An intermediary cannot revise or alter his choice in respect of land, which he previously retained and transferred to a third party in a subsequent return submitted after insertion of Rule 4A.

This appeal is directed against the judgment and decree dated 3.12.75 passed by the learned District Judge, Murshidabad in Title Appeal No. 281 of 1972 setting aside the judgment and decree dated 15.7.72 passed by the learned Munsif, Additional Court, Kandl in Title Suit No. 12 of 1972.

2. The admitted facts are that the suit-land originally belonged to Sisir Kumar Mukherjee, predecessor-in-interest of respondent nos. 2 to 13, who held the same as a raiyat. He had in his possession agriculture land exceeding the limit of 25 acres. He submitted a return in ‘B’ form under to a 6(5) of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the ‘Act’). In 1956 and thereby opted to retain some lands including the suit land. A Khanda Khatian was accordingly prepared and the rent was assessed at Rs. 27.22 for the retained lands. Thereafter by a registered sale deed dated 14.5.57 he sold the suit-land to the plaintiff appellant for valuable consideration. By a government notification dated 21.1.58, Rule 4A was inserted in the West Bengal Estates Acquisition Rules thereby prescribing a procedure for choosing lands which an intermediary is entitled to retain under s. 6 of the Act. The said Sisir Kumar Mukherjee being a big raiyat, a case was started against him by the Revenue Officer for ascertaining the land which he was entitled to retain under the Act and in the proceeding he submitted afresh a return in 'B' form on 15.4.58 under Rule 4A and thereby chose to retain some lands but excluding the suit land. A new Khanda Khatian was created cancelling the previous one and the suit land was shown as vested land Defendant No. 1. State of West Bengal, refused to accept rent from the plaintiff after 1372 B.S. The plaintiff, therefore, instituted the suit for declaration of title and permanent injunction restraining the State of West Bengal from interfering with his possession of the suit land.

3. The learned Munsif has found that as the plaintiff's vendor duty retained the suit land by submitting a ‘B’ form under s. 6(5) of the Act in 1956 and thereafter transferred the suit-land to the plaintiff in 1957 for valuable consideration, the plaintiff has acquired right, title and interest to the suit-land and he cannot be divested of his title by a fresh exercise of option by submitting ‘B’ form under Rule 4A in 1958 excluding the suit property. Plaintiff's vendor should not be allowed to practise fraud upon the plaintiff and the statute. In the opinion of the Learned Munsif the suit-land already retained and sold by the plaintiff's vendor who was a big raiyat ought to have been treated as retained by him in the subsequent proceeding under s. 6 of the Act. According to the Learned Munsif, other Khas land retained by the vendor of the plaintiff equal to the amount of the suit land ought to have been deducted and shown as vested land. The learned Munsif accordingly passed a decree in favour of the plaintiff.

4. In the appeal preferred by the State of West Bengal, the learned District Judge who heard the appeal took a contrary view Relying upon the decision of a Division Bench of this Court in the case of Lakshmi Narayan Roy v. Land Reforms Officer & ors. (1975(2) Calcutta Law Journal 326) he has held that an intermediary who has filed choice earlier can claim a further right to revise his option and file a fresh return in the prescribed form or manner under Rule 4A. The return filed earlier under s. 6(5) is not unauthorised but the subsequent insertion of Rule 4A and form gives him a further right and opportunity to amend, elect or alter his choice and to file a return in the prescribed manner or form within the time prescribed in the Rule Plaintiff's vendor Sisir Kumar Mukherjee had, therefore, every right to file a revised return in form ‘B’ after Rule 4A came into operation and the return in ‘B’ form filed by him on 15.4.58 (Ext D) must prevail over the return which he had filed on 1.3.56 (Ext E/1). The plaintiff, theref