R.N. Pyne, J. - (1.) The petitioners and the respondent No. 1 Kalipada Ghosh are all heirs of one Basanta Kumar Ghosh, deceased. Respondent no. 1 is the son of Basanta by his pre-deceased first wife. Petitioner no. 4 is the wife of Basanta and the other petitioners are his sons and daughters.
(2.) On 6th July, 1973 respondent no. 1 made an application before the Junior Land Reforms Officer, Habra-II (hereinafter referred to as J.L.R.O.) for recording himself as a bargadar under his father Basanta in respect of agricultural land measuring 1.28 acres of land in Dag no. 1852, 2640, 2641, 1708 and 2716 under Khatian no. 1093, Mouza : Guma, P.S, Habra, Dist. 24 Parganas under the Land Reformi Act, 1955 whereupon the said J.L.R.O. started Misc. Case No. 3/73-74 and passed a judgment and order on September 10, 1973 declaring the respondent no. 1 as bargadar under his father Basanta. It appears that on September, 1973 Basanta instituted a suit being Title Suit No. 427 of 1973 in the Court of the learned Munsif at Barasat for declaration of title and injunction in respect of the said land and got an injunction restraining the J.L R.O from recording the respondent no. 1 as bargadar and the respondent no. 1 from interfering with Basanta's possession in respect of the said land. It further appears that Basanta made an application in this Court under Article 226 of the Constitution being C.R. No. 1452(W) of 1975 challenging that the said J.L.R.O. had no jurisdiction to record the respondent no 1 Kalipada as a bargadar under his father Basanta. By the judgment and order dated 11th January, 1978 Amiya Kumar Mookerji, J dismissed the said application on the ground that J.L.R.O. was not competent to pass any order for recording under Section 50 of the Land Reforms Act His Lordship however made it clear that the parties would be at liberty to settle the disputes over the possession of the land in appropriate forum. Thereafter, Basanta died on 16th June, 8978. After Basanta's death the respondent no. 1 Kalipada made an application under Section 18(1) of the Act for protection against the eviction by the owners and for recording his name as bargadar in respect of the afore-a/d land before Bhagchas Officer, Habra-II, Guma, 24 Parganas. The Bhagchas Officer by his order dated April 21, 1978 held that the respondent No. 1 Kalipada had been actually cultivating the land for last 22 years as bargadar under his father Basanta who died on June 16, 1978. By the said order the respondent no. 1 Kalidas was declared as a bargadar in respect of the land stated in the schedule and it was further ordered that his barga cultivation was not to be disturbed by the owners. The respondent in the said proceedings i.e. the petitioners herein preferred an appeal against the said order of the Bhagchas Officer in the court of the Executive Magistrate, Barasat who by bis judgment and order dated September 12, 1978 dismissed the said appeal The Executive Magistrate held as follows "In discussing the main grounds of appeal, I though agree with the lawyer for the appellants that possession by some of the co-sharers amounts to possession by all the co-sharers, yet I find that Bargadar has been made statute in L.R. Act, and his right of possession cannot be over rided by the normal proposition of law for the co-sharers. In this case the respondent is no doubt a co- sharer of the suit land, but he is in addition claiming himself a Bargadar. So the general view of proposition of law will not be admissible in this case."
(3.) In this application under Art 226 of the Constitution the petitioner challenge the aforesaid orders of the Bhagchas Officer and the Executive Magistrate, Barasat.;