Kalidas Mukherjee, J. - (1.) This Second Appeal has been preferred by the plaintiffs/appellants assailing the judgment and decree passed by learned Civil Judge, Senior Division, Asansol in Title Appeal No. 76 of 2000 affirming the judgment and decree passed by learned Civil Judge, Junior Division, second Court, Asansol in T.S. No. 230 of 1991. The case of the plaintiffs/appellants in short is that the suit lands originally belonged to Bhujanga Bhusan Kanjilal (since deceased) in intermediary rights. Bhujanga Bhusan Kanjilal duly submitted return in 'B' Form under Sec. 6 of the West Bengal Estate Acquisition Act by exercising his option to retain the lands described in the schedule of the plaint along with other lands. Bhujanga Bhusan Kanjilal did not hold any land in excess of the ceiling limit prescribed under the West Bengal Estate Acquisition Act. Bhujanga Bhusan was under the impression that Khanda Khatians would be made in respect of the lands owned and possessed by him. He was in khas possession of all the lands described in the schedule of the plaint which were retained by him till his death in the year 1961. After his death, the plaintiffs being the heirs have been in khas possession of the suit lands as absolute owners thereof. In December 1984, the plaintiffs for the first time came to learn from the Tahsilder attached to the office of JLRO, Raniganj, that the suit lands had been vested to the State of West Bengal. Thereupon, plaintiff No. 1 on behalf of all the plaintiffs met the JLRO in January, 1985. The plaintiff No. 1 was advised to submit another fresh return in 'B' form retaining all their lands including the suit lands. Accordingly, the plaintiffs submitted return in 'B ' Form on 25.02.1985 retaining thereby all the lands including the suit lands as inherited by them from Bhujanga Bhusan Kanjilal. After submitting the said return, the plaintiff met the JLRO who assured that Khanda Khatians would be made in their names as late Bhujanga Bhusan Kanjilal did not hold any land in excess of the ceiling limit. The plaintiffs waited for about 6/7 months and thereafter in April, 1986 they came to learn that no Khanda Khatian was opened in their names in respect of the suit properties. The plaintiffs thereafter submitted a fresh application on 18.09.1989 to JLRO stating all the facts and prayed for opening the Khanda Khatian in their names in respect of the property left by late Bhujanga Bhusan Kanjilal. The plaintiffs were informed that their application dated 18.9.1989 was forwarded to D.L.R.O., Burdwan and thereafter the same was forwarded to BL & LRO, Raniganj vide Memo No. 18 dated 25.9.1989. Ultimately, no Khanda Khatian was opened in the name of the plaintiffs and the plaintiffs after serving notice under Sec. 80 C.P.C. instituted the suit praying for declaration of title and permanent injunction.
(2.) The State of West Bengal contested the suit and filed written statement denying the contentions raised by the plaintiffs in the plaint. It is the case of the State of West Bengal that the suit property was owned by Bhujanga Bhusan Kanjilal with "Madhyasathadhikari Chirasthayee" rights and the suit lands duly vested to the State of West Bengal. The proposal for opening Khanda Khatian was not applicable to the case of the plaintiffs as the total area was 6.06 acres of land.
(3.) The learned Civil Judge, Junior division, dismissed the suit holding that the suit lands were in possession of Bhujanga Bhusan Kanjilal and after his death in the possession of the plaintiffs. The learned Civil Judge, Junior Division further observed that the suit lands are in the possession of the plaintiffs though the possession has not been challenged. It has been held that in absence of sufficient evidence as to the retention of the suit lands or whether the plaintiffs have lands within the ceiling limit or not, the plaintiffs are not entitled to get a decree for declaration of title.;