- (1.) THE first question that arises for consideration in this appeal is whether in the face of the provisions of section 46 of the West Bengal Estates Acquisition Act, 1953 the Civil Court had jurisdiction to entertain this suit. If the answer to that question be in the affirmative, we have to consider another question namely, whether the decree of the trial court affirmed by the appeal count decreeing the plaintiff's suit and giving him a declaration that he has get tenancy right in the suit land under defendants Nos. 1 to 7 and 10 is liable to be set aside or modified in this second appeal. Section 46 of the West Bengal Estates Acquisition Act is in these words :- "where an order has been made under sub-section (1) of section 39 directing the preparation or revision of a record-of-rights, no Civil Court shall, until after the final publication of the record-of-rights under sub-section (2) of section 44, entertain any suit or application for the determination of rent or determination of the status of any tenant or the incidents of any tenancy to which the record-of-rights relates, and if any such suit or application is pending before a Civil court on the date of such order it shall be stayed: provided that in computing the period of limitation prescribed by any law for the time being in force for any suit or application, the time during which such suit or application cannot be entertained or remains stayed under the provisions of this Act shall be excluded. Explanation-In this section suit includes an appeal. "
(2.) BEFORE us it is admitted and apparently it was admitted in the courts below that an order was made under sub-section (1) of section 39 directing the preparation or revision of the record-of-rights in respect of the district where the suit land lies, before the suit was instituted. In order then to determine whether the provisions of section 46 constitutes a bar to the entertainment of the suit by the Civil Court, we have to decide the further question whether the present suit is one "for the determination of rent or determination of the status of any tenant or the incidents of any tenancy to which the record-of-rights relates. " Turning to the plaint on which this suit was instituted, we find that the plaintiff averred that he had been in possession of the suit land as a tenant under the defendant since the year 1356, that a new settlement was proposed in 1359 whereby it was agreed that the defendant would grant a permanent lease but no permanent lease had actually been granted, that the defendant has been trying to oust the plaintiff forcibly though the plaintiff has valuable fish, cultivation, Golaghat, Tube-well etc. in the property, that the defendant wrote several letters to the plaintiff asking him to vacate the property on several dates and the plaintiff gave replies to those letters. In the prayer portion the relief prayed for is in these words: "plaintiff prays- (a) That plaintiff's tenancy right upon the property described in the schedule below may be declared and the defendants may be restrained by a decree for permanent injunction from interfering with the plaintiff's possession therein either by ousting him or in any other way. (b) That a decree for costs of this suit may be passed against the defendants. (c) That during the pendency of this suit the defendants may be temporarily restrained by an order of temporary injunction from interfering with the plaintiff's possession of suit property. (d) That the Court may be pleased to pass such other or any order as may be deemed fit. "
(3.) THERE was an amendment of the plaint which is not of much importance for our present purpose. The main defense taken in the written statement was that the property in suit was wholly a Jalkar and was settled by the landlords first to one Khagendra Nath Singh, and then with the plaintiff's father Dhirendra Nath Sapui for 1356 B. S. and again for 1357 B. S. as a Jalkar, that on the death of the plaintiff's father, it was settled with the plaintiff for 1358, 1359, 1360 and 1361 B. S. each time for one year only after the expiration of the settlement of the preceding year, for the purpose of rearing and catching fish without any right to soil or sub-soil, that the defendants had served on the plaintiff a notice asking him to vacate and leave the property in suit in complete khas possession of the defendants on the expiry of the settlement ending in Magh, 1361, B. S. There was also a denial of an agreement to grant permanent lease of the disputed Jalkar to the plaintiff.;