Nirmal Chandra Mukherji, J. - (1.) This is an appeal from the judgment and decree passed by Shri L. M. Ghosh, Additional District Judge. 10th court, Alipore dated 27the June, 1972 in Title Appeal No. 551 of 1971 reversing those of Shri M. M. Mukherji, Munsif. Additional Court, Sealdah, 24-Parganas, dated 24th April, 1971 in Title Suit No. 96 of 1968.
(2.) The plaintiffs are the appellants in this Court. The plaintiffs brought a suit for declaration of title and permanent injunction. The plaintiffs' case is that the suit property measuring. 26 decimals of land in C. S. Dug No. 888 of Khatian No. 5 of Mauze Pahars originally belonged to Birsa Oraon and Karu Oraon and their names have been recorded accordingly in the C. S. record of right. Birsa had a son named Hadra alias Gandru who predeceased him leaving plaintiff Nos. 1 to 3 and proforma defendant No- 3 as his heirs. Thereafter Birsa died leaving his wife Chumani and the plaintiffs and proforma defendant No. 3 as heirs. On the death of Chumani, the plaintiffs and proforma defendant No. 3 became the heirs in respect of the suit property. It is alleged that Birsa and Karu belonged to the aboriginals of Oraon tribes and by a notification No. 19722 L. R. dated 29th October, 1957 published in the Calcutta Gazette dated 7th November, 1957 it was declared that Oraons of Barrackpore Sub-division with in the district of 24-Parganas were aboriginals and the provisions of Chapter VIIA of Bengal Tenancy Act were applicable to them. Next it is alleged that defendant No. 1 purchased the suit land by practising fraud and without the permission of the Collector and in contravention of the provisions of Chapter VIIA of the Bengal Tenancy Act by a kobala dated 2nd July, 1957 from the said Chumani Oraon and plaintiff no. 2 who was then a minor, without paying any consideration money. It is alleged that the said sale is void in law and as such, the defendant no. 1 did not acquire any right, title and interest in the suit property nor he is entitle to enter into the suit land and disturb the plaintiffs possession. Hence, the suit.
(3.) The defendant no. 1 alone contested the suit. His case is that Birsa was the real owner, but iD the revisional settlement the name of the Karu, proforma defendant No. 2 had been wrongly recorded and as such he has no right, title and interest in the suit property. It is admitted that Birsa and Karu belonged to the aboriginal tribe, but it is denied that by practising fraud he had purchased the suit property. It was further stated that Chapter VIIA of the Bengal Tenancy Act was not applicable to this case. Lastly, it is stated that a joint petition of compromise by the plaintiff No. 1 and defendant No. I was filed in court. The proforma defendant No. 2 filed a separate written statement supporting the plaintiffs' case. As regards the petition of compromise filed between the plaintiff No. 1 and defendant No. 1, the learned Munsif found that the plaintiff No. 2 who was contesting the suit and upon whom the right to sue survived along with plaintiff No. 1 on the death of plaintiff No. 2 did not sign the petition of compromise. The learned Munsif also on perusal of the petition of compromise found that the same was not in accordance with law. In the circumstances, the learned Munsif did not record the compromise and the petition of compromise was rejected on merits. The learned Munsif found that admittedly the vendor of the disputed property which the defendant No. 1 had purchased by a kobala (Ext. I) were aboriginals. The defendant No. 3 (D.W.1) admitted in his cross examination that no permission was taken from the Collector at the time of purchasing the suit property. That being so, the transfer made on 2nd July, 1957 by Chumani Oraon and plaintiff No. 1 comes under the mischief of section 49G of the Bengal Tenancy Act, 1885 and the sale hold on the 2nd July, 1957 must be declared to be invalid in the eye of law. In that view of his finding the learned Munsif decreed the suit. Being aggrieved, the defendant No. 1 preferred an appeal before the learned District Judge. The appeal was heard by the learned Additional District Judge. Before the learned court of appeal below, on behalf of the defendants it was contended that the notification is dated 29th October, 1957 and the transaction in question took place on 2.7.57 and as such, according to the provisions of section 49A of the Bengal Tenancy Act, the provisions of Chapter VIIA would not apply in cases of transfer before notification. On behalf of the plaintiffs it was, on the other hand, contended that section 49-0 of the Act clearly lays down that the transfers which are made at least one year before the date of the publication of the notification under section 49A sub-section (2) will not be affected by such notification. The learned Judge found that apparently there is some conflict between section 49A and section 49-0 of the Bengal Tenancy Act. He was also of opinion that it was to be considered how a reconciliation between the two sections could be brought about. Before the learned Judge an application was filed for filing additional written statement or for amendment by adding one paragraph to the effect that the land in suit is governed by the Non-agricultural Tenancy Act and not by Bengal Tenancy Act. Another application was filed under order 41 rule 27 of the Code of Civil Procedure for acceptance as additional evidence, the record-of-right. The learned Judge was of opinion that the defendants should be given a chance to file additional written statement and in that view of his finding the learned Judge set aside the judgment and decree passed by the learned Munsif and sent the case back on remand for giving chance to the defendant No. 1 for filing additional written statement. The learned Munsif was directed to accept the additional written statement if filed and after acceptance of the same the learned court was further directed to give chance to both the parties to adduce further evidence in support of their respective cases and then decide the matter in accordance with law. It was also ordered that per-chance the defendant does not file additional written statement, the learned Munsif will decide on the existing- record as to whether the pre-notifications transferred will be hit by the provisions Chapter VIIA of the Bengal Tenancy Act and then dispose of the matter. Being aggrieved by the aforesaid judgment passed by the learned Additional District Judge, the plaintiffs have come up to this Court.;