ASWINI KUMAR ROY Vs. SURUPA ROY

JUDGEMENT

(1.) The plaintiff have alleged that they are the 8 annas cosharers of the disputed jalkar described in schedule of the plaint. The proforma defendant nos. 5 to 11 and 20 are the remaining 8 annas owners of that tank fishery. Proforma defendant no. 5, Kanak Prova, executed a registered lease dated 3rd February, 1948, for a period of 41 years and took a temporary lease of that jalkar jama at an annual of Rs. 15(- for the period from 1355 B.S. to 1396 B. S. They also have retained that tank fishery by submitting a pro per return and it did not vest in the State of West Bengal, defendant no. 4. The jalkar has been recorded in the R. S. Khatian. But there is a wrong entry therein that the interest of plain- tiffs' and of their co-sharers had vested in the State. On the 3rd September, 1962, Kanak Prova executed a registered sale deed in favour of principal defendants nos. 1 to 3 regarding that jalkar. Since then, the defendants nos, I to 3 are in actual possession of that jalkar. She illegally set. up the State of West Bengal as her landlord in that kobala. So, a cloud has been cast on the plaintiffs' title. The suit is for a declaration that the plaintiffs and proforma defendant no. 5 to 11 and 20 are the 16 annas owners of the tank in question, they are entitled to the rent of that tank from defendants nos. 1 to 3, for a further declaration that the tank fishery did not vest in the State of West Bengal and as such the entry in the R. S. Khatian is erroneous. A further prayer is to recover khas possession of the tank after the expiry of the term of the lease.

(2.) Proforma defendants nos. 1 to 3 filed a written statement. The defence is that the plaintiffs and their co-sharers granted a lease of the water of the tank and its sub-soil to proforma defendant no. 5. They were interme diaries. The tank fishery duly vested in the State of West Bengal and the plaintiffs have no title. The entry in the R. S. Khatian about vesting is correct. Proforma defendant no. 5 held the lease immediately before the date of the vesting. That lease shall be deemed to have been granted by the State Government on the same terms and conditions. Consequently, she became the latter's direct tenant thereof under the same terms and conditions. The suit is not maintainable .

(3.) The learned Munsif rejected the plaintiffs' version and dismissed the suit. The plaintiffs filed an appeal. The appellate court affirmed the findings of the learned Munsif, stated that the property duly vested in the State and hence the plaintiffs appellants could not get any relief. The present second appeal has been filed by the plaintiffs.