Sahidullah Munshi, J. - (1.) This second appeal is at the instance of the plaintiffs/appellants against a judgment and decree dated 10th April, 1987, passed by the subordinate Judge, Katwa, in Title Appeal No.208 of 1985, reversing those dated May 23, 1985, passed by the learned Munsiff, 1st Court, Katwa, in Title Suit No.537 of 1983, directing return of the plaint to the filing Advocate.
(2.) The plaintiffs filed a suit for declaration and permanent injunction against the defendant/State of West Bengal, praying, inter alia, that the plaintiff No.1 was the owner and possessor of the properties mentioned in the schedule of the plaint at Mouza Gobardhanpur, P.S. Mongolkote. It was also a case made out by the plaintiff no.1 that he had no land above the ceiling prescribed under the West Bengal Land Reforms Act and that 'kha' scheduled property given by the plaintiff no.1 to the plaintiff nos.2 to 4 by a registered deed of family settlement dated 22nd March, 1975 and they have become the owner and possessor of those properties. According to the plaint case, plaintiff nos. 2 to 4 were the owner and possessor of 'ka' scheduled property and plaintiff nos. 2 to 4 were the owner and possessor of 'kha' scheduled property. On 15.02.1971, plaintiff no.1 had no agricultural property except 'ka' and 'kha' schedule. It is the plaintiffs' case that the 'uma' schedule property is situated within irrigated area and 'kha' scheduled property does not get any irrigation facility. According to the provisions of West Bengal Land Reforms Act, none of the family members was a raiyat. Therefore, it is the contention of the plaintiff that he had no agricultural property above the ceiling limit prescribed under the West Bengal Land Reforms Act and, therefore, question of filing return by submitting 7A Form to retain the scheduled property did not arise and he had no such need to do so. Inasmuch as, the State of West Bengal was taking steps to distribute the land considering the same had vested to the State, the plaintiff filed the suit under Section 80(2) of the Code of Civil Procedure and under compulsion he had to avoid service of two months' notice as prescribed under Section 80 of the Code of Civil Procedure.
(3.) The defendant/State of West Bengal contested the suit by filing written statement denying material allegations of the plaintiffs made in the plaint. In short, the defence case is that the plaintiffs have no cause of action for the suit, suit was not maintainable in the form it was filed; suit is barred by limitation; suit is barred by principles of waiver; estoppels; acquiescence and is hit by Section 34 of the Specific Relief Act and is also bad for want of sufficient notice under Section 80, C.P.C.;