Banana and bamboo gardens are agricultural lands and cannot be retained as orchards under Section 6(1)(f) of the West Bengal Estates Acquisition Act, 1953.

( 1 ) THE defendant, the State of West Bengal, has preferred this second appeal against the judgment and the decree passed by a Subordinate Judge, Alipore affirming those of the Munsif of the Additional Court at Sealdah in a suit brought by the respondent Mir Fakir Mohammad. The suit was brought for a declaration that the suit lands were orchards and that he was entitled to retain the same under the provision of the West Bengal Estates Acquisition Act, 1953 amongst other reliefs. The plaintiff got the decree against the State of West Bengal and in the first appeal taken by the State, the appellant was unsuccessful.

( 2 ) THE allegation of the plaintiff, in short, is that he is in possession of agricultural lands. The draft record of the recent revisional settlement prepared by the State Government was on the basis of the cadestral survey records published long ago showing the lands as agricultural. After the publication of the said C. S. records, the plaintiff converted some of his danga lands into gardens by planting fruit trees, banana plants and bamboos and he has been in possession of the same for more than 30 years as such. The suit was instituted on 20-7-1960. It is stated in the plaint that due to his mental unrest on account of promulgation of the Estates Acquisition Act, 1953 and also on account of his ignorance of law, he included the suit lands as agricultural lands in the 'b' form prescribed under the law. The inclusion of these lands was due to mistake. In fact, according to the provision of the West Bengal Estates Acquisition Act he is entitled to retain them and as such he wanted to amend the 'b' form to exert his right of retention of the lands in question. As the prayer of the plaintiff was refused, he now prays in this suit for declaration that the lands in question are orchards and non-agricultural lands so as to be retained by the plaintiff according to the law. The State appeared and contested the suit on the allegation that the lands in dispute were not gardens or orchards, but in fact, they were agricultural lands. The case of the defendant further is that those lands have already vested in the State and cannot be retained by the plaintiff under the law.

( 3 ) THE only question that has been agitated before me is whether or not the disputed lands can be called orchards or non-agricultural lands as alleged by the plaintiff. Both the Courts below have held that the suit lands were not agricultural lands. The trial Court held that bamboo gardens were non-agricultural land and banana gardens were orchards. The First Appellate Court below was of the view that the suit lands were orchards. Mr. Pal, the learned Advocate appearing on behalf of the appellant has mainly attacked the findings of the Courts below on two grounds. The first point of attack is that both the Courts below failed to read the plaintiff's case as made out in the plaint which was changed at the time of hearing and to read correctly the evidence on record. The second point is that even according to the case of the plaintiff and the materials on record, the suit lands ought to have been held to be agricultural lands and not orchards or gardens. Mr. Lala appearing on behalf of the respondent has contended that the findings of both the Courts are based on records and arrived at on proper appreciation of the case of the parties.

( 4 ) COMING to the first point raised by Mr. Pal, we find from the reading of the plaint that the suit lands were agricultural lands upto the publication of the C. S. records of right, but subsequently the plaintiff converted the suit lands into gardens by planting fruit trees, banana plants and bamboos. The plaintiff, since then, has been possessing those lands as gardens or orchards for more than 30 years. This is the specific fact pleaded by the plaintiff. It has been alleged that due to some mistake of law, he wrongly included the disputed lands in 'b' form under the wrong impression that thes