Tarun Kumar Gupta, J.
The plaintiffs are the appellants against a judgment of reversal.
The appellants along with respondent No.7 Nurul Islam filed a suit being Title Suit No.224 of 1971 in the Court of learned Munsif, First Court, Arambagh. The plaintiffs’ case, in short, may be summarized as follows:-
The properties described in item No.1 of the schedule ‘Ka’ appertaining to Khatian No.252 originally belonged to Alahi Box Chowdhury who gifted the same along with other properties to his son proforma defendant No.2 by a deed of gift dated 20th Aswin, 1345 B. S. (1937). Said proforma defendant No.2 sold away the same to the plaintiffs’ father and predecessor Munsi Rahim Box by a registered sale deed dated 7th of March, 1943 (23rd Shravan, 1949 B. S.). The properties described in item No.2 of the ‘Ka’ schedule originally belonged to one Abdulla Chowdhury. On his death the same devolved upon his wife and heirs who sold the same to plaintiffs’ predecessor Munsi Rahim Box who came into possession of the same. The ‘Kha’ schedule land belonged to Munsi Rahim Box who died in 1947 leaving behind plaintiffs as his heirs. ‘Kha’ schedule land duly recorded in the name of plaintiffs in the R. S. Khatian. However, the ‘ka’ schedule land was erroneously recorded in R. S. Khatian in the name of Performa defendants though they never claimed to said properties. The properties described in ‘Ga’ schedule of the land belonged to plaintiffs’ predecessor Munsi Rahim Box. The plaintiffs became owners of the same on his death.
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Plaintiff Nos. 5, 6 and 7 relinquished their share in said property in favour of plaintiff No.1-4. The R. S. record was accordingly recorded in the name of plaintiff Nos. 1-4 only. The mother of plaintiff No.7 died in 1964 and she made an oral gift of her share to her only son i.e., plaintiff No.7. The plaintiff Nos. 1 –6 and mother of plaintiff No.7 filed B-Form and duly retained the suit lands. But since June – July, 1968 the Defendant State threatened the plaintiffs by declaring that the suit lands have been vested under Section 10(2) and that possession of the same would be taken under Section 10(1) of the West Bengal Estate Acquisition Act. The plaintiffs again filed B-Form on 8th July, 1968 to avoid trouble but the local J. L. R. O. declared that the suit lands have been vested under Section 10(2) of the West Bengal Estate Acquisition Act. The plaintiffs again filed B-Form on 18th May, 1971 but without any result. Under these circumstances the plaintiffs have filed the suit for declaration of their title, injunction and other consequential relief’s after giving statutory notice under Section 80 of the Code of Civil Procedure to the defendant State.The Defendant State contested the suit by filing written statement denying material allegations of the plaint and contending inter alia that the suit lands other than the retained lands being lands of intermediary duly vested to the State as per law. It is further case that the appropriate proceedings under Section 10(2) of the Act were initiated against the recorded intermediaries and that the possessions were accordingly taken and that the suit was barred under Section 57 B(1) of the Estate Acquisition Act.After contested hearing learned Trial Court decreed the suit. The defendant State preferred an appeal being Title Appeal No.215 of 1979. After contested hearing learned Lower Appellate Court allowed the appeal by setting aside the judgment and decree of learned Trial Court by the impugned judgment and decree dated 3rd of January, 1983.Being aggrieved the plaintiffs have filed this second appeal.The appeal was heard on the following substantial question of law.(1) Whether learned Lower Appellate Court substantially erred in law by declaring that the suit was barred under Section 57(B) of the West Bengal Estate Acquisition Act without applying the correct legal test.Learned counsel for the appellant plaintiffs submits that learned Lower Appellate Court substantially erred in law by declaring the suit to be barred under Section 57 (B) of the West Bengal Estate Acquisition Act, 1953 (henceforth to be referred as Act of 1953). According to him, the suit lands were retained lands of the plaintiffs who got the same from the predecessor-in-interest. According to him, as the respondent State threatened to take possession of the same in June – July, 1968 alleging that the same to be vested lands, the plaintiff appellants again filed B-Form on 8th July, 1968. He submits that in spite of filing of said B-Form the threatening on the part of respondent State of taking possession of the same being vested lands continued, and for which the plaintiff appellants further filed B-Form on 18th May, 1971. He further submits that as the threatening still continued the plaintiffs were compelled to file the suit for declaration of title, injunction and other consequential reliefs after giving statutory notice under Section 80 of the Code of Civil Procedure to the defendant State.In this connection he submits that as said threatening of the defendant State clouded plaintiffs’ title relating to the suit properties described in the schedules of the plaint they came to a Civil Court for declaration of their title, injunction and for other consequential relief’s. According to him, under these circumstances the jurisdiction of the Civil Court is not barred under Section 57 (B) of the Act of 1953. In support of his contention he refers case laws reported in 1975 (2) CLJ page 246 (Tarak Chandra Dholey vs. Satyanarain Singh & Another), 1975 (1) CLJ page 382 (Ram Barai Shaw vs. Sm. Bibhabati Basak & Ors.), 1975 (2) CLJ page 326 (Lakshmi Narayan Roy vs. Land Refors Officer & ors.) and 75 CWN page 228 (Mohan Lal Gupta vs. Achhulal Saha). Learned counsel for the plaintiffs / appellants next submits that so long the intermediaries have not delivered possession to the State under Section 10(2) of the Act of 1953, they have right to retain land by filing B-Form even beyond the prescribed time. According to him, the alleged possession in respect of the lands of Khatian No.259 (Schedule ‘Ga’) were taken on 11th of July, 1971 though the plaintiffs filed B-forms before 1968 then again on 8th July, 1968 and lastly on 18th May, 1971. According to him, as plaintiffs filed said B-forms before taking said alleged possession on 11th July, 1971 the defendant State was debarred to take any action regarding taking of alleged possession as B-form have already been filed by the plaintiffs. In support of his contention he refers case laws reported in 67 CWN page 12 (Gour Gopal vs. State of W. B.) and (1993) 2 CAL. LT. page 56 (The State of West Bengal & Ors. vs. Arun Kumar Basu & Anr.)Learned counsel for the respondent / State, on the other hand, submits that in terms of Section 4 read with Section 5 of the Act of 1953 the estate of intermediaries vested to the State free from encumbrance having only right of retention of the lands within the prescribed ceilings under Section 6(2) of said Act of 1953. According to him, said option of retention by filing B-Form was required to be made within the prescribed time limit i.e., 30th of April, 1958. According to him, admittedly the plaintiff appellants failed to show that they filed any such B-Form before 1968. According to him, plaintiffs filed said B-Form praying for retention of the lands only in 1968 i.e., much after the prescribed time limit of 30th April, 1958. In this connection he further submits that even then those were considered and disposed of by the defendant State as per law and thereafter it was declared that all the suit lands except lands of Khatian No.272, Khatian No.370 and Khatian No.194 which were retained lands of plaintiffs as the ‘Dakhilakar’, were vested lands.He next submits that in the plaint the plaintiffs prayed for declaring that the entries in the record of rights as erroneous, and that the order of vestings was illegal and not binding upon them. According to him, said prayers are barred under Section 57 (B) of the Act of 1953. According to him, the suit was not maintainable as it was framed on that score. According to him, the suit being barred under Section 57 (B) of the Act of 1953 learned Lower Appellate Court did not commit any wrong by setting aside the judgment and decree passed by learned Trial Court in favour of the plaintiffs. In support of his contention he refers case laws reported in AIR 1993 Supreme Court page 2103 (State of West Bengal and others vs. Suburban Agriculture Dairy & Fisheries Pvt. Ltd. and another) and 1976 (1) CLJ page 470 (Sideswar Biswas & Anr. Vs. State of West Bengal and Anr.).I have considered the submissions made by learned counsels of the parties. I have also considered the case laws referred by the rival parties. It has consistently been decided by this Court through various judgments, some of which have been referred as stated above, that a suit in which the right to property is contested is a suit of civil nature and that the Act of 1953 in general and Section 57 (B) thereof in particular does not either expressly or even impliedly barred the jurisdiction of civil courts to try such suits, merely because the correctness of an entry or entries in record of rights might incidentally be one of the issues in the suit. It was further held that though a time limit namely 30th April, 1958 was prescribed in the Act of 1953 for exercising the choice of retention of lands by the intermediaries by filing B-Form but said time limit is not final in all cases. According to the Hon’ble Court even after said prescribed date (30.04.1958) the intermediary has right to file B-Form for retention of his land provided the possession of the same was not taken by the State by that time. It was also held that if it can be shown by an aggrieved party that the rule of law was not followed in the matter of passing orders of vesting his land or taking away possession of the same then also Civil Court has right to entertain such grievance and that Section 57 (B) of the Act of 1953 will not stand in the way.The B-Form is required to be filed by an intermediary for retention of his lands as the land of intermediary are liable to be vested to the State in terms of Sections 4 and 5 of the Act of 1953 on and from the prescribed date of publication. Admittedly, present plaintiff appellants claimed to file B-Form even before 1968 for retention of the suit properties. Though they could not file any document to prove the same but it amply showed that they were intermediaries otherwise there was no need for filing of any B-Form for retention of any land. As per admission of the plaintiffs appellants they again filed B-Form on 8th of July, 1968. It appears from the materials on record that the Respondent State received the B-Forms on 10th of July, 1968 wherein the plaintiffs prayed for retention of the lands as per prayers made in the B-Form. It appears from the documents filed from the side of the respondent State that notice under Section 10 (2) were issued on 25.03.1971 and that on the ground of non-receipt of any objection some of the suit lands were taken in possession by the State on 11.07.1971.It appears from the documents filed by the defendant State which were marked exhibits in the suit that the notices under Section 10(2) of the Act of 1953 which were issued on 25.03.1971 were served upon some of the plaintiffs and that in spite of said service no step was taken from the side of the plaintiffs to raise any objection against said notices of vesting. Under Section 114(E) of the Indian Evidence Act it has to be presumed that official acts have been performed as per law in absence of any evidence to the contrary. It is true that said presumption is rebut table. But the onus is upon the person who has challenged said presumption. No explanation is coming from the side of the plaintiffs as to why they did not file any objection against said notice and why they did not appear before the appropriate authority for hearing of the matter. It is true that after receipt of said notice dated 25.03.1971 the plaintiffs again filed B-Form on 18th May, 1971 and learned counsel for the plaintiff appellants has tried to argue that as said subsequent B-Forms were filed on 18th of May, 1971 i.e., before taking alleged possession by the State on 11.07.1971, said taking of possession was bad in law as B-Forms were filed by the plaintiffs before said taking of possession. In this connection learned counsel for the plaintiff appellants tried to take advantage of the case laws of Gour Gopal (supra) and Arun Kumar Basu (supra). In those case laws it was held by this Court that though a time limit i.e., 30th April, 1958 was prescribed in the Act of 1953 for exercising the choice of retention of lands by the intermediaries by filing B-Form but said limit was not final and that the intermediaries can retain their lands by filing B-Forms even after over of said prescribed date before taking possession by the State. But said propositions of law should not be stretched too far to hold that whenever State will give notice under Section 10(2) of the Act of 1953 after receipt of B-Forms from the intermediary, the act of State for taking possession of the lands will be nullified only because the intermediary has again filed a B-Form before the date of said taking of possession by the State. On the other hand, if the above propositions of law as laid down by those referred case laws are tried to be applied at the time of filing of subsequent B-Forms by the intermediary then the very object of the Act of 1953 would be nullified as the intermediaries will go on filing one B-Form after another whenever they receive any notice from the State for vesting of their excess land. As such, the filing of B-Forms again by the plaintiffs on 18th May, 1971 has no bearing in the case. learned Lower Appellate Court has rightly held that the plaintiffs failed to make out any case of violation of natural justice by the defendant State either by issuing said notices under Section 10(2) of the Act of 1953 or by taking possession of the land in 1971. In view of the facts and circumstances of the case as stated above, I am of the opinion that learned Lower Appellate Court rightly held that the plaintiffs were not entitled to challenge the action of the defendant State regarding taking of possession as per law before the Civil Court and that the plaintiffs should have moved the prescribed Forum under the Act of 1953.However, I am in agreement with the learned counsel for the plaintiff appellants that as the defendant State admitted some of the suit properties as retained lands of the plaintiffs, learned Lower Appellate Court was wrong in dismissing the suit altogether treating the entire suit being barred under Section 57(B) of the Act of 1953. If in a suit there are several prayers and some of the prayers cannot be entertained but the remaining prayers are severable then there is no bar to allow those prayers which are legally entertain able. In the written statement the defendant State admitted that plot No.832 and 832/1008 under Khatian No.272 and suit plot Nos. 785, 778, 774 and 772 under Khatian No.194 both coming under the ‘Kha’ schedule were ‘ryotis smritiban’ and retained lands of the plaintiffs. As such, plaintiffs appellants were entitled to get a decree for declaration of title and injunction so far as those lands are concerned. As such, the appeal may be allowed in part.Accordingly, the appeal is allowed in part on contest but without cost. The plaintiffs / appellants do get a decree for declaration of title relating to suit plots appertaining to Khatian No.272 and Khatian No.194 being part of ‘Kha’ schedule property and the defendant State is hereby restrained from interfering with peaceful possession of the plaintiff appellants in those suit plots.A decree be drawn up accordingly.Send down Lower Court records along with a copy of this judgment to the Lower Court at the earliest.Urgent Photostat certified copy of this judgment be supplied to learned counsels of the parties, if applied for.