A.M. Sinha, J. - (1.) This is a, Second Appeal directed against the judgment and order passed by the learned District Judge, Burdwan, in Title Appeal No. 81 of 1972. The learned District Judge by his judgment in appeal affirmed the decision of the trial Court which dismissed the suit of the Plaintiffs being Title Suit No. 214 of 1969 in the Court of the Munsif, Kalna. The point for determination in this appeal is whether a big raiyat could retain a particular piece of land which he had not opted to retain or whether retention could be allowed even though option is not exercised, when such land and the land under retention taken together do not exceed the ceiling limit prescribed under the West Bengal Estates Acquisition Act, 1953.
(2.) The relevant facts for the purpose of determination of the points at issue are as follows: The suit land covered by Dag No. 3566, Khalian No. 266 of Mouza Baghasan belonged to Defendants Nos. 2 and 3 who are big raiyats. The Plaintiffs purchased such plot of land measuring 19 acres in area by two registered kobalas dated July 16, 1957 and August 6, 1957. They entered into possession of such land after their purchase. It was represented by their vendor that this land was retained by them and in case such land be found to have been vested in the. State, they would surrender other lands retained by them and would retain the suit land for the benefit of the purchasers. In spite of such representations, it was found later by the Plaintiffs that the suit land was shown in the R.S. record as vested land. So they preferred an objection under Sec. 44(2a) of the West Bengal Estates Acquisition Act. The Revenue Officer found the possession of the Plaintiff in the suit land but recorded the same as beaini or in illegal possession on the basis of registered kobalas of the year 1957. The State of West Bengal, it is stated, in spite of all these facts threatened to dispossess the Plaintiffs and issued notice under Sec. 10(2) of the said Act. So the Plaintiffs were obliged to bring the suit against the State of West Bengal after service of notice under Sec. 80 of the Code of Civil Procedure.
(3.) The State of West Bengal contested the suit by filing written statement. Their only defence is that the vendors of the Plaintiffs, namely the Defendants Nos. 2 and 3 were big raiyats and big raiyats proceedings were started against them. Those proceedings were disposed of on the basis of 'B' Form return submitted by them. It is alleged that the suit land was not shown as retained land of the vendors. According to the State of West Bengal, the suit is not maintainable as the Plaintiffs could not acquire right, title and interest in the land vested in the Stale. The learned Munsif accepted the defence case and dismissed the suit. Being aggrieved by such judgment and decree of dismissal the Plaintiffs moved in appeal before the learned District Judge.;