Judgment

K. RAMASWAMY, J.:- This appeal by special leave under Art. 136 of the Constitution arises against the order dated July 5, 1971 made by the Calcutta High Court in Civil Order No. 1826 of 1971 dismissing the writ petition in limine. The material facts are that the lands of Hal Plots Nos. 2202, 2204, 2206, 2209, 2210, 2212, 2214, 2219, 2220, 2225, 2226, 2228, 2229, 2232, 2233, 2234, 2236 and 2239 of Mouza Kishorimohanpore. J. L. No. 168, P. S. Jaynagar were recorded in the final Khatians Nos. 143 and 144 of J. L No. 168 as "Tank Fishery" (being used for pisciculture) and by operation of S. 6(l)(e) of West Bengal Estates Acquisition Act 1 of 1954, for short, the Act stand excluded from its purview. The Asstt. Settlement Officer initiated suo motu proceedings on May 14, 1968 that they have not been properly classified and prima facie require correction of classifications of those lands. Accordingly, he drew up the proceedings under S. 44(2A) of the Act, issued notice to the respondents who are brothers, intermediaries. They filed their written objections and appeared through counsel. They also filed the documents, examined three witnesses apart from themselves. On behalf of the State one Mr. Ranjit Kumar Dutta, Revenue Officer, Yadavpur Settlement was examined. The objections raised by the respondents are that the lands originally belong to Smt. Banodamayee Dasi, Superior Landlady, who granted to them dakhilas Nos. 9 and 10 in the year 1359 B.S. i.e. 1952 A.D. Thereafter they have been cultivating pisciculture in the said lands. They got embankment raised around the land. They have been conducting fishery business. In the fields survey the property was recorded in their names as the occupiers. On account of the injunction issued by the High Court the attestation in the original settlement was not effected. When they approached the Junior Land Revenue Officer for receipt of the rents after due enquiry by endorsement dated April 30, 1958 A.D., the Tehsildar made an endorsement on the body of the receipt "for pisciculture". They were conducting fishery on a large scale. They had applied to the Chief Minister Dr. B. C. Roy for a loan of Rs. 25,000/ -. An endorsement on the application was made by the concerned Secretary. When the miscreants sought to disturb the embankments, they made a complaint to the police, who initiated action in this regard. Agricultural Income-tax Department levied on them income-tax relying on pisciculture being done by the respondents.

2. The Asstt. Settlement Officer considered the entire evidence on record in great detail like Civil Court and held that the three witnesses examined in proof of the respondents conducting pisciculture in the disputed plots of lands are interested and brought up witnesses for the detailed reasons given in support thereof; the respondents did not produce the report of the Junior Revenue Officer who directed to accept the rents from the respondents. Admittedly, all the lands stood vested in the year 1955-56 in the State by operation of the notification issued under S. 4(l) of the Act. Though the settlement was stated to have been obtained from the Principal Landlady in the year 1952 (1359 B.S.), they did not produce any pre or post-settlement records for the period up to 1955-56, the year of vesting, to establish that the disputed lands are recorded as tank fishery Mr. R. K. Dutta examined on behalf of the State stated that he made local inspection on April 11, 1968 A.D. and found recorded the class of land in 18 Dags (Plots), Serial Nos.2202,2204,2206,2209,2210,2212,2214, 2219, 2220, 2225, 2226. 2228, 2229, 2232, 2233,2236, and 2239 within that Mouza. The present Dags (Plots) Nos. 2206, 2239, 2229, 2225, 2212, 2219, 2220 are small Dobas i.e. "ponds" and he did not find any sign of pisciculture in those plots. Plots Nos. 2210, 2209, 2233 and 2234 are blind canals. There was no connection whatsoever of those plots with river or big canals. He stated that there was water with