S.K.Datta, J. - (1.) This is an appeal by the plaintiffs against the appellate judgment and decree of affirmance dismissing their suit for khas possession and injunction.
(2.) The material facts alleged by the plaintiffs are as follows: (a) The suit land with an area of .06 decimal is comprised in Dag No, 2062 of Khatian No. 1114 under Khatian No. 1113 in Mouja Santragachi, Police Station-Jogacha, in the district of Howrah. (b) One Subodh Chandra Kundu had an occupancy raiyati jama of Rs. 15 appertaining to the said Khatian No. 1113, Mouja Santragachi under Hemangini Dasi. One Harimati Dasi took a bemiadi settlement from Subodh Chandra Kundu by a bemiadi kabuliyat dated January 5, 1937 (Exhibit 3) of 2 cottahs of Bastui land at a jama of Rs. 4 only and had been in possession by constructing kutcha structures thereon. (c) Due to the illness since 1937, Subodh could not attend the district settlement operations and in his absence Harimati and her son Kabul Chandra Malik (Defendant No. 2) caused incorrect recordings to be made in the record-of-rights in respect of her said jama, which was recorded in Khatian No. 1114 Dag No. 2062 as korfa under Section 48-C (c) and (d) of the Bengal Tenancy Act, 1885 with non-eject-able right. The record-of-right of Khatian No. 1114 is Exhibit 2 and the area was incorrectly recorded as .06 decimals in place of 2 cottahs. (d) After Harimati's death, the defendant No. 2 as her son and heir inherited the jama under the said kabuliyat, but though he had no transferable interest, he sold his interest in the said land to defendant No. 1. Such illegal sale without arrangement for payment of rent tanta-mounted to abandonment and relinquishment of the holding. (e) The plaintiffs are the executors to the will of late Subodh Chandra Kundu who died prior to 1938 and they along with pro forma defendants Nos. 3 and 4 are the legatees under the will. (f) The plaintiffs on the above allegations instituted Title Suit No. 281 of 1959 in the First Court of the Munsif at Howrah, claiming khas possession of the .06 decimals land comprised in Dag No. 2062 Khatian No. 1114. on declaration of abandonment and relinquishment of the tenancy of Harimati and on eviction of the defendants Nos. 1 and 2 therefrom, and on further declaration that title of the plaintiffs had not been affected by the West Bengal Estates Acquisition Act, 1954 Temporary injunction restraining the said defendants from building any pucca structure on the suit land and mandatory injunction directing removal of all the structures therefrom were also prayed for.
(3.) The suit was contested by the defendant No. 1 who denied the material allegations in the plaint. She contended that Harimati was a non-ejectable tenant, that the lands of .06 decimals would be near about 2 cottahs in local measurement, and also that the record-of-right in respect of Khatian No. 1114 was correct. It was further contended that the plaintiffs' title had vested in the State under the Estates Acquisition Act. 1953, and the suit was not maintainable by the plaintiffs. More, tile defendant No. 2 has transferable interest which was duly acquired by the defendant No. 1 by a registered conveyance dated June 15, 1959 and she was not liable to eviction,;