purchased the putni interest of Paresh Nath Pandey and his wife Bidyabati Debya in respect of the jalkars of touzi No. 486 including the suit jalkars as described in sch. B of the plaint in Rent Execution Case No. 29 of-1872 in the Court of the Subordinate Judge of Birbhum in the benam of their another karrnachari Loknath Ghosh with fund belonging to and for and on behalf of her minor sons Jogendra Chandra Khan and his brothers. Subsequently,, Dayal Chandra Sabui executed a deed of release dated January 24, 1875, corresponding to Magh 12, 1281 B.S. in favour of Saraswati Devi and her sons Jogendra Chandra Khan and others and the said Loknath Ghosh also executed a similar deed of release in favour of Saraswati Devi and her sons on Jaiztha 13, 1289 B.S. (May 26, 1882). Subsequently, on October 13, 1916, by the partition decree passed in T.S. No. 21 of 1915 in the Court of the Subordinate Judge, 24-Parganas, between Jogendra Chandra Khan and his brothers. The jalkar of touzi No. 199 including the sch. A of jalkars in suit and putni interest of touzi No. 986 were exclusively allotted to Jogendra Chandra Khan. By a compromise decree passed in Partition Suit No. 287 of 1926, in the Court of the Subordinate Judge of Murshidabad between Jogendra Chandra Khan and his co-sharers the suit putni interest appertaining to touzi No. 486 including the sch. B jalkars in suit were also exclusively allotted to the said Jogendra Chandra Khan. Subsequently on June, 26, 1946, the said. Jogendra Chandra Khan while in possession and enjoyment of the said jalkars appertaining to both the touzis Nos. 199 and 486 created a trust in respect of all his properties including the suit jalkars by a registered indenture whereby he himself and his three grandsons (predeceased son''s sons), namely Ganesh Chandra Khan, Kartick Chandra Khan and Bishnu Chandra Khan, were constituted as trustees of the said trust and each of the said grandsons and the members of their family were made beneficiaries thereof. By a decree passed in Administration Suit No. 1519 of 1956 in the Original Side of the Calcutta High Court brought by the said Ganesh Chandra Khan, Kartick Chandra Khan and Bishnu Chandra Khan after impleading the beneficiaries of the trust, the said trust created by Jogendra Chandra Khan was separated into three separate trusts, after appointing the three sets of Plaintiffs of the three suits as trustees in respect of one of such separated trust comprising all properties including the jalkars as described in schs. A and B of the plaint. It is alleged that the predecessors of the Plaintiffs and, thereafter, the Plaintiffs have been in Mas possession of the jalkars as described in schs. A and B of the plaint from before Baisakh 1, 1362 B.S. (April 15, 1955)''when the estates and rights of intermediaries therein vested in the State under the West Bengal Estates Acquisition Act, 1953. The Collector of Murshidabad served u/s 10, Sub-section (2) of the said Act [hereinafter referred to in this judgment as the Act) on the Plaintiffs and the other trustees of the separated trust esitate calling upon them to deliver up possession of the jalkars including the suit jalkars against -which the Plaintiffs lodged their protests inasmuch as they retained possession of the jalkars in question. Against the said notices the Plaintiffs and other trustees moved an application under Article 226 of the Constitution of India before the Hon''ble High Court at Calcutta and G.R. No. 3143 of 1955 issued restraining the Defendants by an interim order from interfering with the Plaintiffs'' possession in respect of the jalkars including the suit jalhars on condition of payment of a sum of Rs. 3,000 per annum to the Government by the Plaintiffs, and other trustees which they have been paying since then. In the said Rule the contentions of the Defendant State of West Bengal were that the Plaintiffs were intermediaries, that the jalkars formed part of the river Bhagirathi, a tidal and navigable river, that the jalkars were associated'' with the soil and were not tank fisheries but river fisheries.and, as such, that the interest of the Plaintiffs and the other trustees vested in the State. The said Rule was, however, discharged by the Hon''ble High Court on April 12, 1957, against which the Plaintiffs and other trustees preferred an appeal bearing F.M.A. No. 12 of 1958 under Clause 15 of the Letters Patent. During the pendency of the said appeal, of course, there was an attempt for amicable settlement as per the terms submitted by the Plaintiffs to the Chief Minister of West Bengal, but the same did not materialise. However, the said F.M.A. No. 12 of 1958 was ultimately heard and their Lordships disposed of the same by their judgment dated February 20, 1954, after relegating the Plaintiffs to a regular suit with the observation that no expression of opinion, either in the appellate judgment or in the judgment appealed from, should be taken into consideration to decide the lights of the parties and by consent the injunction continued for four months. Therefore, the Plaintiffs instituted the present suit after service of notice u/s 80, Code of Civil Procedure, on the Defendant.. The contentions of the Plaintiffs in the three different suits are three-folds:. (i) that the Plaintiffs are not intermediaries within the provisions of the Act but are non-agricultural tenants in respect of the suit jalkars, (ii) that in the alternative assuming that the suit jalkars are part and parcel of the river Bhagirathi as contended by the State of West Bengal in the aforesaid Rule, the said river Bhagirathi being a public navigable river the question of vesting of the interests of the Plaintiffs in respect of the suit jalkars does not arise and (iii) that, in the alternative, even if the disputed jalkars arc tank fisheries within the. meaning of Section 6(e) of the Act and even assuming but not admitting that the interests of the Plaintiffs in respect of the suit jalkars are those of intermediaries the Plaintiffs are entitled to retain the suit jalkars as tank fisheries. According to the Plaintiffs, therefore, the Defendants have no right to demand to take delivery of possession of the suit jalkars which have not vested in the State in any event and, even assuming that the same have vested, the Plaintiffs are entitled to retain the suit jalkars as lessees under the State of West Bangal.

The Defendant State of West Bengal has contested all the three suits by filing written statements which are same in all of them. The State of West Bengal has not challenged the'' erstwhile title of the different Plaintiff in respect of the jalkars involved in the three different suits. The defence contentions, inter alia, are that the interest of whatever nature the Plaintiffs might have in the suit fisheries, the same had vested in the State with the promulgation of the Act and since then the Plaintiffs cannot claim any right, title and interestin respect of the suit fisheries and that the jalkars in suit were not in khas possession of the Plaintiffs from before Baisakh 1362 B.S. (April-May 1955) but were let out in lease with different persons for a term commencing from a time immediately before the date of vesting up to a period after the date of vesting together with the subsisting lease even if the jalkars in suit be assumed to be the tank fisheries. The further case of the defence is that the Plaintiffs are not non-agricultural tenants in respect of the jalkars of the three different suits as alleged, but they having acquired title to the jalkars appertaining to touzis Nos. 199 and 486 which are estates, ''their rights in the suit jalkars were rights of intermediaries in the State and as such, vested in the State u/s 5(a)(ii) of the Act free from all encumbrances, that the Plaintiffs having held the jalkars in suits in putni and darputnj rights, they were intermediaries and all their rights and interests in respect of the suit jalkars vested in the State by Operation of the Act and that the disputed jalkars being leased out to different persons for a term commencing from before the date of vesting upto a period after the date of vesting, the Plaintiffs lot the right of retaining the suit jalkars under the proviso to Section 6(2) of the Act, even if the jalkars in suit be assumed to be the tank fisheries. Accordingly, to the defence, therefore, the Plaintiffs are not entitled to any relief whatsoever although the'' Defendant could not take over possession of the suit jalkars on account of the injunction orders issued by the Courts.

On the aforesaid pleadings, the following were the issues framed in respect of all the three suits:

Issues:

(1) Has the suit been properly,valued and stamped?

(2) Were the jalkars in suit let out in lease with different persons for a term from a time immediately before the date of vesting ?

(3) Are the Plaintiffs deemed to be non-agricultural tenants in respect of the disputed jalkars ?

(4) Have the disputed jalkars vested in the-State u/s 5(a)(ii) of the Estate Acquisition Act ?

(5) Are the Plaintiffs entitled to retain possession of the jalkars as lessees under the State ?

(6) To what relief, if any, the Plaintiffs are entitled ?

(7) Are the disputed jalkars tank fisheries ?

The learned Judge held issue No. (1) in favour of the Plaintiffs.

On issues Nos. (2), (3), (4), (5) and (7) taken together for consideration as being inter-linked with one another, the learned Judge held: (i) that the Plaintiffs of the three different suits had title to their respective jalkars in suit prior to the date of vesting; (ii) the ancient documents that are available on record clearly prove that no interest in the sub-soil of the jalkars in suit appertaining to touzi No. 199 was demised, on the other hand, the same unmistakably establish that what was settled thereby was a mere right of fisheries in respect of the jalkars of louzi No. 199 subject to the public right of navigation; (iii) these acts of making fencing by bena and bamboo are mere acts incidental to the right of fishing and cannot be said to be any act of possession in respect of the land or have created any interest in the land of the jalkars in suit; (iv) in the suit jalkars in both the touzis Nos. 199 and 486, no right or interest in the sub-soil or embankment of the jalkars was created either in favour of the predecessors in interest of the present Plaintiffs or in their own favour. That being so, the Plaintiffs having no right of interest in the lands, that is the sub-soil and embankment of the suit jalkars they cannot be held to be non-agricultural tenants as denned u/s 2(k) of the Act; (v) the jalkars or the right of fishery apart from the right to the sub-soil is an imihoveable property within the definition of the General Clauses Act. It is a benefit arising out of the land covered by water and, as such, it is an incorporal hereditament and a right to be exercised on the land of another. The right of fishery even without any connection with the soil may be leased out under the provisions of the Transfer of Property Act. What was demised in favour of the predecessors-in-interest of the present Plaintiffs was a mere right of fishery in respect of the suit jalkars without any right to sub-soil thereof; (vi) the right of fishing in a tidal navigable river, as also the bed of the river itself may be granted by the Government for the purposes of revenue to the private individuals to be held by them as a private property, subject of course to the right of navigation and such other rights as the public may have in the river ; (vii) a right of fishery in a public navigable river, the subsoil of which belongs to the Government, or in other words, a Government khas mahal property, is a right in relation to an estate. Therefore, from the aforesaid legal position a right of fishery, being a right in relation to an estate, is included in the definition of the word ''estate'' and has, as such, vested in the State under the provisions of the Act; (viii) a jalkar or a right of fishery, unconnected with the sub-soil, being an incorporal hereditament is a right to be exercised on-the land of another and, as such, an easement of right, it is a benefit arising out of land covered by water, that is to say, a profit a pendre and, as such, an incumbrance. The effect of notification u/s 4 of the Act has been laid down in Section 5 of the Act as quoted above. The expression in particular and without prejudice to the generality of provisions of this clause includes that the rights in fishery as well as other rights mentioned thereunder may not necessarily be a right in estates but may be a right of easement or, in other words, an incumbrance which is not protected under the Act: Saroj Kumar Bose v. Jtindra Nath Mondal (1965) 67 C.W.N. 764; (ix) the river fisheries in a non-tidal and non-navigable river but also the river fisheries in a tidal navigable riger, no matter whether the same is connected with the soil or not, have vested in the State u/s 5(1)(a)(ii) upon notification u/s 4 of the Act; (x) the plain-tiffs are not non-agricultural tenants with regard to their respective jalkars in suit and, as such, they cannot claim immunity from the vesting of their rights in respect of the same under the provisions of the Act. The jalkars involved in the suit not being tank fisheries as defined u/s 6(1)(e) of the Act, the Plaintiffs are riot entitled to derive any benefit either u/s 6(1)(e) or under the proviso to Section 6(2) of the Act and, as such, their third alternative case also proves abortive; (xi) the Plaintiffs'' rights in respect of the suit jalkars are mere river fisheries being unconnected with the sub-soil, the same being incumbrances, were wiped out under the provisions of Section 5(1)(a)(ii) of the Act, no matter whether the said river fisheries were- possessed in khas or through sub-lessees on the date of vesting; (xii) none of the alternative cases of the Plaintiffs can succeed. Their interests with regard to their respective jalkars in suit have vested in the State u/s 5(1)(a)(ii) of the Act, as such, they are not entitled to my relief whatsoever; (xiii) the issue No. (2), according to the learned Judge, requires no adjudication and the issue No. (4) is held affirmatively against the Plaintiffs and issues Nos. (3), (5), (6) and (7) are held negatively against the Plaintiffs.

We are concerned in this appeal so far as it relates to the judgment decree in suit No. 67 of 1964. The jalkar in suit No. 67 of 1964 relates to jalkar Gangapath in the river Bhagirathi as described in sch. A to the decree as jalkar Bhagirathi Gangapath within the district of Murshidabad, P.S. Raghunathganj and P.S. Suti, Subdivision Jangipur, appertaining to touzi No. 199, south of village Balkhan and Kalitola Ghat, north of the khas mahal and Dafarpur, village Kheyaghat, West of Jangipur, Lalkhan Diar and Mallapara. East of villages Rangabari, Kanpur, Beliaghata, Raghunathganj and Charka within these boundaries is situate the jalkar known as jalkar Bhagirathi Gangapath including Bhasan (area flooded). The sch. B to the decree relates to four other jalkars appertaining to touzi No. 486.

We shall first start with the expression ''estate'' in Section 2, Clause (f), read with Clause (p) of the West Bengal Estates Acquisition Act, 1953, which came into force, in West Bengal on April 5, 1955. Clause (p) of Section 2 of the Act says that the expression used in this Act and not otherwise denned have in relation to the areas to which the Bengal Tenancy Act, 1885 (VIII of 1885), applies, the same meaning as in that Act....

In the district of Murshidabad where the disputed jalkar in suit No. 67 of 1964 lies, the Bengal Tenancy Act of 1885 was in force. Estate in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, reads as follows:

''Estate'' means land included under one entry in any of the general registers of revenue'' paying lands and revenue-free lands, prepared and maintained under the law for the time being in force by the Collector of a district and includes Government khas mahals and revenue-fee lands not entered in any register.

In the definition of estate in the Bengal Tenancy Act the expression khas mahals led the learned Subordinate Judge to express himself as follows:

On a proper construction of the definition of ''estate'' in that Act as well as in the Bengal Tenancy Act as aforesaid, it becomes clear that the word ''estate'' means (1) and area of land, (2) an interest in land and (3) any right in relation to estate, e.g. an easement right. It has been seen that the Government khas mahals and revenue-free lands are also included in the definition of the word ''estate''. It has also been held in Hara Nath Ghosh v. State of West Bengal (1962) 67 C.W.N. 129 that the Government being the owner of khas mahal lands comes within the meaning of the word ''proprietor''. A proprietor is an intermediary as defined u/s 2(i) of the Act. From the aforesaid legal provisions, it becomes absolutely clear that a right of fishery in a public navigable river the sub-soil of which belongs to the Government or, in other words, in Government khas mahal, a property is a right in relation to an estate. Therefore, from the aforesaid legal position a right of fishery, being a right in relation to an estate, is included in the definition of the word ''estate'' and has| as such, vested in the State under the provisions of the Act. That being so, the said contention of the learned Advocate of the Plaintiffs is not tenable.

What is khas mahal ? Mahal means an estate, land separately assessed with the Government revenue. It is also used, in a figurative sense, as a source of revenue not derived from land, e.g. the Abkari or excise mahal. Khas means ''peculiar'', ''private'', ''own''. Thus a management of Government or, in other words, a khas mahal is an estate held by the Government standing in place of proprietor. Sometimes there is no proprietor, as in the case of waste land, or an island thrown up in a large navigable river. Sometimes there is a proprietor who has refused to accept the terms of settlement offered to him and who is allowed malikana while the estate is held khas. Estates held khas are sometimes managed by the Government through its own servants and sometimes let out in farm (ejarah). Small portions of waste land situate within the limits of permanently settled estates belong to the proprietors of such estates; but there are large tracts of waste land in Assam and other places which belong solely to the Government. There are in India, as well as in England, incorporal rights in land; but owing to much less artificial state of the law of real property, these rights, in Bengal at least, are not by any means varied or intricate. Jalkar, or the right of fishery in all large natural waters in a zemindary belongs to the Zernindary, and is usually leased out at a yearly rent. So, a khas mahal must be an estate held by the Government standing in place of the proprietor (Field, Introduction to Bengal Regulations, October 11, 1875, p. 41, 3n.)

For origin of the expression ''estate'' we shall have to look to the preamble of Regulation VIII of 1800, s. 12 and 13 (Field, ibid., p. 324). Regulation VIII of 1800 is a regulation for preparing a gsneral pargina register of lands and for certain alterations in the prescribed registers of estates paying revenue and lands exempt from the payment of revenue passed by the Governor-General in Council on July 3, 1800. For the sake of brevity we would not discuss in detail Regs. XLVIII of 1793, XIX of 1795, XIX and XXXVII of 1793, XLI and XLII of of 1795. Section XIII of Regulation VIII of 1800 reads as follows:

In Section 2, Regulation XLVIII, 1793, and Regulation XIX, 1795, prescribing a quinquennial register of estates paying revenue to Government, it is explained that "by the term ''estate'' is to be understood any land being malguzari or subject to the > payment of public revenue, for the discharge of which a separate engagement has been or may be entered into with Government." But as this definition strictly construed would exclude estate held khas in consequence of the proprietors having.declined to engage for the public assessment thereupon under the option given by the rules for the permanent settlement as well as the estates of disqualified proprietors, which by those rules and by Regulation X, 1793, were placed under the superintendence of the Court of Wards, as well as estates belonging to Government for the revenue of which no engagement may have been taken-- and it being intended that all lands paying revenue.to Government should be included in the registers of estates prescribed by Regulations XLVIII, 1793, and XIX, 1795--it is hereby further explained that by the term ''estate'' therein used is to be understood any land subject to the payment of revenue for which a separate engagement may have been executed to Government by the proprietor or by a farmer, or which may have been separately assessed with the public revenue although no engagement shall have been executed to Government, as in cases where the estate may be held khas by a sazawal or other officer on the part of Government or be managed by a sarbarahkar for the benefit of a disqualified proprietor.

It is very significant to note in s. XIII of Regulation VIII, of 1800 the following portion--

as well as estates belonging to the Government for the revenue of which no engagement may have been taken--and it being intended that all lands paying revenue to Government should be included in the registers of estates prescribed by Regs. XLVIII, 1793 and XIX, 1795--it is hereby further explained that by the term ''estate'' therein used is to be understood any land subject to the payment of revenue for which a separate engagement may have been executed to the Government by the proprietor or by a farmer, or which may have been separately assessed with the public revenue, although no engagement shall have been executed to Government as in cases where the estate may be held khas by a sazawal or other officer on the part of Government, or be managed by a sarbarahkar for the benefit of a disqualified proprietor.

Whether the estate is within or without the zemindary of a Zemindar or a proprietor it must be, assessed with public revenue. So the land possessed by a Zemindar within the zemindary or by an actual proprietor must be assessed with public revenue and, in case, no engagement shall have been executed to the Government for payment of such revenue assessed on the estate, the estate may be held khas by a sazawal or other officer on the-part of the Government (See Field, ibid, p. 324). The expression khas mahal in relation to an estate means that the estate comprising the land must be first assessed with public revenue. After such land of the estate is assessed with public revenue, the Zemindar or the proprietor, as the case may be, may not enter into engagement with the Government for payment of the assessed revenue of the estate. In such cases, the estate assessed with public revenue but in regard to which the holder for the time being has not entered into engagement with the Government for payment of revenue shall be deprived of holding the estate and the Government shall hold estate assessed with public revenue in khas through its officer. That is the meaning of the word khas mahal as used in the Bengal Tenancy Act. So, an estate of a proprietor assessed with public revenue, when held by the Government through its officer, such as the Collector, for the failure of the proprietor to enter into any engagement with the Government for payment of public revenue with which the estate of the proprietor has been assessed, is still an estate but held in khas by the Government as a khas mahal. Article II of Regulation I'' of 1793 reads as follows:

Article II--The Marquis Cornwallis, Knight of the Most Noble Order of the Garter, Governor-General in Council, now notifies to all Zemindars, independent talukdars and other actual proprietors of land paying revenue to Government, in the provinces of Bengal, Bihar and Orissa, that he has been empowered by the Honourable Court of -Directors for the affairs of the East India Company to declare the jama, which has been or may be assessed upon their lands under the Regulations above-mentioned, fixed for ever.

It shows that the jamas which has, been or may be assessed upon the'' Tands of all the Zemindars, independent talukdars and actual proprietors of land paying revenue to the Government, in the provinces of Bengal, Bihar and Orissa, under the Regulations for the settlement of public revenue of Bengal, Bihar and Orissa, passed on September 18, 1789, November 25, 17-89 and February 10, 1790, respectively, were fixed for ever. Regulation XLVIII of 1793 in s. II says:

First, the Collectors of the Land Revenue in the several zillahs are to prepare a register of all the estates in their respective zillahs of whatever denomination or description, the proprietors of which pay the public jama or revenue assessed upon their estate -immediately to Government.

[As to the meaning of the word ''estate'', Section 13, Regulation VIII of 1800.]

Field, ibid, p. 276.

This Regulation XLVIII of 1793 speaks of the quinquennial register and its maintenance. The quinquennial register falls within the rule of law that whenever a document is of a public nature and admissible in evidence, as such, an examined copy is on grounds of public convenience admissible without the production of the original: Udai Mani Debi v. Bishonath Dutt VII W.R. r. 14. Field, ibid, p. 276, s. XIII of Regulation VIII of 1800 (vide Field, ibid, p. 276) gives a further explanation what is meant by the term ''estate'' and of the expression khas mahal as occurring in the definition of ''estate'' in the Bengal Tenancy Act. Regulation VIII of 1800 was not repealed but continued upto the time when the Estates Acquisition Act, 1953, came into force (wide Field, ibid, p. 4144 and Section 2, sch. 1, Bengal Tenancy Act, 1885: A. C. Ghose''s Bengal Tenancy Act, 1943 ed;). The expression includes Government khas mahals. In the definition of ''estate'' in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, read with s. XIII of Regulation VIII of 1800 relates to such a khas mahal which must be an estate, that means, it must be assessed to public revenue. If the person in possession of the estate does not enter into any engagement with the Government for payment of such revenue the Government shall hold the estate assessed with public revenue through its officer. The expression khas mahal, as we have already pointed out in Section 3, Sub-section (4) of the Bengal Tanancy Act, 1845, relates always to the estate either assessed with public revenue payable by its holder for the time being or assessed with public revenue but made free from liability to pay the same by the holder thereof. When a private person in possession of an estate fails to enter into an engagement with the Government to pay public revenue with which the estate is assessed and under certain other specific circumstances as law provides, the Government shall hold the ''estate'' assessed with public revenue in khas. Under such a situation, an estate is called a Government estate in khas mahal. To understand the definition of ''estate'' in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, reference is always to be made to the explanation of the term ''estate'' as occurring in the Regulation as well as to the explanation of the expression khas mahal embodied in s. XIII of Regulation VIII of 1800. An ''estate'' means land included under one entry in any of the general registers of revenue-paying and revenue-free land, i.e. quinquennial register already mentioned, that shall include ''the Government khas mahals'' as explained in s. XIII of Regulation VIII of 1800 as well at p. 41 of Field''s Introduction of the Bengal Regulation, 1875 ed., already discussed.

A certified copy of the quinquennial register of the Murshidabad Collectorate, which must have been maintained upto-date regularly, meticulously and flawlessly according to the directions given in the Regulations if produced before a Court of law, would at once prove the extent of an estate assessed with public revenue in regard to which a Zemindar or a proprietor has entered into engagement, or of an estate assessed with public revenue in regard to which engagement had been entered into by a private individual for payment of such revenue but was exempted from payment of such revenue by the Government--the former is called the zamindary estate and the latter is called the lakherajdan estate and both being included within the definition of ''estate''. So, an estate assessed with land revenue which is being paid or an estate assessed with land revenue, payment of which has been exempted, come within-the expression ''an estate''. A khas mahal of the Government may include revenue-paying estate and a revenue-free estate. Both, of course, are assessed to revenue. The Government holds an estate in khas as a khas mahal on the happening of several contingencies as Regulations have already explained. But what the Government holds in khas as a mahal is an estate, as we have already explained, comprising revenue-paying and revenue-free land both assessed to revenue. While holding as a khas mahal an estate of the description just mentioned above, the Government holds such estate if it was a lakheraj. In popular phraseology the word ''estate'' is applied to the land itself, and this is the way in which it was applied in India by the first Administrators and has continued to apply down to the present day. [See Bengal Regulations, Clause (2), Section 2, Regulation XLVIII of 1793, Section 2, Regulation XIX of 1795, Section 3 Sub-section (4) of the Bengal Tenancy Act, 1885, and Section 2(f)(p) of the Estates Acquisition Act]. In order to appreciate that real significance of the expression ''estate'' in the laws of land tenure of Bengal the expression ''Zemindar'' is also to be understood. In the three provinces of Bengal, Bihar and Orissa, at the commencement of the British rule, there was a class of persons called Zemindars as to whose position and rights there was then and has ever since been greatest doubt and discussion. It has been always doubtful if their position and rights could ever be kept on exact definition. The Bengal Zemindars were the persons who collected the revenue from cultivators and other subordinate holders and were responsible for paying it into the Government treasury. The office of the Zemindar was utilised by Muhammedan Subhadars for collection of revenue. Zemindary in Bengal was heriditary proprietary right of soil very similar, if not identical, with an Englishman''s right in his estate. With the Permanent Settlement we find two types of estates, lakheraj or revenue-free tenures and zemindary tenures. This lakheraj tenure may be generally described by saying that it possesses all the advantage of a zemindary tenure. A zemindary tenure is an absolute right of proprietorship in the soil subject to payment of a fixed amount of revenue to the. Government. If this revenue falls into arrear, the estate may be put up to sale. The purchaser acquires the estate free from all encumbrances created since the time of Permanent Settlement and obtains statutory title thereto. In Section 1 of Act VIII of 1868, an estate means any land or share in land occupying a separate number in the Government register of the revenue-paying estate. This definition of ''estate,'' however, underwent a little change in the Bengal Tenancy Act, 1885. A Zemindar is entitled to rent for all lands lying within the limits of his zemindary and the right of fishing and other incorporal rights are included in his proprietorship. Thus an estate may be a lakheraj estate or a zemindary estate. The lakheraj estate and the zemindary estate thus entered into the definition of an estate in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, within which a ''Government khas mahal'' is included, being thus an estate. We shall thereafter discuss another implication of the expression khas mahal in another context iii this judgment. So, the expression ''estate'' in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, and Sections 4, 5, 5A, 6 and 10 of the Estates Acquisition Act, 1953, had originated from the concept of ''estate'' fully defined and explained in the Regulations, we have discussed in detail, and the fundamental concept of estate since the time of Regulations right up to the present day has remained constant with a little variation as we have already noticed. Now, the most fundamental question in this appeal is whether the disputed jalkar Gangapath in the public navigable river Bhagguruttee with its bed, stream, right of fishing (jalkar) and navigation therein could ever from...and formed an estate as it is understood in law since the time of the Regulations right up to the time when the Estates Acquisition Act came into force.

Rennell in his Memoir of a Map of Hindoostan for the Mogul Empire, 1792 ed., made available to us through the generous courtsey of Hon''ble S.K. Mukherjee J. of the Calcutta High Court, who maintains a collection of rare and ancient reference books, at p. 339 says:

About 220 miles from the sea commences the head of the - delta of the Ganges. The two westernmost branches named Cossim Bazar and Jallinghy rivers units, and form what is afterwards named the Hooghly river, which is the part of Calcutta and they are only branches of Ganges commonly navigated by ships. The Cossim Bazar river is almost dry from October to May but swells up during the rainy season.

This Cossim Bazar river is the river Bhagguruttee. From the confluence of the river Cossim Bazar and Jallinghy the river Ganges flows to the south in the Bay of Bengal and is known as the river Hooghly. This Cossim Bazar river flowing up to the confluence of that river with Jallinghy bears the name Bhagguruttee which flows from the north to the south in the Bay of Bengal, and from the point of confluence. with the river Jallinghy, this Cossim Bazar river alias Bhagguruttee takes the name of river Hooghly flowing to the south into the Bay of Bengal. This river Bhagguruttee within which the disputed jalkar appertains was in 1792 a public navigable river and was so in 1865 and has also been found to be a public navigable river by the learned Subordinate Judge who decided the suit now in appeal. We have been greatly helped by a Division Bench decision of this Court in the case of Maharanee Odhiranee Narain Koomaree v. The Nawab Nazim of Bengal (1865) IV W.R. (Civil Rulings) 41 C.U. by Trevor and G. Campbell, JJ. The Plaintiff in the suit claimed a ground which the Defendant had used to land passengers from the passengers. The Judge in the Court below declared the land to be that of the Plaintiffs and granted a perpetual injunction against the use of it. The learned Hon''ble Judges'' observation, while reversing the decision of the Judge below, is that the Bhagguruttee is a public nevigable stream, it (i.e. suit land) is a part of the river bed and, as such, public property, The river Bhagguruttee is still now a public navigable river and the jalkar in suit No. 67 is, therefore, in a public navigable river. In G. Bagram v. The Collector of Bhullooa Southerland W.R. (1864) CR 243 two points were decided by a Division Bench of this Court, viz. (i) where the exclusive jalkar right in a navigable river is set up against the ordinary rights of the State and the community, it must be established by clear and strong proof; (ii) evidence of possession and enjoyment fox a series of years is of itself, if unanswered, cogent evidence of title. As many as five appeals were heard, one of them was of Bagram. The Plaintiffs of all those cases claimed exclusive right of fishery in a certain navigable river, and the cause in each suit was that the Plaintiffs had been unlawfully dispossessed by the officer of the Government of his jalkar rights. In other words, he had been disturbed in the exercise of those rights and deprived of the profits arising from them. Their Lordships Morgan and Shumboonath Pandit JJ. speaking through Morgan J observed:

It is settled that the beds or channels of navigable rivers are ordinarily the property of the Government. Subject to the right of navigation and such other rights as the public have to the use of navigable rivers, those rivers and the soil over which they flow belong to the State. [Doedem Seebrikristo v. E. I. Company, (1856) 6 MIA 267, S.D.R. 1859, p. 1377, Regulation XIII of 1825] The julkar right alone is claimed. This right may, it seems, exist as private property. What was once common to all or was the property of the State, may become the exclusive property of individuals. But when such an exclusive right is set up against the ordinary rights of the State and the community, it requires to be established by clear and strong proof.

In Bagram''s Appeal No. 495 of 1863 (5) the several jalkars in a navigable river was claimed by Bagram in the suit as having had been included in the Government settlement of his zemindary and had always been in his possession. Old settlement papers of the Collector did not contain any mention of ''jalkar right''. There was the oral evidence of the fishermen who deposed of having exercised their calling in the1 rivers for very many years on payment of rent to the Zemindars. The Plaintiffs established possession of the jalkar prior to 1860 when the Collector made a settlement of jalkar mahal with a farmer. Previous to such Collector''s attempted settlement of the jalkar mahal with a farmer, the Plaintiff Bagram was in possession in ] 842 of the jalkar as appeared from the proceedings of the assessment of the jalkar which was then commenced and afterwards relinquished in 1860, the Collector notified the intention of the Government to make a settlement of the jalkar mahal and the Plaintiffs produced evidence in support o� his claim thereto. After investigation the Collector and the Commissioner, on appeal, disallowed the claim and -a temporary settlement having been completed with a third party the Plaintiff instituted the suit to question the validity of proceedings by which he had been dispossessed. The Court held that the Collector''s proceeding was ultra vires. The Court found that at least during the period prior to 1842 right upto 1860 the jalkar in the navigable river had been possessed by Bagram, the Plaintiff-Appellant, although the Plaintiff had not taken settlement of the jalkar in the navigable river which along with the bed of the river and the stream belonged to the State and to none else. This High Court in Bagram''s case (Supra) found that the Collector''s exercise of powers under the Regulations was illegal and without jurisdiction and restored possession of Bagram in the jalkar. But it is crystal clear from this judgment that the jalkar in a navigable river could not ordinarily form a part of any ''estate'' as understood since the time of the Permanent Settlement and even now understood under the West Bengal Estates Acquisition Act. Simply because Bagram possessed the jalkar by force or otherwise for a number of years, he had the right to be restored to possession of the jalkar $ as the Collector, that means the State had no legal right under the colour of powers exercised under the Regulations to dispossess Bagram from his possession of the jalkar in the navigable river which, however, was the property of the State of which no settlement had been taken by Bagram.

The two decisions which are of very ancient authority of the Division Bench of this Court clearly establish that since before and after the Permanent Settlement the navigable rivers in Bengal, now West Bengal, including the river Bhagguruttee, have been the State''s properties in its eminent domain, i.e. Crown right, and could never be an estate or an estate held in khas as a rriahah or, in other words, as a khas mahal estate. There is, however, an exception which we would notice in the case of 18 CWN 1217 (Privy Council) where the jalkar in a navigable river was included within the permanently settled pargana, existing as a jalkar mahal within the pargana from before the decennial settlement. The bed of the navigable river Bhagguruttee, its stream, the right of fishing in its stream and navigation in the stream have ever since belonged to the State or as a matter of that to the public. The navigable rivers in Bengal, except in Srinalh''s case (6), since before the Permanent Settlement and after, had never formed part of any estate and could not, therefore, bean estate within the concept of an estate as understood since the time of Regulations right up to the promulgation of the Estates Acquisition Act, 1953. The Government could or can lease out, not as a part of the estate or as an estate, as understood in terms of the Regulations and the law existing uptil now, the right of fishing, i.e. jalkar, in any of the navigable rivers in Bengal, now West Bengal, to any private individual since such jalkar in the navigable rivers of West Bengal which since before and after the Permanent Settlement belongs exclusively to the State, can be leased out to any individual by the State and by none else on an engagement governed by the Crown Grant Act, now States Grants Act, 1895. But, it would not in such a case be an engagement with a Zemindar or an actual proprietor of the land, assessed with public revenue, as forming an estate. Since before the Permanent Settlement and after, except in Srinath''s case (Supra), public navigable rivers in Bengal have always been the property of the State with its bed and stream including fishing right and it did not and could not form part of any estate as understood in law. Either by adverse possession extending beyond 60 years, before 1963, or under a specific grant, a private individual may claim to have acquired a fishing right or jalkar in the State''s property in a public navigable river in Bengal, now West Bengal. Such leasehold fishery right which is nothing but a profit a pendre is a benefit arising out of the land, i.e. the bed of the public navigable river which never could forrrt an estate as it is to be understood in law since the time of the Permanent Settlement. A jalkar in a public navigable river, being a profit a pendre arising out of the land, relates to such land which could never form part of an estate as understood in law. So, the jalkar, in the present case, is a profit a pendre arising out of the land, i.e. the bed of river Bhagguruttee which could not and did not constitute an estate as law understands it. A jalkar grant in a navigable river in West Bengal in favour of whomsoever made by the Government could never from a touzi which means under the Regulation already discussed an account of revenue-paying or revenue-free estate, both being assessed, to revenue. The expression ''touzi 199'' of Murshidabad Collectorate in relation to the jalkar now in dispute cannot mean that the jalkar in dispute ever formed part of an estate as understood in law. The expression ''touzi'' was loosely used. Since the days of Regulation I of 1793 a jalkar in a'' public navigable river like Bhagguruttee in the Murshidabad district is not a jalkar within large natural waters'' lying within a zemindary of a Zemindar as Field explained in his Introduction to'' Bengal Regulation (p. 41) nor it is a fishery within Section 5, Clause (a)(ii) or a tank fishery within Section 6(1)(e) and explanation thereto of the Estates Acquisition Act. The expression touzi should not be confused either with the expression ''estate'' or with the expression zemindary. Touzi means account of an estate, and each account of the estate in a zemindary must bear a number as entered into the quinquennial register (See Regulation XLVIII, 1793, preamble, and the several sections thereof and Regulation VIII of 1800).

The disputed several jalkars in the river Bhagguruttee are within a public navigable river, the bed, stream and the fishing right in it, since before 1793 and after 1793 and right upto the promulgation of the Estates Acquisition Act, could not on any stretch of imagination form part of any zemindarj of an ''estate'' as law understands within the scope of the relevant Regulations and the Bengal Tenancy Act. The expression jalkar cannot be in law used in regard to any right of fishery in a public navigable river like the Bhagguruttee. Field (ibid, p. 41) says:

Jalkar, or the right of fishery in all large natural waters in a zemindary ''belongs to the Zemindar.

Two significant expressions (a) large natural water and (b) zemindary are to be comprehended ''large natural water'' would not include ''public navigable river'' which is a class by itself. Zemindary, as Field says (ibid, p. 78, note 2), the words zemindary derived from zamin-- land and dar--- a holder or possessor. Zemindary means the office of a Zemindar, a tract of land held by him and for which he is liable, whatever the nature of his holding, to pay revenue to the Government, land assessed to revenue but freed from liability of payment of rent by the Government is an ''estate'' commonly known as lakherajdary. Zemindary, therefore, relates to land assessed with public revenue for which the holder is liable to pay revenue directly under the engagement to the Government. The jalkar refers to fishing right in a large natural water but not fishing rights in a navigable river. The navigable river, like Bhagguruttee in the present case, had been declared by a Division Bench decision of this Court already referred to, to be a public navigable river since before the Regulation I of 1793 and is continuing to be the same even now-Such a public property could never be private property of a Zemindar or an actual proprietor within the ambit of the provisions of Articles III to VII of Regulation I of 1793, Permanent Settlement Regulations. So the expression jalkar cannot be used strictly in respect of any fishing right in a public navigable river to be included within an estate as understood since before and after the Permanent Settlement right upto the present day. It relates to all large natural waters in a zemindary which means property in land including the reservoir of large natural water appertaing to the Zemindars. Private proprietor and right of property in land and the reservoir of large natural water thus making up the property within the estate of the zemindary as understood since before and after the Permanent Settlement right up to the present day. We have already referred to Section 13 of Regulation VIII of ] 800 in which with reference to the relative provisions in Regulation I of 1793 and the Regulations succeeding it in a series, the expression ''estate'' has been explained as defined in Section 2 of Regulation XLVIII of 1793 and Regulation XIX of 1795. An estate, since before the Permanent Settlement and, thereafter, upto the present day must be understood as relating to any land being malguzari or subject to payment of public revenue for which a separate engagement has been or, may be entered into with the Government by a private individual. Barring certain exceptional cases, which we shall notice hereafter, the bed of a public navigable river, its stream, the fishing and navigation rights therein belonged since before and after the Permanent Settlement exclusively to the people, i.e. to the State, and continued to be so right up to the time when the Estates Acquisition Act, 1953, came into force on and from April 15, 1955. The State could settle the fishing right in a public navigable river under a grant to a private individual. So long as a specific grant of fishing right in a public navigable river taken by an individual from the State is not established by a strict proof or such grant, the fishing right in a public navigable river must be held to be belonging to the State in its right of the crown, i.e. sovereign right. We are now concerned with the jalkar in dispute in the public navigable river Bhagguruttee in the present case and we find that such jalkar since the days of the Regulations right up to the present day has never been an estate or khas mahal as understood according to the relevant provisions of the Regulations and the laws as obtaining in West Bengal uptil now. The learned Subordinate Judge failed to notice that the expression ''includes Government khas Mahals'' in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, is rentable only to ''estate'' which means land included under one entry in any of the general registers of revenue-paying land and revenue-free land maintained by the Collector of a district as well as a lakheraj or revenue-free land not entered in any register of the Collector. The effect of inclusion of Government khas mahals in the definition of ''estate'' in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, is that the tenants on Government estates are exactly on the same footing as those of ordinary zemindary estate excepting as regards the certificate procedure: Midnapore Zemindary Co. Ltd. v. The Secretcuy of State (1938) 43 C.W.N. 57 (75), Mitter and Sen JJ. The Government is the proprietor in respect of khas mahals, which are estates, but is not a proprietor in respect of the khas mahals which are not estates in regard to the Government property held in its sovereign right. The Government is not holding an estate and is not, therefore, a proprietor of an ''estate''. In regard to a public navigable river including its bed, stream, right of fishing and navigation therein in West Bengal has ordinarily been the State''s property in its sovereign right and, as such, does not come within the definition of ''estate'' in Sub-section (4) of Section 3 of the Bengal Tenancy Act, 1885. Even if it is loosely expressed as that the Government holds a khas mahal in regard to a public navigable river with its bed, stream, right of fishing and navigation therein, it does not hold it as an estate and, as such, as a proprietor of an estate but holds it in its sovereign right popularly but termed as Government khas mahals.

We have already observed that ''estate'' and ''Government estate'' in khas mahals have been fully defined and explained in s. XIII of Regulation VIII of 1800. So, in our view, a Government khas mahal in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, must appertain to and comprise an ''estate'' as law understands it. A public navigable river with its bed, stream, right of fishing and navigation therein, unless constitutes an estate, would not come within the expression ''includes Government khas mahals'' in the definition of ''estate'' in Sub-section (4) of Section 3 of the Bengal Tenancy Act, 1885. The bed of a public navigable river, its stream, fishing right therein and right of navigation through it, therefore, did not ordinarily form part of any estate since before and after the Regulations right up to the present day. Regulation XI of 1825 was passed by the Governor-General in Council on May 26, 1825, for declaring the Rules to be observed in determining claims to lands gained by alluvion or by dereliction of a river or the sea. Section 4 first [Field, ibid, p. 583] provides,

when land may be gained by gradual accession, whether from the recess of a river or of the sea, it shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed.

In Section 4, third clause, Regulation XI of 1825 [Field, ibid, p. 586] provisions have been made for char or island that may be thrown" up in a large and navigable river (the end of which is not the property of an individual) or in the sea. Such char or island, according to the established usage,'' shall be at the disposal of the Government when the channel between such island and the shore be fordable. In Section 4, Clause (4) of Regulation XI of 1825 [Field, ibid, p. 590] it is provided that in small and shallow rivers, the beds of which with the jalkar (right of fishery) may have been heretofore recognised as the property of individuals, any sand bank or char that may be thrown up shall, as hitherto, belong to the proprietor of the bed of the river, subject to the provisions stated in the first clause of Section 4.

Thus, cls. (3) and (4) of Section 4 of Regulation XI of 1825 clearly bring Out the distinction as to whom belongs the bed of the river, the stream and the fishing right in case of large and navigable rivers and in case of small and shallow rivers respectively. In case of large and navigable rivers, the property in the beds, streams and right of fishing and navigation in such rivers do not belong to an individual but to the people, i.e. the State, while the beds of small and shallow rivers with the jalkar therein have been recognised as the property of individual. In other words, the beds of small and shallow river with the jalkar rights therein form an estate of a private individual while the beds, the streams of the public navigable river and the fishing rights and rights of navigation therein belong not to an individual but to the State and never constitute an estate as understood since before the time of the Regulations right up to the present day. The two noticeable expressions are: "large navigable rivers, the bed of which is not the property of an individual" in Section 4, third clause, and "shallow river bed of which with the [altar (right of fishery) may have, hitherto, been recognised as property of individual" in Section 4, fourth clause, in Regulation XI of 1825. The property of an individual must, therefore, be an estate while the property of the State held in sovereign right can never be'' an ''estate'' khas mahal t as the Regulations defined, which definition has come within Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, includes an estate but does not include any property held by the Government in its sovereign right since it cannot be an estate. The beds of public navigable rivers, their streams, the fishing and navigation rights therein form the property of the Government in its sovereign right but an estate within Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885. Since the Permanent Settlement and after the State''s property in large and navigable rivers, their streams, right of fishing and navigation therein had never been included, exception is in Srinath''s case (1914) 18 C.W.N. 1217 P.C., within any permanently settled estate as understood in terms of the Regulations and the laws even now existing in the State of West Bengal. An estate must be either revenue-paying or revenue-free, and a khas mahal u/s 3, Sub-section (4) of the Bengal Tenancy Act must be an estate assessed with public revenue but made free by the Government from the liability of payment of such revenue or assessed with revenue for payment of which no engagement was taken by a "private individual or assessed with revenue for payment of which a private individual too an engagement from the State but ultimately turned out to be a disqualified proprietor. On the happening of either of those contingencies, the Government takes possession of such an estate and holds it in khas popularly known as an estate in khas mahal. An estate, therefore, must be first assessed to revenue with the liability to pay the revenue or without liability to pay the revenue, the liability having had been exempted from by the Government. But the property, heldin sovereign-right by the Government from before the Permanent Settlement and after in large navigable rivers, their streams, beds, right of fishing and navigation therein and possessed by the Government did not come within the pale of the Permanent Settlement, Regulation I of 1793 and the successive stream of Regulations coming thereafter. Accordingly, estate, as understood since the Permanent Settlement, right up to the present day in legal parlance, does not generally include the bed of a large navigable river, its stream, right of fishing and navigation therein. The State of West Bengal does not hold an estate in its property in large navigable rivers flowing through West Bengal, the bed of which, the stream of which, the fishing and navigation right therein belong exclusively to the State in its sovereign right and do not form part of an estate as defined in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, and Section 2, cls. (f) and (p) of the West Bengal Estates Acquisition Act, 1953. It would appear from Regulation I of 1793, which came into force on and from March 22, 1793, that the jama which has been or may have been assessed upon the lands of all Zemindars, independent talukdars and other actual proprietors of land paying revenue to the Government in the provinces of Bengal, Bihar and Orissa, would remain fixed for ever. So, the Permanent Settlement covered also lands in Orissa. Raja of Parikud held ''an estate'' a settled area. Such an estate of the Raja of Parikud is an estate as the Regulation VIII of 1800, Section XIII referred to above, had explained, in other words, the estate of the Raja of Parikud was assessed permanently to revenue payable to the State of Orissa, and while he was holding such estate paying revenue to the State of Orissa within the permanently settled area of the State, the Estates Abolition Act, 1951 (Orissa I of 1952), came into force on February 9, 1952. By a notification coming into force on September 24, 1952, the estate of the Raja of Parikud vested under the Act in the State of Orissa.

The Chilka lake is situate in what was once the estate of the Raja of Parikud. In Ananda Behera and Another Vs. The State of Orissa and Another, their Lordships of the Supreme Court observed:

There can be no doubt that the lake is immovable property and that it formed part of the Raja''s estate. As such, it vested in the State of Orissa when, the notification was issued under the Act and with it vested the right that all owners of land have to bar access to their land and the right to regulate, control and sell the fisheries on it.

The above observation of their Lordships of the Supreme Court speaks volume. Orissa Act was for abolition of estates and the West Bengal Act is also for abolition of estates. The Permanent Settlement, Regulation I of 1793, created estates in Bengal, Bihar and Orissa. By Orissa Act, Permanent Settlement and with it estates have been abolished in the State of Orissa. By the West Bengal Act, the Permanent Settlement and estates-within West Bengal have been abolished. Therefore, what is common to both Orissa and West Bengal is an estate created since the Permanent Settlement and continuing'' upto the promulgation of the respective Abolition Acts. Estates in Orissa and estates in West Bengal coming within Regulation I of 1793 and the stream of Regulations following thereafter cannot have different legal connotations. The Chilka lake appertained to the estate of the Raja. But the navigable river Bhagguruttee, its stream, its bed, the right of fishing and navigation therein never formed an estate and did not constitute an estate as we have explained heretofore in this judgment. The present case is just the reverse of Ananda Behera and Another Vs. The State of Orissa and Another, . In Ananda Behara''s case the ex-proprietor Raja had settled the fishing right in Chilka lake which formed part of his estate. When the Orissa Estates Abolition Act, 1951, came into force, the estate of the Raja of Parikud, within which lay the Chilka lake with its jalkar, vested in the State of Orissa. But, in the present case, the river Bhagguruttee with its bed, stream, fishing and navigation right therein belonged always to the State in its rights of the Crown and never formed an estate. So far back as in 1864, this High Court in the Maharanee Odhiranee Narain Koomaree''s case (1865) IV W.R. (cr) 41 C.U. held that the river Bhagguruttee was a public navigable river belonging to the Government but not to any individual. It is not the case of the State Government that the State Government leased or licensed out the fishing right in Bhagguruttee belonging exclusively to it to any person. The river Bhagguruttee with the fishing right therein never formed part of an estate at the time of Permanent Settlement, but the Government could lease out the fishing right in Bhagguruttee which belonged to it exclusively in sovereign right. Such leasehold interest in the fishing right in Bhagguruttee could never be an estate as we have explained in this judgment. It would be a grant governed by the Crown Grant, now the State Grant Act. The interest created in favour of the lease in the fishing right in Bhagguruttee river may at best be considered as a licence. The Plaintiff-Appellant''s claim to have taken pattani and dar-pattani interest in the jalkar right in dispute in river Bhagguruttee from the alleged holder proprietor of touzi No. 199, pargana Gankar of the Murshidabad Collectorate. The State Government, therefore, affirms that the disputed jalkar appertained to an estate and, as such, the Plaintiff-Appellant is an intermediary in regard to such jalkar which has vested in the State of West Bengal under the Estates Acquisition Act, 1953. Neither the Plaintiff-Appellant nor the State Government, nor the Plaintiff-Appellant''s less of can create an ''estate'' in the jalkar in river Bhagguruttee, a public navigable river, when law does not accept that in a large navigable river like Bhagguruttee a jalkar therein would in law form an estate. The Government in its sovereign rights, as we have already pointed out, could have leased out or rather could have licensed out of the Plaintiff-Appellant''s so-called lessor the, jalkar right in dispute in the river Bhagguruttee. But that is not the case. If by production of the quinquennial register the State Government would have shown that since the Permanent Settlement under Regulation I of 1793, within the zemindary estate of pargana Gankar bearing touzi No. 199 of the Murshidabad Collectorate, the several jalkars in the river Bhagguruttee including the jalhar, now in dispute, were included thereby forming an estate, certainly the Plaintiff-Appellant''s jalkar now in dispute, would have stood vested in the State of West Bengal under the provisions of the Estates Acquisition Act, 1953. But that "procedure was not followed by the State Government in the present case. In our view, from before the Permanent Settlement and after, the large navigable river Bhagguruttee never formed an estate as we'' have explained in this judgment. The State Government has its property in the river Bhagguruttee in its sovereign right which includes its bed, stream, fishing and navigation right therein. We shall presume that the State of West Bengal must have maintained in the Murshidabad Collectorate up-to-date quinquennial register of all revenue-paying and revenue-free estates including khas mahals within the zillah of Murshidabad. The quinquennial register would have shown in serial No. 199 the revenue assessed on the estate in the zemindary of the pargana Gankar as well as the extent of the Zemindar of pargana Gankar. If within the extent of the boundary of the estate of the pargana Gankar, bearing touzi No. 199 as appearing in the quinquennial register and mouzawari register of the Murshidabad Collectorate, the jalkar in dispute in the public river Bhagguruttee was shown included in such estate of the pargana, we would have been amazed to see such an entry. Neither the State Government nor the Plaintiff-Appellant produced the certified copy of the quinquennial register of the Murshidabad Collectorate containing the entries relating the entries relating to the zemindary estate in the pargana Gankar bearing touzi No. 199 of such Collectorate. So, we shall presume that if such register would have been produced it would not have supported the State''s contention that the river Bhaggurutee, a public navigable river, with its bed, stream, right of fishing and navigation therein,, was assessed, to public revenue in 1793 and appertained to and included within, since 1793, the zemindary estate of pargana Gankar bearing touzi No. 199 of the Murshidabad Collectorate. The State of West Bengal, before the West Bengal Estates Acquisition Act came into force, could not be imagined to have had buried in the deep water of Bhagguruttee, Regulation I of 1793, and the stream of Regulations following thereafter as those we have considered in this judgment. Two Division Bench decisions of this High Court of the years 1864 and 1865, already referred to in this judgment, which had never been overruled had established that the two navigable rivers in Bengal involved in the said two decisions never formed an estate since the Permanent Settlement. Bhagguruttee, as in the present case, came up for consideration before this Court in 1864. The learned Subordinate Judge in the present case, in our view, a century after 1864 rightly held that the jalkar in dispute lay within Bhagguruttee, a public navigable river. Bhagguruttee has been judicially found by this Court in 1864 to be a public navigable river and Rosenell found it to be so in 1792. The State of West Bengal did not adduce any evidence to show that Bhagguruttee was not a public navigable river and had not been so when the Permanent Settlement came into operation followed by the Regulations we have already discussed. Following the principles laid down in Ananda Behera and Another Vs. The State of Orissa and Another, we -can safely presume that the jalkar in the river Bhagguruttee, a public navigable river in West Bengal, with its bed, stream and right of fishing and navigation therein since before and after the Permanent Settlement right up to April 15, 1955, constituted the property of the State in its sovereign right and did not constitute an estate as law understands and as we have explained in this judgment. Therefore, nobody could acquire in the jalkar in Bhagguruttee either any proprietory right or any pattani or any dar-pattani right or any right of any denomination that would be conceived as obtaining under the laws of land tenure relating to Bengal, now West Bengal, since the Permanent Settlement. The property in river Bhagguruttee, its bed, stream, right of fishing and navigation there belong even now exclusively to the State in its sovereign right and never formed part of an estate as law relating to land tenure in Bengal, now West Bengal, understands it. Had it been a case that the State Government had leased out the jalkar in dispute in river Bhagguruttee after the Permanent Settlement with the holder of touzi No. 199, i.e. the Zemindar of the pargana Gankar, that the leasehold interest in the jalkar would not have been an estate as law understands it within the ambit of the West Bengal Estates Acquisition Act, 1953, but that is not the case. The learned Subordinate Judge, in our view, erred in holding that the jalkar in dispute in the river Bhagguruttee constituted an estate held in khas as a khas mahal by the State Government as defined in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885. The State Government failed to prove that within the estate of the zemindary in pargana Gankar bearing touzi No. 199, the jalkar mahal in dispute had been included when the revenue of the zemindary estate in pargana Gankar had been permanently settled with the then Zemindar under the provisions of Regulation I of 1793. The expression khas mahal as occurring in Sub-section (4) of Section 3 of the Bengal Tenancy Act, 1885, could not be comprehended by the learned Subordinate Judge while holding that the jalkar in dispute appertained to an estate held by the State Government as a khas mahal. Accordingly, the learned Subordinate Judge misdirected himself in holding that the jalkar in dispute in the river Bhagguruttee constituted an ''estate'' held as a khas mahal by the State Government. Section 2, Clause (h) of the West Bengal Estates Acquisition Act, 1953, says:

''Incumbrance'' in relation to estates and rights of intermediaries therein does not include the rights of a raiyat or of an under-raiyat or of a non-agricultural tenant but shall, except in the case, of land allowed to be retained by an intermediary under the provisions of Section 6, includes all rights or interests of whatever nature belonging to intermediaries or other persons which relate to lands comprised in estates or to the produce thereof.

The learned Subordinate Judge held that the right of fishing in the jalkar Gangapath in the river Bhagguruttee is an encumbrance and that encumbrance relates to an estate. Therefore, Section 4, Sub-section (1) of the West Bengal Estates Acquisition Act, 1953, following the notification of vesting caused the fishing right in the jalkar, an encumbrance in the estate, to be vested in the "State of West Bengal. The learned Subordinate Judge was clearly wrong. The river Bhagguruttee, as we have said, together with the right of fishing therein did never constitute an ''estate'', as we have explained. Therefore, the right of fishing in the river Bhagguruttee as claimed by the Plaintiff-Appellant could never form an ''encumbrance'' within Clause (h) of Section 2 of the West Bengal Estates Acquisition Act, 1953. Therefore, the Plaintiff-Appellant''s right of fishing, as claimed, which did not appertain to any estate is not an encumbrance within Section 2, Clause (8) of the West Bengal Estates Acquisition Act. The river Bhagguruttee with its bed, stream, right of fishing and navigation therein have had not constituted an estate within the meaning of Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, and Section 2, cls. (h) and (p) of the West Bengal Estates Acquisition Act. The notification u/s 4, Sub-section (1) of the West Bengal Estates Acquisition Act, 1953, did not cause the vesting of any estate or encumbrance in an estate in the jalkar in dispute in the river Bhagguruttee in the State of West Bengal. Independently of the Estates Acquisition Act and independently of any law relating to land tenure in West Bengal, from before the Permanent Settlement and after right up to the present day the sovereign right of-ownership in regard to the rawer Bhagguruttee its bed, stream, right of fishing and nagivation therein has been in the State and had never formed any part of an estate. We wonder how the sovereign right of property of the State in the river Bhagguruttee could come within the ambit of any of the provisions of the West Bengal Estates Acquisition Act, 1953. The Collector of Murshibadad, according to the procedure established by law, may get back the fishing right in dispute ousting the Plaintiff-Appellant therefrom, but it cannot take recourse to the provisions of the Estates Acquisition Act to oust the Plaintiff-Appellant of his possession therein, the disputed jalkar y continuing for more than 50 years. In Bagram''s case Southerland W.R. (1864) CR 243 already reviewed in this judgment, Bagram claimed fishing right in a large navigable river in Backergunge of Bengal against the Collector of Bhullooa. From 1842 to 1860 Bagram was "in undisputed possession of jalkar rights in the large navigable river of Backergunge. The Collector of Bhullooa made several attempts to lease out the jalkar right to farmers but without success, and during such attempts of leasing out of the jalkar in dispute, then being possessed by Bagram, the Collector initiated proceeding under the Regulations for ousting Bagram from his possession and enjoyment of the jalkar. Bagram went in appeal before the Commissioner who confirmed the Collector''s order. Then Bagram sued for restoration of his possession in the jalkar since the Collector by illegal proceedings ousted Bagram from the jalkar. The Division Bench of this Court held that Bagram had no legal right in the jalkar so far his title thereto was concerned, but he was in possession of the jalkar and that the Collector had no right to take recourse to law of Regulations which was in no manner applicable to oust Bagram from his possession of the jalkar in dispute. Bagram sued, the Government for restoration of the jalkar. The High Court decreed the appeal ordering Bagram to be restored to possession of jalkar although the jalkar was not taken settlement of by Bagram from the Government. He forcibly possessed the jalkar and was forcibly dispossessed by the Government. But still his possession in the jalkar "was restored. In the present case the Plaintiff-Appellants have been in possession of the jalkar, but the jalkar does not appertain to an estate. The Government is not a proprietor in respect of the jalkar in dispute since Bhagguruttee, within which the jalkar in dispute is claimed, never formed an estate as we have explained. Therefore, the Collector of Murshidabad acquired no jurisdiction to take any step u/s 10 of the West Bengal Estates Acquisition Act for ousting the Plaintiff-Appellant from his possession in the jalkar in dispute. The Government may, if so advised, approach a Court of law for such legal remedies as law provides if the Government wants the Plaintiff-Appellant to be ousted from his possession of the jalkar in dispute. Like the Collector of Bhullooa in Bagram''s case Southerland W.R. (1864) CR 243 the Collector of Murshidabad cannot take recourse to "the provisions of Section 10 of the West Bengal Estates Acquisition Act, however illegal may have been the possession of the Plaintiff-Appellant in the jalkar in dispute lying within the large navigable public river Bhagguruttee.

The learned Subordinate Judge referring to the decision in the ease of Hara Nath Ghose v. State of West Bengal (1962) 67 C.W.N. 129 held that the Government being the owner of has mahal land came within the meaning of the word ''proprietor'' and, as such, the Plaintiff''s'' jalkar in dispute is an intermediary u/s 2(1) of the West Bengal Estates Acquisition Act, 1953. We have considered that decision of the Single Bench of this Court. In Hara Natft''s case (1962) 67 C.W.N. 129 certain lands in Jalpaiguri in Western Dooars were taken on transfer by Hara Nath, the Petitioner, from his mother. The State of West Bengal invoked Section 5A of the West Bengal Estates Acquisition Act, 1953, challenging the transfer as being not bona fide. In that case, the Petitioner contended that the land transferred appertained to Government khas mahal and that it was outside the purview of the West Bengal Estates Acquisition Act, 1953. In Hara Nath''s case (1962) 67 C.W.N. 129 estate as defined in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, was considered and it was held that the statutory definition of estate in Bengal Tenancy Act made it clear that the estate includes Government khas mahals and revenue-free lands; Accordingly, it was held that the land transferred by Hara Nath''s mother to Hara Nath appertained to an estate. Hara Nath was an intermediary. The definition of ''estate'' in the Bengal Tenancy Act, 1885, would not apply to all parts of Jalpaiguri Western Dooars. The eastern Jalpaiguri, formerly a part of Bhutan, was annexed to India in 1866. It was otherwise known as Bhutan or Western Dooars. The notification No. 963-TR dated November 5, 1898, would show that the Bengal Tenancy Act extended to Jalpaiguri except to. Western Dooars. By the notification, Western Dooars or Bhutan was exempted from the operation of the Bengal Tenancy Act, 1885. By a subsequent notification No. 14007-LR dated December 1, 1933, the Bengal Tenancy Act, 1885, was extended to Jalpaiguri Western Dooars barring the area of tea plantation in Western Dooars that had been before and after the notification granted or leased out by the Government to any person or the company under an instrument in writing for the cultivation of tea or for the reclamation of the land under the arable waste land rules. In Hara Nath''s case (1962) 67 C.W.N. 129 the lands situated in Western Dooars fell within the exception as in notification No. 14007 dated December 1, 1933. Therefore, in that case definition of ''estate'' as in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, could not be lawfully applied. Bhutan or as a matter of that Western Dooars came to India in 1865 and did not form part of any permanently settled estate under Regulation I of 1793. So, in Hara Nath''s case (1962) 67 C.W.N. 129, the land was to be governed by arable waste land rules and the land did not form part of an ''estate'' as defined in Section 3, Sub-section (4) of the Bengal Tenancy Act. The expression khas mahals in Section 3, Sub-section (4) of the Bengal Tenancy Act relates to land assessed with revenue, that means land within a zemindary paying, revenue or a lakherajdari revenue assesed but made free from liability to pay the same situated in the permanently settled districts of Bengal. We have already pointed out referring to p. 41 of Field''s Introduction to Bengal Regulations that one of the meanings of the expression khas mahals relates to large tracts of arable waste lands in Assam and other places which belonged solely to the Government in its sovereign right. Portions of these lands are reserved for forests used for the growth of firewood and similar other purposes. Other portions are sold in lots to suit the convenience of purchaser who obtained a full hereditary and transferable proprietory property free from all demand on account of land revenue. Within this limited meaning of the expression khas mahal come Government forests, areas of tea plantations in Western Dooars of Jalpaiguri district, Sundarban area or delta of the Ganges which supplies Calcutta with fire-wood, or in other words, all lands held by the State formerely in the right of the Crown and now in its sovereign right as the Republic of India. So, the decision in Ham Nath''s case (1962) 67 C.W.N. 129, so far as khas mahal is concerned, cannot relate to an ''estate'' as defined in Section 3, Sub-section (4) of the Bengal Tenancy Act. The expression includes Government khas mahals in the definition of ''estate'' in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, would not include lands in Western Dooars in Jalpaiguri district. So, lands in Western Dooars in Jalpaiguri district, as in Hara Nath''s case (Supra) held by Government in khas in its sovereign right as a khas mahal would not include as ''estate'' but much lands as Field has explained (Field''s Introduction, ibid, p.''41), held by the Government as khas mahal belong to the Government of the State in its sovereign right but not as a ''proprietor'' of an ''estate'' since such lands held by the Government as khas mahal would not come within the inclusive definition of ''estate'' as in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885.

In a Division Bench decision, rendered in the case of the State of West Bengal Vs. Birendra Nath Basunia and Others, Chakravartti G.J. dealt with a lease of a jote granted by the Government situated in the Western Dooars in Jalpaiguri district. The lease was received from time to time and the last renewal took place on April 1, 1935, when it was renewed for a period of 20 years ending in March 31, 1955. The renewal was in form ''F''. In 1950, after serious and widespread disturbances in Eastern Pakistan, a very large number of persons migrated from that country into the State of West Bengal. The Government considered it their duty to come to the assistance of these displaced persons and to settle them. Land was required for that purpose. The Government decided that they would find the necessary land by exercising their right of resumption in respect of jotes which had been settled under leases reserving to them such right. Accordingly, proceedings were started for the resumption of the lands of jote No. 475 and other similar jotes, wholly or in part. The Deputy Commissioner of Darjeeling issued a notice on the holder of the jote by which he was informed of the Government''s intention to resume 54-43 acres of land out of the total area of the jote for the rehabilitation of refugees from West Bengal and called upon him to prefer the objection, i.e. to the holder of the jote, if any, before February 28, 1.951. The Respondents in appeal registered their objection. The Deputy Commissioner concluded the resumption proceedings by order dated September 30, 1951. He directed resumption of only the remaining 35-23 acres of the jote which were fallow land held by the Respondents in khas and ordered taking possession of the resumed part of the jote. Upon coming to know of the Deputy Commissioner''s order the Respondents moved this High Court under Article 226 of the Constitution and obtained a Rule on the State of West Bengal. The Rule was made absolute in a limited form which directed to the State and the Deputy Commissioner to forbear from giving effect to the orders complained of so far as those orders provided for possession to be assumed summarily arid without recourse to a Court of law. The State of West Bengal preferred an appeal against the order of the single Judge. That appeal was heard by the Division Bench presided over by Chakravartti C.J. Chakravarti C.J. observed:

It is clear from the history of the lands constituting the Western Dooars that they were originally foreign territories and were ceded by the State to which they belonged to the British Crown. Thereupon they were ''annexed to the Crown in 1865''. The lands are not, therefore, held by the State in the ordinary right of a Zemindar, but are State property of the same class as the Crown lands of. England, it is true that the affidavit-in-opposition filed on behalf of the State referred to the lands as lying ''within the Government khas mahal'', but it is obvious that the expression was loosely used. No misdescription in an affidavit can take away the true character of the lands or impose upon them a character which they do not possess.

His Lordship Chakravartti C.J. then observed referring to the decision in the case of Jnanendra Nath Nanda v. Jadunath Banerjee (1937) 42 C.W.N. 81,

that the effect of Section 3 of the Crown Grants Act was to exclude the operation of not merely the Transfer of Property Act but of all laws.

and explained the decision of the Privy Council in Jagannath Baksh Singh (Thakur) v. The United Provinces (1946) 50 C.W.N. 674.

Now, from the observations of the aforesaid Division Bench decision, which we most respectfully follow and accept, it would appear that the lands in Western, Dooars, as in Hara Nath''s case (1962) 67 C.W.N. 129, belong to the State in its sovereign right like the Crown lands of England and even if the State call those lands, as lying ''within the Government khas mahals'' that expression losely used would not constitute those lands an estate within Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885. Similarly, the river Bhagguruttee, a public navigable river, with its bed. stream, right of fishing and navigation therein including the disputed jalkar in this appeal belong to the State of West Bengal in its sovereign right and cannot come within the expression ''including Government khas mahals'' in relation to an estate as defined by Sub-section (4) of Section 3 of the Bengal Tenancy Act, 1885. In our view, therefore, the disputed jalkar in river Bhagguruttee in this appeal never belonged to the Government of the State of West Bengal and its predecessor Government in any right other than in its sovereign right and could never appertain to an estate as defined in Section 3, Sub-section (4) of the Bengal Tenancy Act, 1885, and it does not come within the expression ''including Government khas mahals'' in Sub-section (4) of Section 3 of the Bengal Tenancy Act, 1885. In our view, the expression ''including Government khas mahals'' in the definition of ''estate'' in Sub-section (4) of Section 3 of the Bengal Tenancy Act, 1885, would exclude lands, held as khas mahals by the Government not in its proprietory right in an estate but in its sovereign right, but would include only those lands held by the Government as khas mahals constituting an estate as defined by Sub-section (4) of Section 3 of the Bengal Tenancy Act, 1885, as we have already explained in this judgment.

The public navigable river in West Bengal or as a matter of that in undivided Bengal with their beds, streams, right of fishing and navigation therein never constituted estate in the permanently'' settled district. Such rivers, since before and after the Permanent Settlement, have been the properties of the State in its sovereign rights and had not been included in estate; owned and held by the State in khas as its khas mahal. But those rivers have been owned and held by the Government in its sovereign rights popularly known as khas mahals but not included in estates as defined in Sub-section (4) of Section 3 of the Bengal Tenancy Act, 1885. The expression ''estates'' and the expression ''estates in khas mahals'' have been defined and explained in a series of Regulations which we have already discussed and we accept those definitions and explanations of the said two expressions as appearing in the Regulations to explain the definition of ''estate'' as defined in Sub-section (4) of Section 3 of the Bengal Tenancy Act, 1885, which includes Government estates in khas mahals in the sense we have interpreted. The learned Subordinate Judge failed to note that the law from before and after the Permanent Settlement has not recognised that the Government holds an estate or a khas mahal in an estate comprising public navigable rivers, meaning its bed, stream, right of fishing (jalkar) and navigation therein. Therefore, the jalkar in Bhagguruttee, now in dispute, in the eye of law is neither an ''estate'' nor a ''khas mahal'' in an estate of the State of West Bengal. The decision in Hara Nath''s case (1962) 67 C.W.N. 129 does not therefore support the learned Judge''s conclusion. We most respectfully disagree with the decision in Hara Nath''s case in view of the Division Bench decision in State of West Bengal Vs. Birendra Nath Basunia and Others, which we follow.

The learned Subordinate Judge while relying on the decision in Saroj Kumar Bose v. Jatindra Nath Mondal (1963) 67 C.W.N. 764 held that a " fishery, i.e. jalkar, is an incumbrance within the meaning of the Estates Acquisition Act and that as it is an incumbrance, not protected by the Act, the Plaintiff-Appellant''s jalkar'' in dispute vested in the State of West Bengal, Fishery is an incumbrance within Section 2, Clause (h) of the West Bengal Estates Acquisition Act, 1953, if it is some burden created by acts or omission of a person--human being holding an estate in relation to his estate or rights therein. The expression ''incumbrance'' lies in its relation to an ''estate'', incumbrance must, therefore, relate to the estate. A shallow river with its bed and jalkar in such shallow river in Bengal, Bihar and Grissa has been included in an estate permanently settled since the Permanent Settlement right up to the present day. But large navigable rivers, their beds, streams, right of fishing in them as well as navigation therein since before and after the Permanent Settlement right up to the present day, have never been included in an estate or in an estate held in khas as a mahal by the State but have been the State''s property in its sovereign right, i.e. eminent domain. So, West Bengal Estates Acquisition Act does not, therefore, apply to anything relating to a public navigable river like Bhagguruttee, now in dispute, in this appeal. The right of fishing in river Bhagguruttee is not an incumbrance in relation to an estate nor it is a profit a pendre arising out of the land of an estate. The Government is not a ''proprietor'' of an estate in regard to river Bhagguruttee. It holds a property in the navigable public river Bhagguruttee in its sovereign right but not as a proprietor and could never have held it as proprietor of an estate as understood since before and after the Permanent Settlement. The fishery, now in dispute, as we have found, never appertained to an estate, and the State owns the fishery in dispute in"its sovereign right. But the Plaintiff-Appellant claimed to have acquired, as it were, pattani and dar-pattani right in the fishery in dispute under leases taken from the proprietor of pargana Gankar bearing touzi No. 199 of the Murshidabad Collectorate. The State, therefore, asserts that as the fishery in dispute appertained to an ''estate'' and that as the Plaintiff-Appellant was an ''intermediary'' in regard to the fishery in dispute, the Plaintiff''s intermediary interest in the fishery vested in the State under the provisions of the West Bengal Estates Acquisition Act, 1953, which is an expropriatory legislation. Before Sections 4, 5, 6 and 10 of the Act could be invoked by the State, the State is required to establish that the [alkar in dispute constituted an ''estate'' of the pargana Gankar bearing touzi No. 199 of the Murshidabad Collectorate by production of the certified copy of the upto-date quinquennial register. Therefore, the fishery in dispute cannot be held to be an incumbrance in relation to an estate, nor can it be held a profit a pendre, i.e. a benefit arising out of the land, i.e. bed of the river Bhagguruttee which with its bed, stream, right of fishing and navigation therein has been the property of the State in its right of the Crown, now the sovereign Republic of India, that could not form part of an ''estate'' of a zemindary. That it formed part of an ''estate'' was required to be established by the State of West Bengal only by production of the certified copy of the quinquennial register which the State did not. Mysteriously, Bagram claimed possession in the jalkar in a navigable river in the district of Backergunge. He had set up a claim in the jalkar on the basis of a settlement from the Government. He failed to establish it. For a number of years when Bagram was continuing to exercise his acts of possession in the jalkar, the Government attempted to lease out the jalkar only to several farmers, but failed. We have already observed that by a subterfuge of a proceeding under the Regulations, Bagram was made to appear as if he was ousted from the possession of jalkar. We have already pointed out that High Court restored possession of Bagram in the jalkar on the strength of his possessory right only although Bagram did not acquire any title to the jalkar as a lessee from the Government or as appertaining to his estate. This High Court found that the bed of that navigable river, its stream and the right of fishing in Backergunge district belonged exclusively to the Government in its sovereign right but not as a proprietor of an estate. In Maharanee Odhiranee Narain Koomeree''s case (1865) IV W.R. (Civil Rulings) 41 C.U., which we have already discussed, this High Court declared that in 1864 the river Bhagguruttee in the district of Murshidabad was a public navigable river and the property of the State was in the rights of Crown. So, we are not required to make any further research as to how the Plaintiff''s predecessors and the Plaintiffs could come to enjoy the jalkar in dispute mysteriously as pattanidars and dar-pattanidars under the documents of leases and could possess the jalhar now in dispute as appertaining to touzi No. 199 of the Murshidabad Collectorate. Let that mystery remain where it lies. But the law of land tenures in Bengal, now West Bengal, from before the Permanent Settlement and after and right up to coming into force of the West Bengal Estates Acquisition Act would not recognise the State of West Bengal''s any right under the order of the Estates Acquisition Act in regard to the jalkar in dispute. The Defendant-Respondent the State of West Bengal may have its legal remedies against the Plaintiff-Appellant. But the State as in the Collector of Bhullooa in Bagram''s case Southerland W.R. (1864) CR 243 cannot be permitted to circumvent the law, we have explained, however illegal and unauthorised the Plaintiffs-Appellants'' claim for possession in jalkar in dispute in river Bhagguruttee and possession therein may be.

We need not trouble ourselves in this appeal as to whether the jalkar in dispute is a tank fishery or a beel and with all those decisions from which the learned Subordinate Judge found support in his conclusion. The decisions relating to a beel, a tank fishery relied upon by the learned Subordinate Judge stand on the established fact that the fishery, either ''tank'' or beel, lies within an ''estate''. But in the present appeal we have found that the fishery in dispute, i.e. the jalkar Gangapath, did never nor could ever lie within an ''estate''. The learned Subordinate Judge noticed that the public navigable river Bhagguruttee in West Bengal was the property of the State in its sovereign rights. But he failed to note that the said public navigable river in West Bengal did not from before and after the Permanent Settlement constitute an estate. From before and after the Permanent Settlement the State has been holding its property in sovereign rights in. large navigable rivers in Bengal, Bihar and Orissa meaning thereby that the bed of the rivers, their streams, right of fishing and navigation therein have been the exclusive property of the State in its sovereign rights and of none else. The State, however, can lease out the right of fishing in public navigable livers to individuals and can also control the public right of navigation in such rivers. The learned Subordinate Judge quoted the decision of 18 CWN 1217 (Privy Council) . We have already observed that the case of Srinath is an exception since the jalkar in Srinath''s case has its origin in and within an estate. Before the Privy Council Raja Srinath and others were the Appellants. Their Lordships of the Privy Council discussed the evidence as to the origin of the Plaintiff''s rights in the jalkar based on documents (6). Char Mukundia was the name of the Plaintiff Srinath''s zemindary pargana. The Plaintiffs produced (i) ah ekjaf hast bud in respect of the pargana Char Mukundia for the year 1790 which showed that within it was then included the mahal jalkar, (ii) a hakikat chauhaddibandi of the lands and jama of that pargana for the year 1795 showed that the name of the jalkar mahal was the river Balabanta and beel Baor specified boundaries of which the Kole Churi of Alipur alone could then be traced by name, (iii) dowl jama kabuliyats of 1793 and 1799, specifying the amount of the dowl jama of the jalkar; and (iv) an ismmnavisi mauzawari of 1821 mentioning the jalkar in the river Balabanta as a mauza of pargana Char Mukundia, (y) a robokari of the Court of the Collector of Faridpur dated January 11, 1861, by which the Government recognised that this jalkar had been included as a mahal in the zemindary pargana Char Mukundia (formerly touzi No. 180 in the Dacca Collectorate and now 400 in that of Faridpur), since before the decennial settlement. Holding that the evidence of" the Government grant of an exclusive fishery in navigable waters ought to be conclusive and clear their Lordships observed in 18 CWN 1217 (Privy Council) upon considering the documentary evidence referred to above,

but they are of opinion that, insofar as such evidence can now be expected to be forthcoming as to particular giants more than a century old, the evidence in the present case was sufficient to show that the competent authority--the Government of India in right of the Crown--did actually grant to the Plaintiffs'' predecessors in title, or settle with them so as in effect to grant jalkar right of several fishery in certain of the-waters of the portion of the Ganges system.

Therefore, in 18 CWN 1217 (Privy Council) the jalkar mahal was in existence before 1790, that means, during the decennial settlement as appertaining to Char Mukundia, the name- of the Plaintiff Srinath''s zemindary pargana. After the Permanent Settlement in 1793, the hakikat chauhaddibandi of the lands and jamas of that pargana for the year 1795 included the jalkar mahal in question. In the doivl kabuliyats of 1793 and 1799 specifying the amount of the dowl jama of the jalkar could be found in issumnavisi mauzatuari of 1821, the jalkar in question was entered as a mauza of pargana Char Mukundia. Those ancient documents, according to their Lordships of the Privy Council, were found sufficient to show that the competent authority the Government of India in right of the Crown did actually grant to the'' Plaintiff''s predecessors-in-title or settle with them so as in effect to grant a jalkar right of several fisheries in certain waters of the portion of the Ganges system in, question. Therefore, in Srinath Roy''s case from before the Permanent Settlement the jalkar in several fishery in a tributary of Padma, a navigable river of the Ganges system, was included within the pargana Char Mukundia which inclusive of the jalkar mahal bore a fixed jama when the Permanent Settlement came into force in 1793 and became, therefore, an ''estate'' as law understands. In the present case, the Government took this defence that the Plaintiffs had acquired title in pattani ''and dar-pattani right in the jalkar in dispute appertaining to touzi No. 199 of the Murshidabad Collectorate which was ''estate'' and that, as such, their rights in the suit jalkars were right of ''intermediaries'' in the ''estate'' and that such rights in the jalkar in dispute being an incumbrance vested in the State u/s 5(a)(ii) of the Act free from all ''encumbrances''. In 18 CWN 1217 (Privy Council) within the pargana Char Mukundia several fisheries in navigable river Balabanta and beel Baor, a tributary of the large navigable river Padma of the Ganges system of rivers, were included. River Balabanta and the beel Baor, though tributaries of Padma, were navigable rivers. Those several fisheries in river Balabanta and beel Baor had been included within the pargana Char Mukundia from before the decennial settlement. The jama of the pargana Char Mukundia, including several fisheries in river Balabanta and beel Baor was fixed for ever when the Permanent Settlement, Regulation I of 1793, came into force. The Government of India, as their Lordships of the Privy Council observed,

in right of the Crown did actually grant to Srinath''s predecessors in title or settle with them so as in effect to grant a jalkar right of several fishery.

When pargana Char Mukundia with the right of fishery in the large navigable river, flowing through such pargana, was taken engagement of by the predecessors-in-title of Srinath under the Permanent Settlement of 1793 at a jama fixed for ever, it was definitely proved in 1 18 CWN 1217 (Privy Council) which, we have already observed is an exceptional case, that the several jalkars in a public navigable river flowing through and included within Char Mukundia, formed an ''estate'' at a fixed jama when the Permanent Settlement came into operation. The Government of India in the right of the Crown settled Char Mukundia at a fixed jama under the Permanent Settlement Regulations with the predecessors-in-title of Srinath and within navigable river Balabanta and beel Baor which were also granted as part of the ''estate'' in the pargana Char Mukundia by the Government of India when the jama of pargana Char Mukundia, including the jalkar mahal, was fixed for ever under Regulation I of 1793. Therefore, in 18 CWN 1217 (Privy Council) the several jalkars in a public navigable river appertained to an ''estate'', as understood since the time of Permanent Settlement under Regulation I of 1793 right up to the present day, coming within the definition of ''estate'' in Sub-section (4) of Section 3 of the Bengal Tenancy Act, 1885. But, in the present appeal the State, of West Bengal in its written statement asserts that the jalkar in dispute in the public navigable river Bhagguruttee constituted an ''estate'' wherefor pattani and dar-pattani rights in the jalkar acquired by the Plaintiff-Appellant, being within an ''estate'' bearing touzi No. 199 of the Murshidabad Collectorate, constituted an ''intermediary'' and that the Plaintiff-Appellant''s intermediary interest in the jalkar in dispute as an incumbrance vested in the State of West Bengal free from such incumbrance. We have already pointed out that the State of West Bengal failed to prove that the river Bhagguruttee; a public navigable river, with its bed, stream, right of fishing and navigation therein constituted an ''estate'' in the zemindary of pargana Gankar bearing touzi No. 199 of the Murshidabad Collectorate which the State could have proved only by production of the certified copy of the quinquennial register as law requires it. Section 10 of the West Bengal Estates Acquisition Act, 1953, can be invoked against the Plaintiff-Appellant if it is proved that the jalkar in dispute actually appertained to and comprised in an ''estate'' in the zemindary of pargana. Gankar since the time of Permanent Settlement. We have already observed that since the Permanent Settlement a public navigable river like Bhagguruttee, within which the Plaintiff-Appellants claimed their jalkar rights in dispute, with its bed, stream, right of fishing and navigation therein has been the property of the State in its sovereign rights. As in 18 CWN 1217 (Privy Council) it was proved that within the pargana Char Mukundia was included the jalkar mahal in river Balabanta and beel Baor and the jama of pargana Char Mukundia with the jalkar mahal was fixed for ever under Regulation I of 1793. So, in the present case, the State of West Bengal could have by production of the certified copy of the quinquennial register proved that within the estate of the zemindary of pargana Gankar bearing touzi No. 199 of the Murshidabad Collectorate, the several fisheries in the public navigable river Bhagguruttee, now in dispute, were included as existing from before the decennial settlement and that when the jama of the zemindary estate in pargana Gankar was fixed for ever with'' the coming in of the Permanent Settlement, Regulation I of 1793, the several fisheries, i.e. jalkar in the public navigable river Bhagguruttee in dispute had been included as a jalkar mahal of the zemindary estate in the pargana Gankar we have already discussed in the Division Bench judgment of this Court in Maharanee Odhiranee Narain Koomaree''s case (1865) IV W.R. (CR) 41 C.U., Bhagguruttee has been found to be a public navigable river with its bed, stream, right of- fishing and navigation therein a public property, i.e. of the Crown, now the State. Public has the right of fishing as well as of navigation unless the Government in its right of the Crown, i.e. of the State, makes a grant of fishing right to private individual which the Crown, now the State, could and now can do in its sovereign right. In Maharanee Odhiranee Narain Koomaree''s case (1865) 4 W.R. (CR) 41 C.U. the Nawab Nazim of Bengal claimed as a riparian proprietor, the ground that had formed opposite his estate in the river Bhagguluttte. The Court below called it an accretion but found the piece of land was still then in the bed of the river which was found to be in water in 1863 and which would be again submerged as soon as the river rose in the wet season. Their Lordships observed:

Till the land rises beyond ordinary high water mark in such a way as to become fit for cultivation, it is part of the river bed and, as such, public property. And when it does so rise as to become private property, the public will still be entitled to the same access to the river which was enjoyed before the new land was formed on the bank.

The Defendant Nawab Nazim of Bengal took the wrongful plea that the land was the private property of one Waris Ali.-But, the Amaen, in fact, reported that the land was public property, that means, the land in dispute appertaining to the bed of the river Bhagguruttee did not constitute a property of any private person that belonged to the Government in its right of the Crown. So, the bed of the river Bhagguruttee, the right of fishing as well as navigation therein in 1865 did not belong to any private person as appertaining to his ''estate''. In Srinattii case Supra from before the decennial settlement the Char Mukundia pargana included a mahal jalkar in the navigable river, Balabanta, a tributary of Padma or Ganges or the river that was flowing through the said pargana. In 1795'', the hakikat chauhaddibandi of the lands and jamas of that pargana showed the name of the jalkar mahal in dispute in Srinath''s case. Doiul kabuliyats of 1793 and 1795 specified the amount of dowl jama of the jalkar. We shall presume, as we have already observed, that the Collectorate of Murshidabad must have maintained the upto-date quinquennial register as well as mauzawari register. But such registers were not produced and proved before (the Court below. In Jagadindra Nath Roy v. Secretary of State for India I.L.R, (1902) Cal, 291 (300): 30 I.A, 44 the question was whether pieces of land in the bed of the navigable river Brahmaputra appertaining to centain mauzas were included in the Permanent Settlement of 1793. Their Lordships of the: Privy Council observed:

In every case the question what lands are included in the Permanent Settlement of 1793 is a question of fact and not of law.

This question may or may not be satisfactorily proved by subsequent'' survey maps. The onus of proving that any particular lands were included in the Permanent Settlement of 1793, in other words, the onus of proving that the Government revenue then fixed was assessed upon any particular lands is clearly on those who affirm that such was the case. In (that case the Appellant Jagadindra Nath Roy''s counsel relying on the thak and survey maps of 1851-53 argued before their Lordships of the Board of Privy Council that those maps ought to have been held as sufficient proof that what was the part of the bed of Brahmaputra in those years was included in the Permanent Settlement of 1793. Their Lordships observed in 1902 in Jagadindra''''s case (Supra (301) The Brahmaputra was then, as it is now, a public navigable river, and if the lands in question were then part of its bed, as they were in 1851 and apparently also in 1838, it is difficult to suppose and it ought not to be assumed that those lands were included in the lands permanently assessed in 1793.

We most respectfully accept those observations and apply the same in regard to the disputed jalkar in the river Bhagguruttee, a public navigable river. In Jlagadindra Nath Roy''s case (Supra) in 1902 it was found by their Lordships of the Privy Council that the bed of the public navigable river Brahmaputra did not appertain to the ''estate'' of the predecessor of Jagadindra when permanently settled in 1793. �En Maharanee Odhiranee Narain. Koomeree''s case (Supra), already discussed, this Court in 1865 found that the public navigable river Bhagguruttee, meaning its bed, stream, right of fishing and navigation therein, belonged to the Government in its right of the Crown. So, it was incumbent upon the. State of West Bengal to prove that the jalkar in dispute was included in the estate of the zemindary of pargana Gankar in 1793 with the then holder of the zemindary of such pargana. But theState of West Bengal did not do so,

In Sarat Chandra Roy v. Kalaram Malo ILR (1905) Cal. 1349 by Ghose and Geidt JJ. the Appellant claimed as the owners of a certain fishery ordinarily known as Gorantra, and Dignao jalkar having the exclusive right to fish in the waters of Gorantra, a navigable river, and its branches within the boundaries of the taluk permanently ''settled with their predecessors. The Defendant denied that the Plaintiff had any right to the jalkar and alleged that Gorantra being a navigable river the right of fishery therein belonged to the Government and the public had every right to catch fish in that river until settled by the Government with some private party. A proceeding of the year 1860 before the Collector of Mymeosingh, in which the Plaintiffs'' predecessors were panties, seemed to have had been taken for assessment of revenue upon the Gorantra river Having regard to a certain parwana of the Revenue Court of Ashar 5, 1198 B.S. and a sanad of Raja Ram Krishna Roy dated Bhadra 27, 1198 B.S. the Collector held that the jalkar of pargana Jainshye, in dispute, was included in the Permanent Settlement. Therefore, no further revenue was assessed upon the said fiver. The Collector also referred to the evidence, one of them being a settlement proceeding of the Collector of Tipperah, from which he concluded that though there fwas nothing to show an express grant by the Government of the jalkar right to the Plaintiff or to his predecessor in the river Gorantra, yet such grant might well be presumed. The High Court observed that though there was no evidence of an express granjt of the jalkar by the Government it might well be that for long continued user and from the orders passed by the Revenue authorities from time to time in respect of the jalkar, a grant might be presumed. In Sarat Chandra Roy''s case (Supra) the jalkar in the navigable river and in its branches lay within the boundaries of the taluk permanently settled with Sarat Roy''s predecessor. The jalkar of the pargana Jainshye was included in the Permanent Settlement and, therefore, no further revenue could be assessed upon the river in question. High Court held that from long continued iser and from the orders passed by the Revenue authority from time to time in respect of the jalkar a grant in respect of such jalkar might be presumed. So, in Sarat Roy''s case the Government records showed that the Government accepted that the jalkar of the pargana Jainshye was included by implication in the grant of Permanent Settlement. This fact along with the long continued user of the jalkar by the Plaintiff-Appellant raised a presumption that the jalkar in the public navigable river was granted as a part of his esjtate to the Plaintiff''s predecessors by the Government.

In the Full Bench decision in Hari Das Mai v. Mahomed Jaki ILR (1885) Cal, 434 the jalkar in dispuite was in the river Meghna. The Plaintiff Mahomed Jaki and others claimed that they held the jalkar in question as tenants from the proprietor under a ejara lease for four years i.e. 1287 to 1290 B.S. and that the Defendants were their under-tenants of (the fishery. The jalkar was a mahal in the river Meghna, a tidal navigable river, which was said to have been settled by the Government with the Plaintiffs'' lessors'' for a great many years past at a sadar rent of Rs. 287 and let out by them from time to time in ejara. The first pbirt for consideration of the Full Bench was: (i) Whether exclusive rights of fishery in tidal navigable rivers can be granted to private individuals or to certain classes of persons by the Crown. The Bengal Board of Revenue on November 6, 1868, declared that the Government was a mere trustee on behalf o(f the public in respect of tidal rivers and that the exclusive right of fishery in such rivers could not be granted to private individuals. By a resolution of the Government of Bengal dated April 29, 1869, it was decided |that it was impossible for the Government to make over the fishery in a itidal river to any individual to the exclusion of the public generally, and that the Government was to take care, as the guardian of the public interest, that it was not monopolised by any single individual or party. Garth C.J. in Hari Das Mai''s case (Supra) observed:

I am of opinion that the Crown, has power in this country to grant such rights (jalkar in tidal navigable rivers in Bengal). His Lordship further observed:

I take it to be clear that the Crown has the power of making settlements or grants for purposes of revenue of all unsettled and unappropriated lands. And I can see no good reason why they should not have the same power of making settlements of jalkar rights and of lands covered by water as of lands not covered by water.

His Lordship further observed:

It is also undoubtedly a fact that the grantees of these jalkar rights have, for a long series of years, enjoyed the profits of them to the exclusion of the general public and have been in the habit of sub-letting them by ejara and other leases.

His Lordship further observed:

In the absence of such exclusive grants by the Crown the public have always been allowed to fish in tidal navigable rivers without let or hindrance, and it is probable that this may be the case.

His Lordship was pleased to commend the policy of the Government of Bengal followed since the year 1868 of making no further settlements of jalkar with private persons as a wise and beneficent policy, but observed:

On the other hand, it would seem very unjust to deprive the Zemindars of any rights which they may have previously acquired under such settlement.

The second question before the Full Bench was:

(2) Whether, in the absence of proof of title by prescription, the rights to such a fishery can be established without proof of a direct grant from the Government.

His Lordship Garth C.J. observed (13):

As to this question, I think it sufficient to say that in the generality of cases, and certainly in the particular cases with which we are now dealing, the right to the fishery cannot be established without proof of a grant from the Government.

In Hari Das Mai''s case (Supra) Full Bench decided that in tidal navigable rivers of Bengal Crown had the exclusive right to grant jalkar in such rivers to provide individuals. It was further decided that the claim for a right of the fishery in navigable river by a private individual cannot be established without proof of a grant from the Government. In Hari Das Mai''s case the jalhar did not appertain to an estate of the zemindary of the pargana in question. The right of fishing in Meghna belonged exclusively to the Crown in its sovereign rights which the Crown could settle for the purpose of revenue to any private individual as it did with the Zemindar of the pargana by a grant specifically made in that behalf. From the Zemindar of the pargana (who got under a special grant the jalkar in Meghna made by the Government) Mahomed Jaki and others took exam of such jalkars. So, in the Full Bench decision in Han Das Mai''s case (Supra) it was definitely established that the right of fishing in a tidal navigable river or as a matter of that in a public navigable river in Bengal helonged exclusively to the Government in its rights of the Crown and that only under a grant from the Government of such right of fishing specifically made by the Government in favour of the individual, such individual can claim jalkar under the grant in the public, tidal and navigable rivers in Bengal. In the present case, the Government did not assert nor did produce any document to show that the jalkar Gangapath in dispute in the public navigable river Bhagguruttee was included within the permanently settled estate of the zemindary of the pargana Gankar bearing touzi No. 199 of the Murshidabad Collectorate. It is not the case of (the State of West Bengal that after the Permanent Settlement of the zemindary pargana Gankar, the jalkar Gangapath in the public navigable river Bhagguruttee, now in dispute, which belongs exclusively to the State in its right of the Crown was granted under a settlement to the then holder of the zemindary of the pargana Gankar and that the grantee of the jalkar being the then Zemindar of the pargana Gankar had leased out in ajara, be it pattani or dar-pattani, to the predecessors-in-interest of the Plaintiffs-Appellants. Even in that case the jalkar in dispute would not have constituted an ''estate''. It would have been a Crown grant or a State grant of the jalkar (Co the then holder of the zemindary of the pargana governed by the Grown Grants and- now State Grants Act on the principle of law established in the case of Basuni''a (Supra) which we have already noticed and discussed. In Hari Das Mai''s case ILR (1885) Cal. 434 the Government made a specific grant of the jalkar in river Meghna to the Zemindar of the pargana and the said Zemindar having taken the lease of the jalkar under a grant from the Government had settled the jalkar in ejara with Mohamed Jaki and others. In Sarat Roy''s case (Supra) the jalkar of the pargana Jainshye was included in the Permanent Settlement and proceeding of the Collector of Mymensingh and parwana of the Revenue Court of Ashar 5, 1198 B-S. and a. sanad of Raja Ram Krishna Roy and a settlement proceeding the Collector of Tipperah led the Government to conclude that although there was nothing to show an express grant by the Government of the jalkar right to the Plaintiff or to his predecessor in the river Gorant''ra, yet such implied grant might well be presumed. So, the jalkar in Sarat Roy''s case originated in a grant from the Government which was established by implication in absence of any express grant. In Jagadindra Roy''s case (Supra) it was definitely held that the bed of the river Brahmaputra, meaning its stream and by implication, the right of fishing and navigation therein, belonged to the Government in its right of the Crown and did not form part of the zemindary of Jagadindra''s predecessors settled under Regulation I of 1793. In case of Bhagguruttee, a public navigable river, this Court found in 1865 that its bed, stream, right of fishing and navigation therein belonged exclusively to the Government in its right of the Crown and was the property of the public but not of any private individuals and, as such, could not form an estate. In the Full Bench decision of Hari Das Mai''s case (Supra) it was observed that since 1868 the Government of Bengal made it a policy that the jalkar in public navigable rivers should not thenceforward- be settled with any private individuals. So, upto 1865, in view of the decision of this Court, the jalkar in river Bhagguruttee belonged exclusively to the public, i.e. to the Government but not to any private individuals. Between 1865 and 1868 there is no evidence that jalkar in dispute in the navigable river Bhagguruttee was settled under a grant by the Government of Bengal with the then holder of the zemindary of the pargana Gankar bearing touzi No. 199 of the Murshidabad Collectorate. After 1868 we shall not presume that to any private individual the Government by changing its policy settled the jalkar in dispute in the public navigable river Bhagguruttee which was found to be so by this Court in 1865. The Government of West Bengal does not also assert that the jalkar in dispute in the river Bhagguruttee had been settled under a grant with the Zemindar of the pargana Gankar bearing touzi No. 199 of the Murshidabad Collectorate at any time between 1865 and 1868. It is not also the case of the State of West Bengal that any time after the Permanent Settlement the jalkar in dispute in the river Bhagguruttee that belonged exclusively to the Government in the rights of the Crown had been settled under a grant with the then holder of the zemindary of the pargana, Gankar bearing touzi No. 199 of the Murshidabad Collectorate. The case of the Government of West Bengal is not that the jalkar in dispute at the time of the Permanent Settlement of the zemindary of the pargana Gankar bearing touzi No. 199 of the Murshidabad Collectorate was settled under the grant of the zemindary with the holder of the zemindary of that pargana. In view of the decision in Jagadindra''s case ILR (1902) Cal. 291: 30 I.A. 44 and the decision in Maharanee Odhiranee Narain Koomeree''s case (Supra) the State of West Bengal was to have proved positively that the navigable river Bhagguruttee with its bed, stream, right of fishing and navigation therein had been included within the grant of the zemindary of the pargana Gankar made by the Government when the revenue of the said Zemindar of the pargana including the jalkar mahal therein had been settled with the then holder of the zemindary permanently at a fixed jama under Regulation I of 1793. The State of West Bengal did not offer any evidence to establish that fact. In Srinath''s case (Supra) the several jalkarz in the river Balabanta and the heel Baor had been from before the decennial settlement included in the ''zemindary.of the pargana Char Mukundia and at the time of Permanent Settlement the jalkar mahal as a mouza in the pargana Char Mukundia was included within the zemindary of the said pargana. The onus on the State of West Bengal while enforcing expropriating provisions of the West Bengal Estates Acquisition Act, 1953, was to prove affirmatively that the jalkar in dispute in the public navigable river Bhagguruttee had been included within the zemindary of the pargana Gankar at the time of the Permanent Settlement when the jama of the said pargana with the jalkar mahal the zemindary of the pargana Gankar at the time of the Permanent settled with the then Zemindar of the pargana in 1793. The State of West Bengal, as we have already repeated, could have affirmatively proved this fact which it was their burden to prove when the jalkar in dispute lies within a public navigable river like Bhagguruttee -that the said jalkar had been included under a grant in the zemindary of the pargana Gankar when its jama was permanently settled with the jalkar in 1793 with the then Zemindar of such pargana. But the State of West Bengal, as we have already observed, did not move even to produce the certified copy of the quinquennial register and offered no explanation for non-production of such register wherefor we can safely presume that if the quinquennial register maintained upto-date by the Collectorate of Murshidabad in relation to the zemindary estate of pargana Gankar bearing touzi No. 199 of the said Collectorate would have been produced and proved it would not have shown any entry indicating that the jalkar in dispute as a jalkar mahal had been included within the estate of zevaiftdary of the pargana Gankar when the revenue of the said pargana including the jalkar in the public navigable river Bhagguruttee had been assessed permanently with the then Zemindar of such pargana in 1793.

In the case of T.S. Murugesam Pillai v. Manickavasaka Desika Gnana Sambanda Pandara Sannadhi (1917) 25 C.L.T. 589 P.C. (595) their Lordships of the Privy Council observed:

A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough, they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships'' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. The present is a good instance of this bad practice.

We have already observed that under the Regulations the Collectors of the districts are requires to maintain upto-date quinquennial registers in which entries relating to an estate and their local extents under the jurisdiction of the Collectors'' districts bearing for each an account number said to be the touzi number are to be found. A mere production of the certified copy of the quinquennial register, as we have already observed, would have established affirmatively that the jalkar in dispute in this appeal in the public navigable river Bhagguruttee appertained to and comprised in the estate of the zentindary of the pargana Gankar bearing touzi No. 199 of the Murshidabad Gollectorate, the revenue of which had been permanently settled under Regulation I of 1793 with the then holder of the estate in such zemindary of the pargana. But, as the State Government did not care to produce the certified copy of the quia quennial register and to prove it, we may usefully quote in such context and apply the observations of the Privy Council in the case of T.S. Murugesam Pillai v. Manickavasaka Desika Gnana Sambanda Pandora Sannadhi (1917) 25 C.L.T. 589 P.C. (595) which runs as follows:

The best assistance to a Court of justice would have been a scrutiny of these documents, and their Lordships feel free to conclude that if they had been by their entries confirmatory of the Defendants'' view the Defendants would have brought them into Court.

Now, we examine some of the patiani and dar-patiani leases relating to the jalkar in dispute. It is a deed of pattani executed by Jagabandhu Roy in favour of Gopal Singh. It is of the year 1268 B.S. on Falgun 21. From this document it will be found in the pargana Gankar, Gopal Singh had his, ancestral zemmdary Dihi Nazipur, the sadar Tahut whereof was recorded in Gopal Singh''s name appertaining to touzi No. 199 in the office of the local Gollectorate and within the said Dihi Nasipur mahal jalkar taraf Rouna river, and jalkar Gangapath pargana and jalkar beel Ekmata and jalkar Mandara, jalkar beel Thalia ten in number, and jalkar Aheria including Ghusi and jalkar Tek Birganj, and Daha and jalkar Chanda and Chander Dara which having issued from the said Chand was again mixed up with the jalkar river and jalkar see Nadina and jalkar Suiida Sundi including Sipi etc. which were in possession and enjoyment of Gopal Sinha. Gopal Sinha granted the several jalkars aforesaid to Jagabandhu Roy at an annual jama of R". 1.041. The office of the local Collectorate, means Murshidabad Collectorate, could produce an examinee copy the quinquennial register to show that jalkar Gangapath, now the subject-matter of this appeal, within the river Bhagguruttee a public navigable river, appertained to and comprised in the estate of Gopal Sinha within pargana. Gankar, the pargana Gankar bearing touzi No. 199. In 18 CWN 1217 (Privy Council) Srinath produced ancient documents of the Collectorate of Dacca to show that within the pargana Char Mukundia included the several jalkars in a branch of river Padma, in Balabanta and heel Baor, river which was T navigable river and that the several jalkars as a jalkar mahal appertained to and comprised in the zemindary of pargana Char Mukundia from and before the Permanent Settlement> i.e. during the decennial settlement and dowl kabuliyats of 1793 and 1795 related also to the jama of jalkar mahal of the pargana Char Mukundia, Therefore, in that case the several jalkars since the Permanent Settlement formed an estate. The State of West Bengal knew that in 1865 this High Court declared that the river Bhagguruttee was a public navigable river and was in 1865 a public property, i.e. the property of the State in the right of the Crown and did not form part of any private property, i.e. an estate.

Exhibit 13 is a deed of sale in respect of zemindary pattani and dar-pattani and nishkar mahal executed by Paresh Nath Pandey and another in favour of Dayal Chand Safui of the properties described in the schedule to Ex. 13 dated Magh 24, 1279 B.S. (February 4, 1873), the pattani jalkar Gangapath in pargana Gankar, Dihi Rampur has been described as bearing an annual jama of Rs. 145 payable to Jagabandhu Roy, pattanidar of the said mahal. It is described there in the said document that the mahal kismet appertained to touzi No. 160 of the District Collectorate of Murshidabad, pargana Chandandia in the name of which is recorded in the Collectorate touzi. of Babdulal Choudhuri. It is further described therein that the said mahal was settled with Jagabandhu Roy at a jama of Rs. 250. Exhibit 12(2) is the registered patta executed by Jagabandhu Roy in favour of Paresh Nath Pandey dated Jaistha 17, 1272, B.S. (May 31, 1865). It is a dar-pattani patta. It says that within the district of 24-Parganas there is a pargana Gankar within which is the Dihi Nasipur, the sadar Tahut whereof is recorded in the touzi No. 199 in the office of the Murshidabad Collectorate in the name of late Gopal Singh. Within the said Dihi Nasipur Jagabandhu had been enjoying and possessing as usual in pattani talukdari right the mahal jalkar taraf Pouna river and jalkar Gangapath. Paresh Nath Pandey- asked Jagabandhu Roy for settlement of the jalkar and Jagabandhu created dar-pattani in the jalbar including jalkar Gangapath at an annual jama of Rs. 1,341. The jalkar Gangapath, now in dispute, is in the public navigable river Bhagguruttee. In Ex. 11,the pattcmi deed executed by Jagabandhu Roy in favour of Gopal Singh, it is said--Within the district of Murshidabad, in pargana Gankar you have got your ancestral zemindary Dihi Nasipur the sadar Tahut whereof is recorded in your name appertaining to touzi No. 199 in the office of the local Collectorate. Included within the said Dihi are mahal jalkar taraf Pouna river and jalkar Gangapath, including Ex. 12(1), relates to a dar-pattani executed by Jagabandhu Roy in favour of Paresh Nath Pandey. Herein the pargana Gankar is described as within the district of 24-Parganas where in Ex. 11 the pargana Gankar is described as appertaining to Murshidabad district. The kobala, Ex. 13, refers to jalkar Gangapath in pargana held under the pattanidar Jagabandhu Roy as appertaining to touzi No. 160 of the district Collectorate of Murshidabad. All these undependable private documents, to which the Government was not a party, would not themselves prove that jalkar Gangapath in dispute from before the Permanent Settlement, the river Bhagguruttee, a public navigable river appertained to and composed in the zemindary estate of the pargana Gankar, and that when the revenue of the zemindary of estate of the pargana Gankar was fixed for ever under the Permanent Settlement. Regulation I of 1793 the Zemindar or the actual proprietor of the pargana Gankar had also got within such pargana included, the grant of the jalkar mahal Gangapath in the public navigable river Bhagguruttee and that the jama of the pargana, including the jalkar Gangapath, had been assessed with revenue fixed for ever as soon as the Permanent Settlement was made of the pargana with the then Zemindar or the actual proprietor of the pargana under Regulation I of 1793. No document was produced either by the Plaintiffs-Appellants or by the Defendant-Respondent State to show that after the Permanent Settlement of the zemindary of the pargana Gankar bearing touzi No. 199 of the Murshidabad Collectorate was concluded the jalkar in dispute in the public navigable river Bhagguruttee had ever been settled under a grant by the Government with the then holder of the estate in the zemindary of the pargana bearing touzi No. 199 of the Murshidabad Collectorate. The private documents referred to above passed between the Zemindar and the pattanidar and dar-pattanidar. There is no document coming from the side of the State Government to show that the Government recognised the jalkar in dispute as having had been settled with the zemindary of pargana Gankar under a grant made after the Permanent Settlement or at the time of Permanent Settlement, included within the jama of the estate of the zemindary of the pargana Gankar fixed for ever under Regulation I of 1793. So, the documents coming from the side of the Plaintiffs-Appellants as analysed above do not establish that the jalkar in dispute appertained to and compressed in an estate of the zemindary of the pargam Gankar bearing toiizi No. 199 of the Murshidabad Collectorate.

The learned Subordinate Judge failed to appreciate that the Respondent State could not establish that the jalkar in dispute in the public navigable river Bhagguruttee appertained to an estsate as understood in law and as we have explained in this judgment. In our view, the Respondent State could not establish that the jalkar in dispute appertained to an estate within the definition of ''estate'' in Sub-section (4) of Section 3 of the Bengal Tenancy Act, 1885. We also find that the jalkar in dispute having had not appertained to an estate at any time since the time of the Permanent Settlement of 1793 and having had been the property of the State in its right of the Crown does not come within the expression ''includes Government khas mahals'' as in Sub-section (4) of Section 3 of the Bengal Tenancy Act, 1885. Accordingly, in our view, none of the provisions of the: West Bengal Estates Acquisition Act, 1953, applies in relation to the jalkar now in dispute; However illegal might be the possession of the Plaintiffs-Appellants in the jalkar in dispute, the Collector of Murshidabad has no jurisdiction to apply the provisions of Section 10 of the West Bengal Estates Acquisition Act, 1953, against the Plaintiffs-Appellants in relation to the jalkar in dispute. In our view, the jalkar in dispute is not an ''estate'' nor it is a profit a pendre arising out of the land of an estate nor it is an ''incumbrance'' in an estate, nor it is a heel fishery nor a tank fishery. The jalkar in dispute Being not an estate and defined in Sub-section (4) of Section 3 of the Bengal Tenancy Act, 1885, does not come within the expression ''includes Government khas mahals in that subsection. In regard to the jalkar in dispute the Government is not a proprietor of an estate. The Government holds a property in the jalkar in dispute in its sovereign right but not as a proprietor of the estate. Intermediary has been defined by Clause (i) of Section 2 of the West Bengal Estates Acquisition Act, 1953, as:

''Intermediary'' means a proprietor, tenture-holder, under-tenure-holder or any other intermediary above araiyat or a non-agricultural tenant and includes a service tenure-holder and, in relation to mines and minerals, includes a lessee and a sub-lessee.

Section 2, Clause (j) of the Act defines non-agricultural land--''non-agricultural land'' means land other than agricultural land or other than land comprised in a forest. Section 2, Clause (k) of the Act defines non-agricultural tenant--''non-agricultural tenant'' means a tenant of non-agricultural land who holds under a proprietor, a tenure-holder, a service tenure-holder, or an under-tenura-holder. Therefore, non-agricultural tenant must hold non-agricultural land comprised in an estate as we have already explained in this judgment. As we have found that the disputed jalkai does not appertain to an estate nor is comprised within an estate, as we have explained in this judgment, no question, therefore, arises of the disputed jalkar in- possession of the Plaintiffs-Appellants being a non-agricultural tenancy held by them as non-agricultural tenants either under a proprietor or under a tenure-holder of an estate as we have explained in this judgment. Accordingly, the disputed jalkar in possession of the Plaintiffs-Appellants does not come within the definition of an intermediary in Section 2, Clause (i) of the West Bengal Estates Acquisition Act, 1953. In our view, the entire West Bengal Estates Acquisition Act, 1953, has no manner of application in relation to the jalkar in dispute. So, we hold that the Collector of Murshidabad has no jurisdiction to issue a notice u/s 10 of the Estates Acquisition Act upon the Plaintiffs-Appellants in relation to the jalkar in dispute. Accordingly, we set aside the judgment and decree passed by the learned Subordinate Judge and grant relief to the Plaintiffs to this extent that the Collector of Murshidabad shall not take recourse to any of the provisions of Section 10 of the West Bengal Estates Acquisition Act, 1953, to disturb or otherwise interfere with the possession of the Plaintiffs-Appellants in the jalkar in dispute in this appeal only.

We may observe that the decision in Ganesh Chandra Khan and Others Vs. State of West Bengal and Others, has been superseded by the Appellate Court. Against the decision in that case rendered by a Judge sitting singly in the Writ Court, there was an appeal being F.M.A. No. 12 of 1958 under Clause 15 of the Letters Patent. The appeal was disposed of by the Division Bench on February 27, 1964. The Appellate Court allowing the appeal observed:

The disputed question cannot be decided in these proceedings. It appears to us that the Appellants must be relegated to a suit. No expression of opinion either in this judgment or in the judgment appealed from will be taken to decide the rights of the parties. All points are left open.

Following the directions of the Appellate Court the Plaintiffs-Appellants filed the suits of which one came in appeal before us that we are now considering

In the result, the appeal is allowed with costs both in this Court and in the Court of the Subordinate Judge.

Amaresh Roy, J.: I agree that this appeal should be allowed with costs, but I shall briefly give my reasons for that conclusion without going into the extensive discussions on land laws covered by my Lord in his judgment just delivered.

This appeal arises out of a judgment and decree by which three title suits heard analogously by a learned Subordinate Judge were disposed of by dismissing all the three suits. For appreciating the real matter of the points raised in this appeal, history of the title or interest claimed by the Plaintiffs Appellants need be recounted and also history of the disputes that led to the filing of the suits.

Relevant facts are, one Gopal Sinha was the proprietor of zemindary interest recorded in touzi No. 199 of the Murshidabad Collectorate. Within that zemindary were several jalkars or fisheries known as Sayer jalkar mahal. In ''Falgoon 1268 B.S. corresponding to March 1862, Gopal Sinha leased in pattani right the said jalkar jnahal within touzi No. 199 with Jagabandhu Roy who executed kabuliyat at an annual jama of Rs. 1,041 in favour of Gopal Sinha. Two days after that kabuliyat Gopal Sinha died and the corresponding paita was executed by Gopal''s widow in Sravan 1269 B.S. corresponding to August 1862. That pattanidar Jagabandhu Roy settled the jalkar in touzi No. 199 in dar-pattani right with Paresh Nath Pandey in 1272 B.S., corresponding to 1865, at an annual rental of Rs. 1,34.1. Soon, thereafter, the said dar-pattani interest was purchased by Saraswati Debi, mother of Jogendra Chandra Khan, for the benefit of her minor sons including Jogendra in the benami of one of her karmacharis. She also purchased in a rent sale the jalkars in touzi No. 486 for the benefit of those minor sons in benami of another of her karmacharis. Those two karmacharis in due course executed deeds of release in favour of Saraswati Debi and her sons. Subsequently, by decree in Partition Suit No. 21 of 1915 in the Court of the Subordinate Judge of 24-Parganas and the Partition Suit No. 281 of 1926 in the Court of the Subordinate Judge of Murshidabad, the jalkars in both the touzis Nos 199 and 486 were exclusively allotted to Jogendra Chandra Khan. In 1946, Jogendra created a trust in respect of all his.properties including the jalkars. In Administration Suit No. 1019 of 1956 in the Original Side of this Court the trust created by Jogendra was separated to three trusts and thereby the Plaintiffs in each of three suits, but of which this appeal arises, were appointed trustees of three trusts so separated which together comprise all the jalkars described in schs. ''A'' and ''B'' of the plaint.

While, that is the history of the, title of the Plaintiffs (who claimed to be in. khas. possession of the; jalkars on Baisakh 1, 1362 B.S. corresponding to April 15, 1955, which is the appointed date under the Estates Acquisition Act, 1953),the history of this litigation originated when the Collector of Murshidabad within a few weeks of that appointed date issued two notices u/s 10(2) of the Estates Acquisition Act calling upon the Plaintiffs and other trustees to deliver possession of the suit jalkars. One notice (Ex. I6B) is dated May 7, 1955, and Anr. (Ex. 16) is dated June 7, 1955. Material terms of both the notices are same and are set out below:

Whereas notification No. 12540 L. Ref. Dated the 16th August, 1954. u/s 4 of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954), declaring that with effect from 1st Baisakh 1362 B.S, all estates and the rights of every intermediary in each such estate situated in the district of Murshidabad shall vest in the State free from all encumbrances has been published at page 353, part 1 of the Calcutta Gazette of the 11th November, 1954.

Now, therefore, I do hereby require you u/s 10(2) of the said Act to give up possession on the (effaced) day of Aswin of the Bengali year 1362 of the interests in your possession as specified in the schedule below to the officer empowered by me in this behalf u/s 10(3) of the said Act.

Sd. S.K. Sanyal

Collector

At the first instance, the present Plaintiffs and other trustees jointly made an application in this Court for a writ under Article 226 of the Constitution of India Rule was issued (Civil Rule 3143 of 1955) and interim order restraining the Defendant State from interfering with possession of the jalkar was made. In that proceeding under Article 226 of the Constitution of India the present Plaintiffs and other trustees contended that they were not intemediaries within the meaning of the Estates Acquisition Act. 1953. So, their interest in the jalkar had not vested in the State under that Act and, therefore, neither notice u/s 10(2) could be issued nor their possession could be interfered with by the State. Several arguments were raised before the Trial Judge (Sinha J., as his Lordship then was) in support of that contention and some of those were given up during the hearing before the learned Judge.

In that prcoceeding, the State of West Bengal contended that the Petitioners were intermediaries, the jalkar formed part of river Bhagirathi, a tidal and navigable river, and the jalkars were connected with the soil or bed of the river and were not tank fisheries and, as such, the interest of the Plaintiffs and the other trustees vested in the State under the Estates Acquisition. Act. The Rule was discharged by a judgment (15) passed on April 12, 1957, and in that judgment views were expressed on the particular points raised. An appeal was preferred against that judgment and order being F.M.A. No. 12 of 1958. During the pendency of that appeal endeavours were made to arrive at an amicable settlement and that having failed the appeal was heard. At that hearing for the Plaintiffs-Appellants a new point was raised in support of their contention that they were not intermediaries by asserting that they were non-agricultural tenants. That assertion was denied by the Respondent State. The Division Bench (Bachawat and A. K. Mukherjea JJ.) disposed of the appeal by a judgment the whole of which was included in the plaint and is set out below:

Before us Mr. Roy advanced a powerful argument to the effect that the Appellants held these jalkars for non-agricultural purposes and consequently they cannot be considered to be intermediaries. Unfortunately, this point is raised for the first time. The point involves mixed question of fact and law. The Respondents do not admit that the jalkars were held by the Appellants for non-agricultural purposes. The disputed question cannot be decided in these proceedings. It appears to us that the Appellants must be relegated to a suit. No expression of opinion, either in this judgment or in the judgment appealed from, will be taken to decide the rights of the parties. All points are left open.

Subject to the observations made above, the appeal is dismissed.

By consent the order dated the 20th November, 1957, will continue for a period of four months from to-day. There will be no order as to costs of this appeal.

Then only three suits were ''instituted, being T.S. Nos. 67, 68 and 69 of 1964 in the Court of the Subordinate Judge, Murshidabad. The three suits were heard analogously and those were disposed of by one judgment by which all the three suits were dismissed. Present appeal has been preferred against the decree in T.S. No. 67 of 1964 only. Material averments appear in paras. 14, 15, 16 and 17 of the plaint and those are set out below:

The Plaintiffs are not intermediaries within the meaning of the provisions of the Act, but the Plaintiffs are non-agricultural tenants as in respect of the disputed jalkars. The interest of the Plaintiffs in respect of the disputed jalkars have not vested in the State under the provisions of the Act.

In the alternative assuming that the disputed jalkais are part and parcel of the river Bhagirathi as contended by the State in the aforesaid Rule, the said river Bhagirathi being a public navigable river the question of vesting of the interest of the Plaintiffs in the said river does not at all arise and the State has no right to demand delivery of possession.

In the alternative, the disputed jalkars are tank fisheries within the meaning of Section 6(e) of the Act even assuming but not admitting that the interest of the Plaintiffs in the disputed jalkars are those of an intermediary, the Plaintiffs are entitled to retain the disputed jalkars as tank fisheries.

The Defendants have no right to demand or to take delivery of possession of the disputed jalhars which have not vested in the State. Even assuming that they have vested, the Plaintiffs are entitled to retain possession of the disputed jalkars''as lessees under the State, in any event.

Plaintiffs prayed for two reliefs. One a declaration and another a permanent injunction besides costs. Those main reliefs prayed were:

(a) A decree declaring, that the interests of the Plaintiffs in the disputed jalkars have not vested in the State and that the Plaintiffs are entitled to continue in undisturbed possession thereof or, alternatively, the Plaintiffs are entitled to retain possession thereof as lessees under the State.

(b) Permanent injunction restraining the Defendants from interfering with or disturbing in any matter the title and possession of the Plaintiff''s in the disputed jalhars.

In the written statement the Defendant State traversed paras. 14 to 17 of the plaint and asserted mainly that--

(i) The Plaintiffs are not non-agricultural tenants.

(ii) The jalkars being within touzis are estates.

(iii) The right of the Plaintiffs in the said [alkar was the right of intermediaries which vested in the State.

(iv) All rights or interests of whatsoever nature belonging to the Plaintiffs in respect of the jalkars were encumbrances which vested in the State.

(v) The Plaintiffs are not entitled (to retain possession of the jalkars as leases under the State in any event.

(vi) The Plaintiffs are estopped to set up a new case in the suit as against the right which was claimed in the proceeding under Article 226 of the Constitution.

We have set out the pleas of both parties raised in the suit and also in the previous proceeding under Article 226 in some detail to reveal what appear to us apparent and loud inconsistencies which both parties introduced in their pleadings and arguments. The Plaintiffs put them as alternative pleas not only of results obtaining in law but also hypothesis of facts mutually inconsistent and contradictory. The Plaintiffs asserted that the fisheries were the bed of public navigable river Bhagirathi yet saying those were tank fisheries though the owners were not intermediaries. Loudest of those in the pleading of the Defendant State appears from their assertion that the fisheries were bed of public navigable river yet asserting that those were estates and the owners were intermediaries. The Defendant asserted that inconsistent and contradictory opposition in law without committing to any assertion on point of fact at all. In both, however, there was underlying one fundamental assumption mutually antagonistic insofar as the Plaintiff''s substratum was that the right in the fishery was neither estate nor part of an estate while the substratum of the Defendant''s contention was.that it was an estate.

Importance of.the question of fact whether the jalkar interest of the Plaintiffs is an estate is of fundamental importance in this case, because u/s 4 of the Estates Acquisition Act what was vested in the State is ''estate'' and the rights of intermediaries in such estate and only in respect of interest that have been vested can a notice u/s 10(2) be issued.

Important point therefore is, what is an estate. It has not been defined in the Estates Acquisition Act although in Section 2(f) of the Act it says ''estate'' includes part of an estate. Section 2(p) of the Act has however, adopted definition of it as appears in the Bengal Tenancy Act. A reference to the Bengal Tenancy Act shows that Section 3(4) of the Bengal Tenancy Act defined estate only land, be it revenue-paying land or revenue-free land including the Government khas mahals are included in it and not any incorporated hereditament or inchoate right of the nature of right a pendre not connected with land. That definition obtains the result that if the jalkar or fishery right had an interest in the land or the river bed, then only it can be an estate which has vested in the State under the Estates Acquisition Act, quite apart from the question whether it is a river fishery or a tank fishery. If it is an incorporeal right of catching fish in the water of the river, then it is a right a pendre and not an estate. That clearly shows the extent of contradictory positions that each party has taken in this controversy. From the standpoint of the Plaintiffs it is asserted that they have an interest in the land or bed of the river, yet they also say that is a fishery in a tidal and public navigable river. That is contradictory to the extent (that the bed of a tidal public navigable river is public or eminent domain of the sovereign State of the country, i.e. Union of India. If it is not part of an estate, it also follows that in such case the Plaintiffs cannot be non-agricultural tenants either.

From the standpoint of (the State also if it is a fishery in a tidal public navigable river, as (they asserted, then the fishery is not an estate and that interest has not vested in the State u/s 4 of the Estates Acquisition Act and notice u/s 10(2) cannot be issued by the State in respect of that interest.

The contradictory stands taken by parties clearly show the confusion each party was suffering from and loose language each of them has been employing not only in (the previous proceedings in this Court under Article 226 of the Constitution but also in the pleadings in this suit.

It is interesting to note that in the present suits each party was relying on one or other statement of the other made in the previous proceedings and also in the respective pleadings in the suits.

The findings of Sinha J. were all obliterated by the order of the Appellate Court which T have quoted above.

Yet these contradictions have not been appreciated by the learned Subordinate Judge in the present suits and instead he has carried the contradiction into his judgment by recording his findings that the fishery is in a tidal public navigable river not connected With land or bed of the river and, at the same time, holding that it'' is an estate that have vested in the State u/s 4 of the Estates Acquisition Act. The two findings cannot stand together. If that is right, then the Plaintiffs will succeed. If the second is right, then the Plaintiffs will fail and the State shall succeed.

That leads us to examine the reasons of the Subordinate Judge in support of his findings to start with the learned Subordinate Judge has noticed the three alternative cases pleaded by the Plaintiffs in paras. 1.4, 15 and 16 of the plaint and he took up for consideration one after the other. The first alternative case of the Plaintiff that they are not intermediaries within the meaning of the Estates Acquisition Act but are non-agricultural tenants in respect of the jalkars in suit. The learned Subordinate Judge relying on decisions of this Court in Asrurekha Duila v. Diptimay Pal (1966) 70 C.W.N. 1079 and Manindra Nath Mukherjee v. Nitai Chandra Hazra. (1966) 71 C.W.N. 278 and also a judgment of the Supreme Court copy of which was produced before him, reached the view that--

The undisputed legal position, therefore, is that the property of the non-agricultural tenant as well as their interest in such property have not vested in the State by the promulgation of the Estates Acquisition Act.

Regarding the question whether the Plaintiffs are non-agricultural tenants the learned Subordinate Judge proceeded to examine the evidence to answer the question whether the Plaintiffs have any interest in land or, in other words, whether they have any right or interest in sub-soil of their respective jalkars in suit and recorded this finding on the result of examination of the ancient documents produced in. evidence that no interest in the sub-soil of the [altars in suit appertaining the touzi No. 199 was demised, on the other hand, the same unmistakably establish that what was settled thereby was a mere right of fishery in respect of the jalkars of touzi No. 199 subject to the public right of navigation.

Regarding the jalkar appertaining to touzi No. 486 in suit, documentary evidence Exs. 15, 14A were not sufficient for any decision of that point. He, (therefore, relied on the oral evidence and referring to the position that the Plaintiffs had taken in the connected Rule that the jalkars in suit were river fisheries unconnected with the soil or bed of the river, the learned Subordinate Judge arrived at his finding that neither the lessee of the jalkar nor the fisherman under them did ever do any act of possession in respect of the soil or bed of the jalkar except for making fencing by bena and bamboo for the purpose of protection of fish and that also only in rainy season. These acts of making fencing by bena and bamboo were held to be mere acts incidental to the right of fishing which cannot be said to be any act of possession in respect of tie land or having created any interest in the land in the jalkars in suit. Because of that finding the learned Subordinate Judge held that the Plaintiffs were not non-agricultural tenants in respect of the jalkars.

Then the learned Subordinate Judge referred to the judicial decisions in Forbes v. Meer Mohamed Hossain (1873) 20 W.R. 44, Srinath v. Dinabandhu (Supra) and Prafulla Nath Tagore v. The Secretary of the State (1920) 24 C.W.N. 639, for the proposition that a jalkar or a right of fishery may exist'' in India as an incorporeal hereditament and as a right to be exercised on the land of another and, therefore, in this country a jalkar (rights of fishery) does not necessarily imply any right in the soil itself and has no interest in land. Then, referring to Section 5(1) of the Estates Acquisition Act he recorded in his judgment:

It is not disputed that if a right of fishery in a tidal navigable river be granted along with (the bed or sub-soil of the river itself to the private individuals the same would undoubtedly be an estate and right is in relation to the State would be rights in such an estate and, accordingly, such an estate and the rights therein have vested in the State upon the notification u/s 4 of the Act.

The learned Subordinate Judge then proceeded to examine the question whether the right in fisheries in public navigable river which "has no connection or interest in the bed of the river or subsoil can be an estate. Referring (to the definition of ''estate'' in Section 3(4) of the Bengal Tenancy Act and relying on the decision in Bejoy Krishna Dey v. Sub-Divisional Land Reforms Officer (1963) 67 C.W.N. 802 and Hara Nath v. State of West Bengal (Supra) he concluded that a right of fishery in a public navigable river, the sub-soil of which belongs to the Government, or in other words, in the Government khas mahal property, is a right in relation to an estate, as such, the fishery in vested in the State under the provisions of the Estates Acquisition Act.

Having held so, the learned Subordinate Judge proceeded to hold that a right of fishery which is an incorporeal hereditament or an easement right is a benefit arising out of land covered by water, that is to say, a profit a pendre and, as such, an incumbrance which is not protected under the Estates Acquisition Act and he referred as an authority for that proposition to a decision in Saroi Kumar v. Jitendra Nath (Supra). He summed up the legal position as that:

Not only the river fisheries in non-tidal and navigable river but also the river fisheries in tidal and navigable river, no matter whether the same is connected with the soil or any, have vested in the State u/s 5(1)(a)(ii) upon the notification u/s 4 of the Act.

Then, by referring to the evidence in the case, the learned Subordinate Judge held that the jalkars involved in the present three suits are river fisheries and |they have not by any change of nature and character been converted into that fisheries as defined u/s 6(1)(a) of the Act.

In the process of reasoning of the learned Subordinate Judge it appears in his judgment where he has held on (the authority of the case in Forbes v. Meer Mohamed Hossain (1873) 20 W.R. 44 that the right of fishery even without any connection with the soil may be leased out under the provisions of the Transfer of Property Act and, therefore, according to the finding of the learned Subordinate Judge what was demised in favour of the predecessor-in-interest of the present Plaintiffs was a mere right of fishing in respect of the suit jalhar without any right to sub-soil thereof. Directly, following the finding of his, the learned Subordinate Judge proceeded to consider whether the jalkar in three different suits are river fisheries or tank fisheries, assuming that because of his finding that a fishery without any connection with the sub-soil is a transferable property under the Transfer of Property Act, therefore, it must also be an estate within the meaning of the Estates Acquisition Act. In that assumption the learned Subordinate Judge is grievously in error. He has failed to notice the distinction that law makes between ''land'' and ''immovable property''. In the Division Bench decision in Saroj Kumar v. Jitendra Nath (supra) which he has relied on, Chatterjee J. discussed the law and judicial decision and observed:

We, therefore, cannot say that ''a right of fishery'' apart from the lease of the sub-soil to be ''land'' though it is ''immovable property'' within the meaning of the General Clauses Act.

Therefore, there is no difficulty in coming to a conclusion that the right of fishery apart from any right to the sub-soil is immovable property within the meaning of the General Clauses Act.

All properties which are transferable under the Transfer of Property Act are not estates within the meaning of the Estates Acquisition Act, only those which are within the definition adopted by that Act are. For that understanding careful examination of the definition is necessary. ''Estate'' has been defined in Section 3(4) of the Bengal Tenancy Act as:

''Estate'' means a land included under one entry in any of the general registers of revenue-paying land and revenue-free land prepared and maintained under the, law for the time being in force by the Collector of a district and includes Government khas mahal and revenue-free land not entered in any free land not entered in any register.

From the definition it follows that a fishery without any connection with the sub-soil, though it is a property transferable under the Transfer of Property Act, is not an ''estate'' unless it is shown that for that mere right of fishery, revenue has been assessed to be paid by the malgoozar under Regulation I of 1793 or unless that right of fishery without any connection with the sub-soil can be considered to be included in the Government khas mahal- In the absence of any evidence on either of those two points, the broad assumption that the kind of fishery found by the learned. Subordinate Judge to have been demised by the proprietor to the pattanidar and in the series of hierarchy to the pattani as an estate cannot be sustained.

A break up of that definition reveals its true contents. The break up shows:

(i) land included in one entry in any of the general registers (a) of revenue paying lands, (b) of revenue-free land maintained under the law,

and (ii) includes (a) Government khas mahal and (b) revenue-free land not entered in any register.

While (i)(a) and (b) and 2(b) in the above break up of the definition ex facie must be land, only question that may arise is, what (2)(a) will include what is Government khas mahal f First, by the context in which it occurs in the definition, particularly its juxtaposition and in relation to the words preceding and following it, the rule of ejusdemgeneris is directly attracted so that it means only lands which are khas mahal.

What is a khas mahal has been elaborately discussed by my Lord in his judgment just delivered and which I had the privilege of perusing. That makes it clear that public domain and khas mahal do not bear same meaning and are not exchangeable terms. Khas mahal, in land laws of West Bengal, has a technical meaning traceable to the Regulations of 18th and 19th centuries.

Yet it is true that khas mahal has often been loosely used in a generic sense to mean any property of which the Government is the owner whether as a proprietor by resumption which once belonged to the Zemindar as part of his estate (in which case Government holds it just like any other Zemindar or proprietor) or as title paramount exercising sovereign right over public domain like the bed of the territorial waters of the sea or the bed of public navigable river, or under the Crown Grants Act. But, in our view only the former meaning" attaches to khas mahal as included in the definition and not any of the latter. That has been held by the Division Bench decision in State, of West Bengal v. Birendra Nath Basunia (Supra). In view of that decision of the Division Bench, the decision in Hara Nath Ghosh''s case (Supra) which is a judgment of P. B. Mukherji J. (as his Lordship then was) sitting singly holding that whatever is said to be khas mahal is an estate within the meaning of the Estates Acquisition Act, cannot be considered to be good law.

From these follows that the interest which is the right of fishing without any connection with the sub-soil is not an interest that has vested in the State property under the provisions of the Estates Acquisition Act, Once that conclusion has been arrived at, the question whether such a fishery is a river fishery or a tank fishery is rendered unnecessary to consider, because the State Government has no right to issue a notice u/s 10(2) unless the interest has vested to it under the Estates Acquisition Act. It is also unnecessary to consider whether it could be considered to be non-agricultural tenancy. That question also does not arise unless the interest is in land as has been pointed out by Chatterjee J. in the judgment in Saroj Kumar''s case (1963) 67 C.W.N. 764

Mere fact that the river bed or sub-soil is a public domain does not give the State Government a right to it. The whole theory of public domain is an aspect of the title paramount belonging to the sovereign power of the political State, which is Union of India, and not the State Government of West Bengal. Whether the State Government by the nature of our Constitution is a representative of that Central Government is not a question that falls for consideration in this appeal. The right that is sought to be exercised on behalf of the State Government is not a right claimed as a part of the.public domain, but only the right by dint of what has vested in them under the Estates Acquisition Act. The learned Subordinate Judge has observed in his judgment that a right of fishery without any connection with the sub-soil belongs to the Government or, in other words, in the Government khas mahal property is a right of fishery being a right in relation to any estate and is included in the definition of the word ''estate'' and, as such, vested in the State. Under the provisions of the Act this has the look of a double falacy. A public domain belongs to the sovereign State, that is, the Central Government. It is not the Government khas mahal belonging to the State Government. Second", the basic assumption of the learned Subordinate Judge that in that broad path of river Bhagirathi in the district of Murshidabad it is a public navigable river, is also an assumption without any evidence in the case to warrant the assumption made by him. He appears to have drawn his inspiration from the judgment of Lord Sumner in the Privy Council decision of Srinath v. Dinabandhu (Supra) without noticing that description of the pictorious character of if he river is not regarding Bhagirathi in Murshidabad, which is called Ganges, but is of main flow of the river Ganges locally known as Padma flowing between Dacca and Faridpur districts. There is no evidence, as it could not be, that the attributes of living human personality that Lord Sumner found in that mighty river Padma also attached to the river Bhagirathi in Jangipur subdivision of Murshidabad distinct. Although in the documents of lease by which the pattani was settled and also the document of dar-pattani there is reference to assuring unhampered passage of boats by removing the bamboo poles that may be fixed by the owner of the fishery right for the purpose of fishing, evidence in the case unmistakably points to the fact that the several water-paths are no more than negligent depression in the high island thrown up by the river herself in the middle of the course, locally known as char, as described by Lord Sumner in that celebrated judgment. There is evidence, no doubt, that in some part of the year for, how little or how long not ascertained, during the full flood in the rains, these unconnected water reservoirs in the middle of the char get connected with the main flow of the river. Yet, from that alone the doctrine propounded by Lord Sumner of upstream and downstream limits in the channel cut through other''s land by the river in the process which has been described by the learned Lord as river, making land her own, can be applicable to the facts of the present case.

By all standards appearing from the-evidence in the case these fisheries described in those old documents as Sayer Gangapath jalkar are disconnected, separated individual fisheries, although those many in some part of the year for a few days or weeks get overflow by the high water river. That being so, it must, in any view, be held that the State of West Bengal has failed to show that fisheries in question are an estate that are vested in them under the provisions of the Estates Acquisition Act.

During the hearing of this appeal we had given opportunity to the counsel appearing for the State to produce the C.S. or R.S. khatians in respect of those jalkars to show the real character. The State has not produced those either in the trial Court or before us. Those were the revenue papers of the State very much available to them and no explanation has been offered of withholding those material evidence. For that reason it is, in our view, a fit case in which the presumption adverse to the claim of the State can and should be drawn that the jalkars are not interests which are vested in the State Government under the provisions of the Estates Acquisition Act.

For all those reasons, I hold that the decision of the learned Subordinate Judge is erroneous. We hold that the Revenue Officer had no legal authority to issue notices u/s 10(2) of the Estates Acquisition Act for taking possession of those fisheries.

The question was raised on behalf of the Respondent State that the Appellants had not shown that they had retained those jalkars in their khas by submitting in the ''B'' form under the Act. To that, the learned Advocate for the Appellant, Mr. Prafulla Kumar Roy, has pointed to the date on which the notice u/s 10(2) was issued. As we have said already in the earlier part of this judgment that within a few weeks of the coming of the Estates Acquisition Act into force and before the expiry of the period, within which the ''B'' form was to be submitted, notice u/s 10(2) of the Act was issued. Once the dispute had been raised by issue of the notice u/s 10(2) there was no question of submission of ''B'' form by the Appellants in respect of those jalkars. Even if they have not done so within the time allowed by law, then by the effect of Sub-section (5) of Section 6 the only effect is that the intermediary does not lose his right to retain khas quantity of land within the ceiling all that he loses is, his right of choice of what land he will retain within that ceiling because under Sub-section (5) of Section 6 the Revenue Officer will determine what land within the ceiling the intermediary will be allowed to retain of course after giving that opportunity of being heard.

Moreover, question of retaining any land by an intermediary can arise only when the land is within an estate so as to attract operation of Section 4 of the Estates Acquisition Act. As we have held, in the present case, that essential fact has not been established, nothing turns on the omission to retain the jalkars by including them in the statement in ''B'' form. Not being included in an estate, the fisheries have not vested in the State of West Bengal under the Estates Acquisition Act. Therefore, the Plaintiff shall succeed in the suit and the Defendant State of West Bengal shall fail.

Under what right the Plaintiffs or their predecessors have been possessing and exercising rights in these fisheries is not a question relevant to the present suit. It may be a mystery analogous to one that arose in Bagram''s case Southerland W.R. (1864) CR 243 so elaborately discussed by my learned brother. There is no need to solve that mystery in the present appeal.

For that reasons I have mentioned above I agree with the conclusion reached by my Lord to the effect that, on the facts proved in this case and on evidence produced, it should be held that there is no evidence to show that the jalhars in suit are estates or interests appertaining to any estate or comprised within an estate within the meaning of the Estates Acquisition Act and the jalhars, therefore, have not vested in the State of West Bengal u/s 4 of that Act. For that reason I also agree that it must be held that the Collector of Murshidabad had no jurisdiction to issue notice u/s 10 of that Act or to take possession of the jalkar under the Estates Acquisition Act, 1953.

I also agree that the decree passed by the Trial Court should be set aside. Suit No. 67 of 1964 shall be decreed in favour of the Plaintiffs to the extent of a declaration that the interests of the Plaintiffs in the disputed jalkars have not vested in the State of West Bengal under the Estates Acquisition Act, 1958, and an injunction restraining the Defendants State of West Bengal from disturbing possession of the Plaintiffs in the jalkars in pursuance of notice u/s 10 of the Estates Acquisition Act, 1953.

In the result, the appeal is allowed with costs against the Defendant-Respondent No. 1 in both the Courts.