The State cannot vest land within the ceiling limit under Section 6(5) of the West Bengal Estates Acquisition Act, and must give the landholder an opportunity to retain the land up to the limit.

( 1 ) THIS appeal comes out of a suit for declaration and injunction. The plaintiffs preferred this appeal being aggrieved by and dissatisfied with the judgment and decree dated 17 th February, 1997 passed by the learned Assistant District judge 1st Court. Krishnanagar, Nadia in title Appeal No. 142 of (sic) 1986 reversing the judgment and decree passed by the learned Munsif, 1st Court, Ranaghat in Title suit No. 4 of 1979 on 26th May 1986.

( 2 ) THE case made out by the plaintiffs in the plaint is inter alia as follows :-Khitish Chandra Chaki, predecessor in interest of the plaintiffs was the owner of the suit property. Said Khitish Chandra chaki had got less than 25 acres of agricultural land. By B. R. Case No. 34 of 1968, revenue Officer passed an order that 2364 acres of land of Khitish Chandra Chaki to be vested in the State of West Bengal. BR case No. 14 of 1968 is illegal, invalid and without any jurisdiction. Khitish Chandra chaki and the plaintiffs filed Title Suit No. 162 of 1969. The defendant are claiming the suit property to be vested in the State of West bengal and are also making attempt to distribute the suit properly to others Notice under Section 80 of the Code of Civil Proce dure was duly served upon the State of West bengal but without any fruitful result. Hence the suit being Title Suit No. 4 of 1969 was filed.

( 3 ) THE defendants have contested the suit by filing written statement contending inter alia that the suit is not maintainable in its present form. The suit is barred by Section 34 of the Specific Relief Act and the suit is also bad lor want of a notice under Section 80 ol the Code oi Civil Procedure and the suit is also barred by Section 57b of the estate Acquisition Act. The defendants denied all the allegations of the plaintiffs. Khitish Chandra Chaki was asked to file 'h' form in the B. R. Case as he had more land than the ceiling limit but he did not file the same. All the lands of Khitish Chandi a Chaki were vested in the State of West Bengal and the suit property has been taken possession of by the State of West Bengal and at present also it is under the possession of State De fendant prays for dismissal of the suit with costs

( 4 ) ON the above pleadings the following issues were framed :1) Is the suit maintainable in its present form? 2) Is the suit land vested in the State of west Bengal ? 3) Have the plaintiffs any right, title, interest and possession over the suit land ? 4) Is notice under Section 80 of the Code of Civil Procedure served ? If so, is the same legal, valid and sufficient ? 5) Are the plaintiffs, entitled to a decree as prayed for ? 6) To what other reliefs, if any, are the plaintiffs entitled ?

( 5 ) THE learned trial Judge decreed the suit on contest but without any costs. It was declared that the plaintiffs have right, title and interest in the suit property. The defendants are restrained from disturbing plaintiffs' possession in the suit property.

( 6 ) TITLE Appeal No. 142 of 1986 was allowed by the appellate Court below on contest with costs against the contesting respondents. The judgment and decree accordingly passed by the learned trial Judge was set aside and the suit was dismissed on contest.

( 7 ) HENCE this second appeal.

( 8 ) BEFORE hearing the second appeal this court is to find out as to whether there is a substantial question of law involved in this second appeal.

( 9 ) ON perusal of the records of the case, the judgments and decrees passed by both the Courts below and the evidence on record this Court formulated the following substantial questions of law on which the learned counsel for the parties are to argue :1) Whether though the present suit properties were not included in Title Suit No. 162 of 1969 and the trial Court came to a specific finding on that the appellate Court below was justified in holding that the present suit is redundant in view of the fact that plaintiffs already got a decree. 2) Whether the appellate Court