- (1.) This Rule is directed against two orders passed by the court of munsif at Bishnupore. By the first of the two orders a suit was stayed, under the provisions of Section 46 of the West Bengal Estates Acquisition Act, 1953, until final publication of the record of rights, under Section 44(2) of the said Act. By the second order it was directed that the question as to the abatement of the suit would be considered after the period provided for revision and appeal against the finally published record expired.
(2.) The Plaintiffs Petitioners filed a suit, being T.S. No. 88 of 1956, against opposite parties 1, 2 and 3 pleading as hereinbelow indicated: (a) Subordinate to one Ashutosh Roy two persons Krishna Chandra Dey and Shyama Charan Sharma were tenants in respect of a jama bearing an annual rent of Rs. 3. The superior landlord obtained a decree for recovery of arrears of rent, in Rent Suit No. 371 of 1917, in the first court of the munsif at Bishnupur. The said decree was put into execution in Rent Execution Case, No. 504 of 1918 and the defaulting tenure was sold in auction. The father of the Petitioners, Hrishikesh Mandal, since deceased, purchased the defaulting tenure in the bendmi of one Nemai Pal and delivery of; possession was obtained through court. (b) Shyama Charan Sharma had mortgaged his interest in the defaulting tenure along with other properties in favour of the father of the Petitioners. After the death of Shyama Charan Sharma his heirs wanted a release from the mortgage debt. (c) The Petitioners' father Hrishikesh Mondal obtained a kobala, dated August 25, 1919, from the heirs of Shyama Charan Sharma in respect of one-half share of Shyama Charan Sharma in the aforesaid jama of Rs. 3. (d) After the purchase of aforesaid certain portions of the land of the said jama, as described in the plaint, was given in bhag cultivation to the opposite party No. 1 and to the father of opposite party No. 2, who executed the barga kabuliyat in favour of the father of the Petitioners for one year, namely, 1326 B.S. and thereafter another such kabuliyat, dated February 19, 1920, was executed by the said bargadars in favour of the father of the Petitioners for two years, namely, 1327 and 1328 B.S. After the expiry of the said term of the kabuliyat the said bargadars continued the cultivation of the land as bhagchasis or bargadars and continued to deliver the stipulated share of the produce to the father of the Petitioner so long as he was alive and thereafter to the Petitioners. In the last cadastral survey, the interest of the father of the Petitioners was recorded in c.s. khatian No. 94 but quite incorrectly the name of opposite party No. 1 only was recorded as a raiyat in c.s. khatian No. 96 and in the remarks column it was indicated that the said opposite party No. 1 was liable to pay half share of the produce and cesses. (e) The opposite party No. 1 and the father of opposite party No. 2 Govinda Lohar, since deceased, were both cultivating the said lands as bargadars and neither of them had claim any tenancy in the said lands at any time previous to the attestation proceedings of the revisional settlement, which were being held under the provisions of the West Bengal Estates Acquisition Act. During the course of the settlement operation, however, the opposite party No. 1 alone claimed a tenancy right on the basis of the entry of his name as a raiyat, in the previous settlement records and the attestation officer accepted the claim made by the opposite party No. 1 and recorded his name as a raiyat sthitiban in the revisional survey which was then in progress.
(3.) The Plaintiffs Petitioners, inter alia, claimed that a decree be passed declaring that the lands described in the schedule to the plaint were khas lands of the Plaintiffs and the Defendants had no right of tenancy and they were simply ordinary bargadars.;