Ashis Kumar Chakraborty, J. - (1.) This application, at the instance of the appellants in the second appeal is for review of the judgment and decree dated February 13, 2013 passed by a learned Single Judge of this Court, who has since retired, thereby partly allowing the second appeal of the appellants against the judgment and decree passed by the lower appellate Court dismissing their suit.
(2.) From the judgment sought to be reviewed by the appellants -applicants, it appears that two points of law were urged by the parties to the second appeal before this Court. First, whether an intermediary can retain possession of any land vested in the State under Sec. 5 of the Act by filing Form -"B" appended to the West Bengal Estates Acquisition Rules, even after issuance of notice under Sec. 10(2) of the Act. The second point was, whether in view of the provisions contained in Ss. 57(B)(2) of the Estate Acquisition Act, 1953, hereinafter called as "the Act", an intermediary can maintain a suit, before the Civil Court, claiming declaration of title and decree for permanent injunction in respect of lands sought to be retained by him under Sec. 6 of the Act. The brief facts giving rise to this review application are as follows.
(3.) Various lands including the suit lands, described in schedule "Ka", "Kha" and "Ga" of the plaint filed in the suit belonged to the appellants applicants, which stood vested in the State under Ss. 4 and 5 of the Act. In exercise of their right under Sec. 6 of the Act of 1953, the appellants -applicants sought to retain the suit lands and on July 08, 1968 they filed the relevant Form -"B" as prescribed under Rule 4A of the West Bengal Estates Acquisition Rules before the Revenue Officer. Without any decision on the said Form -"B" filed by the appellants -applicants, on May 25, 1971 the Collector issued a notice, under Sec. 10(2) of the Act, for taking over possession of the suit lands of the appellants -applicants. After receipt of the said notice, on May 18, 1971 the appellants - applicants filed another Form -"B" to retain the suit lands and once again without deciding the said application, the State -respondent sought to take possession of the suit lands on July 11, 1971. Thus, the appellants -applicants filed a suit being Title Suit No. 224 of 1971, before the learned 1st Court of Munsif at Arambag claiming, inter alia, a declaration that they have the right, title and interest and possession of the suit lands mentioned in the Form -"B", being schedule "Ka", "Kha" and "Ga" of the suit and a decree for permanent injunction restraining the defendant from disturbing their peaceful possession of the suit lands. The said suit was contested by the defendant State of West Bengal. The defendant State of West Bengal resisted the said suit on the grounds, that it was barred by Sec. 57(B)(2) of the Act and that after issuance of the notice under Sec. 10(2) of the Act, the plaintiffs had no right to retain any of their lands already vested in the State and possession of all the lands sought to be retained by the plaintiffs was already taken over by them. After considering all material evidence and the decision of this Court in the case of Ramkrishna Mullick & Ors. Vs. State of West Bengal & Ors. reported in : 1975(1) CLJ 154, the learned trial Court held that Sec. 57(B)(2) was no bar for the Civil Court to entertain the suit filed by the plaintiffs involving the question of title of the suit lands, that the defendant State of West Bengal had not taken over possession of the lands sought to be retained by the plaintiffs and that even after issuance of the notice under Sec. 10(2) of the Act by the defendant State of West Bengal, the plaintiffs could file Form - "B" to retain their lands under Sec. 6 of the Act. By the judgment dated March 21, 1979, the learned trial Court decreed the Title Suit No. 221 of 1971 by declaring that the plaintiffs have right, title and interest and possession of the suit lands as per share mentioned in the Form - "B" minus Plot Nos. 778, 784, 774, Khatian No. 194. Against the said judgment and decree passed by the learned trial Judge the defendant State of West Bengal filed an appeal, being Title Appeal No. 215 of 1979, before the Court of the learned Sub -Judge, 1st Court of Hooghly. However, by the judgment dated January 31, 1983, the learned lower appellate Court reversed the judgment and decree passed by the learned trial Court and dismissed the title suit. The learned lower appellate Court, held that the suit filed by the appellants -applicants was barred by Sec. 57B(2) of the Act. Against the said judgment and decree of dismissal of the suit passed by the learned lower appellate Court, the appellants -applicants filed the second appeal before this Court, the same was admitted for deciding the following substantial question of law. "Whether the learned lower appellate Court substantially erred in law by declaring that the suit was barred under Sec. 57(B) of the West Bengal Estate Acquisition Act, without applying the correct legal test.";