The main legal point established in the judgment is the importance of urgency in filing a suit, the requirement for notice under Section 80(2) of CPC, and the proper consideration of the fact-situation involved in the suit, along with the revenue officer's duty to determine the nature and character of the suit property in accordance with the provisions of the West Bengal Land Reforms Act.

SAHIDULLAH MUNSHI, J.

1. This second appeal is at the instance of the plaintiffs/appellants against a judgment and decree dated 10th April, 1987, passed by the subordinate Judge, Katwa, in Title Appeal No.208 of 1985, reversing those dated May 23, 1985, passed by the learned Munsiff, 1st Court, Katwa, in Title Suit No.537 of 1983, directing return of the plaint to the filing Advocate.

2. The plaintiffs filed a suit for declaration and permanent injunction against the defendant/State of West Bengal, praying, inter alia, that the plaintiff No.1 was the owner and possessor of the properties mentioned in the schedule of the plaint at Mouza Gobardhanpur, P.S. Mongolkote. It was also a case made out by the plaintiff no.1 that he had no land above the ceiling prescribed under the West Bengal Land Reforms Act and that ‘kha’ scheduled property given by the plaintiff no.1 to the plaintiff nos.2 to 4 by a registered deed of family settlement dated 22nd March, 1975 and they have become the owner and possessor of those properties. According to the plaint case, plaintiff nos. 2 to 4 were the owner and possessor of ‘ka’ scheduled property and plaintiff nos. 2 to 4 were the owner and possessor of ‘kha’ scheduled property. On 15.02.1971, plaintiff no.1 had no agricultural property except ‘ka’ and ‘kha’ schedule. It is the plaintiffs’ case that the ‘uma’ schedule property is situated within irrigated area and ‘kha’ scheduled property does not get any irrigation facility. According to the provisions of West Bengal Land Reforms Act, none of the family members was a raiyat. Therefore, it is the contention of the plaintiff that he had no agricultural property above the ceiling limit prescribed under the West Bengal Land Reforms Act and, therefore, question of filing return by submitting 7A Form to retain the scheduled property did not arise and he had no such need to do so. Inasmuch as, the State of West Bengal was taking steps to distribute the land considering the same had vested to the State, the plaintiff filed the suit under Section 80(2) of the Code of Civil Procedure and under compulsion he had to avoid service of two months’ notice as prescribed under Section 80 of the Code of Civil Procedure.

3. The defendant/State of West Bengal contested the suit by filing written statement denying material allegations of the plaintiffs made in the plaint. In short, the defence case is that the plaintiffs have no cause of action for the suit, suit was not maintainable in the form it was filed; suit is barred by limitation; suit is barred by principles of waiver; estoppels; acquiescence and is hit by Section 34 of the Specific Relief Act and is also bad for want of sufficient notice under Section 80, C.P.C.

4. On the pleadings of the parties, following issues were framed :

(1) Is the suit maintainable in its present form?

(2) Is the suit barred by limitation?

(3) Is the suit barred by the principles of estoppels, waiver and acquiescence?

(4) Is the suit hit by Section 34 of the Specific Relief Act?

(5) Is the suit bad for want of valid and sufficient notice under Section 80, C.P.C.?

(6) Is the vesting order wrong, erroneous, illegal, void and without jurisdiction?

(7) Have the plaintiffs alleged their right, title and interest in the suit lands?

(8) Are the plaintiffs entitled to get decree for declaration and for permanent injunction as prayed for?

(9) To what other relief, if any, are the plaintiffs entitled to?

5. The second appeal was admitted by an order of 17th September, 1987 wherein the Hon’ble Division Bench held that: “The appeal would be heard on all the grounds taken in the Memorandum of Appeal.” On scrutiny of the said grounds it appears that the following substantial questions of law emanate from the said grounds :

I. Whether the Court of appeal below substantially erred in law in allowing the appeal on the ground that the suit was bad for want of notice under Section 80(1) of the Code of Civil Procedure even though the specific leave was gran