- (1.)THIS Rule was obtained by the plaintiffs under section 115 of the Code of Civil Procedure against an order passed by the Subordinate Judge, 8th Court. Alipore in title Suit No. 28 of 1974 directing that a reference be made to the local J. L. R. O. for a decision on the question whether the defendants in the suit were bargadars in respect of the suit property. Facts of the case shortly are as follows :-The plaintiffs-petitioners claim to have purchased 339 acres of land appertaining to plot nos. 29, 30 and 34 of Mouza Chhoto-Saheb-Khali, P. S. Hingalgunge, District-24 Parganas on the basis of four registered deeds of conveyance purported to have been executed by the previous owners Banachari Gayan and his co-sharers sometime in June, 1973. There were some bargadars in these lands who are alleged to have surrendered the lands in favour of the previous owner under a registered Istafanama on June 22, 1971. The owners then held the lands in khas for sometime and thereafter transferred the same to the plaintiffs in June, 1973. The defendants who are stated to have unsuccessfully attempted to purchase the property, thereafter set up a claim of Barga right in the suit property and initiated certain proceedings under Sec. 144 Cr. P. C. in the Basirhat criminal Court. The plaintiffs were accordingly compelled to institute the suit for a declaration of their title to the property on the allegation that the defendants were not bargadars in respect of the suit property and for a permanent injunction for restraining the defendants from interfering with their possession. After the filing of the suit, the plaintiffs applied for and obtained an expert order of temporary injunction on 16-7-74. The order was subsequently re-opened by the learned Judge at the instance of the opposite parties and was taken up for consideration. The defendants raised a contention that in view of the amendment of the West Bengal Land Reforms Act in june, 1974 (hereinafter referred to as the 'act')the learned Subordinate Judge was not competent to decide the question as to whether the defendants were bargadars in respect of the property and the matter was required to be referred to the J. L. R. O. concerned in view of the introduction of sub-section (3) to Section 21 of the Act by West Bengal Land Reforms (Amendment) Act, 1974 (to be hereinafter referred to as the amending Act ). The learned subordinate Judge upheld the contention of the defendants and referred the matter to the j. L. R. O. Against this order plaintiffs obtained the instant Rule. This Rule is not opposed by the defendants opposite parties.
(2.)MR. Banerjee appearing on behalf of the petitioners has contended before us that apart from the fact that the learned Judge was competent to make an interlocutory order in the instant case, sub-section (3) of section 21 did not have any application to the facts of this case, as the said provision was not retrospective in operation. The amending Act came into force on June 21, 1974 and the suit was instituted on June 111974. Section 21 (3) of the West Bengal Land Reforms Act as introduced by the amending Act are in these terms :-
" (3) If any question as to whether a person is or is not a bargadar arises in the course of any proceedings before any civil or Criminal Court, the Court shall refer it to the officer or authority mentioned in sub-section (1) of Section 18 for decision. "

(3.)MR. Banerjee contends that the right to obtain relief before a Civil and Criminal Court by a party is a substantive right, which has not been taken away by the introduction of the said sub-section, inasmuch as it did not have any retrospective effect. The instant suit was instituted on June 11, 1974 and the question whether the defendants were or were not bargadars arose as soon as the plaint was filed before the Court. Consequently the issue before the Civil Court was already there, when the amending Act came into force with effect from June 21, 1974.