Joytosh Banerjee, J. - (1.) This appeal is directed against the judgment and the decree of dismissal passed by the learned Additional Sub-Judge, Burdwan on 15.1.82 in Title Appeal No. 243/71.
(2.) Briefly stated the case of the plaintiff is that the defendant No. 2 of the suit (Title Suit No. 143/69) made a gift of the suit properties described in Schedule 'A' to the plaint in favour of the plaintiff by a registered deed of gift dated 5.2.1950. Since the date of the execution of such deed, the plaintiff has been possessing this suit property and has also been enjoying the usufruct of the same. The defendant No. 2 had no interest in such property since the execution of the said deed of gift. It is further alleged that on the basis of the said deed, the suit property was recorded in the R.S. Record of rights in the name of the plaintiff. It is further alleged that S.R.O.I and A.S.O. started a suo motu proceeding under Section 44 (2a) of the West Bengal Acquisition Act, 1953. In that proceedings the said authority held that the registered deed of gift was not legal and was not acted upon and on such findings directed for recording the suit property in the name of defendant No. 2, in the R.S. Record of rights. It is further alleged that on the basis of such wrong and illegal order, the defendant No. 2 had been held to hold properties exceeding the prescribed ceiling and accordingly the suit property stood vested in the State. The defendant State of West Bengal contested the suit on a written statement denying all the material allegations raised in the plaint. The learned Munsif raised certain issues on the basis of the pleadings including one touching the question whether the plaintiff was entitled to get a decree for declaration of his title over the suit property and permanent injunction in respect of such suit property as prayed for. The learned Munsif held that the plaintiff had proved the execution and registration of the deed of gift being Marked Exhibit-1 dated 6.2.1950 and admittedly therefore, Exhibit-1 executed and registered much before the birth of West Bengal Estate Acquisition Act and that being so it was outside the perview of any enquiry as contemplated under Section 5A of the West Bengal Estate Acquisition Act hereinafter referred to as the Act. Moreover, the S.R.O. or the concerned authority had no power whatsoever to decide the question of file. Further more from the rent receipt, Exhibit-3 series granted by the State it was evident that the State had accepted rent from the plaintiff for the suit property even up to 1969, for the suit land. Therefore, State was not in a position to deny the title of the plaintiff after accepting the rent. On the other hand, from the evidence on record, the learned trial Court was satisfied that the deed of gift Marked Exhibit. I was legal and valid and the same was acted upon. The plaintiff acquired absolute right, title and interest over the suit property on the basis of Exhibit-1. On the basis of the aforesaid findings, the learned Munsif decreed the suit and declared plaintiff's right, title and interest over the suit property. He further declared that the suo motu proceeding was illegal and without jurisdiction. The State of West Bengal was restrained permanently from interfering with the plaintiff's possession over the suit property. The State of West Bengal preferred an appeal before the learned appellate Court and the learned appellate Court through the order impugned held that the father of the plaintiff was a confirmed Big Raiyat possessing more lands in excess of the prescribed ceiling. The matter was enquired into, in the suo motu proceeding started under Section 44(2a) of the Act and it was found that the suit lands were in excess of the prescribed ceiling and such defendant No. 2 was not permitted to retain the same in such proceeding. It is the further finding of the learned Additional Sub-Judge that whether the father of the plaintiff was entitled to retain the suit lands or not could no longer be investigated by the Civil Court in view of the provisions contained in Clause-B of Sub-section (2) of Section 57B of the Act. It is the clear finding of the learned appellate Court below that if the father of the plaintiff was not to retain the suit land and if the Civil Court could not investigate if the order of vesting was lawful or not, such Court cannot declare the plaintiffs title to the suit lands. With that findings such Court allowed the appeal and dismissed the suit.
(3.) At the time of admission, this Court specifically mentioned that this appeal would be heard on the ground No. 11 as noted in the Memo of Appeal. The ground No. 11 of the Memo of Appeal Funs as follows : "For the learned Court of Appeal below erred in law in holding that the impugned order can no longer be challenged in the Civil Court in view of the provisions contained in Clause (c) of Sub-section 2 of Section 57B." ;