JUDGMENT This Rule at the instance of the State of West Bengal and the Junior Land Reforms Officer, Jaynagar (II) arises out of a determination dated 2nd April, 1969 made by the learned Additional District Judge, 9th Court, Alipore in Estates Acquisition Appeal No. 35 of 1968, whereby he has allowed the said appeal after reversing the order of the Assistant Settlement Officer dated 25th April, 1968. It appears that a suo moto proceeding under Section 44 (2a) of the West Bengal Estates Acquisition Act in case No. 169 of 1967 was started by the Assistant Settlement Officer as, on scrutiny of records, it appeared to him that:- (a) Haji Khoda Bux Ghorami was the original owner of 8 annas share of Hal Khatian Nos. 104 and 108 of Mouza Meragunge, J.L. No. 116 and that the lands recorded in Hal Khatian Nos. 53,54,55 and 232 (Sabek khatian Nos. 9, 39, 147 and 227 respectively) of Mouza Dakshin Garankathi, J.L. No. 152, Police Station-Joy nagar, originally belonged to him; (b) during the attestation stage of the revisional Settlement operation, 8 annas share of khatian Nos. 104 and 108 of Mouza Meragunge, J.L. No. 116, was recorded in the name of Musammat Chebera Khatun Bibi, wife of Haji Khoda Bux Ghorami ; (c) lands recorded in Sabek khatian Nos. 9, 39, 147 and 227 of Mouza Dakshin Garankathi, J.L. No. 152 in the name of Haji Khoda Bux Ghorami were not found to have been recorded in Hal khatian Nos.53, 54, 55, 336, 337 and 232 in the names of three sons of Haji Khoda Bux Ghorami, namely, Taher Ali Ghorami, Abdul Malik Ghorami and Abdul Rashid Ghorami ; (d) it was stated that Haji Khoda Bux Ghorami made an oral gift of 8 annas share of khatian Nos. 104 and 108 of Mouza Meragunge, J. L. No. 116, Police-Station Joynagar, in favour of his wife Chebera Khatun Bibi in lieu of Den Mohar (Dower) in the year 1357 B. S. Accordingly, the name of Chebera Khatun Bibi was recorded in respect of 8 annas share of khatian Nos. 104 and 108 of Mouza Meragunge in place of Haji Khoda Bux Ghorami in the present Revisional Settlement Operation. It was also stated that Haji Khoda Bux Ghorami settled 23.99 acres of land of Hal Khatian Nos. 104 and 108 of Mouza Meragunge in place of Haji Khoda Bux Ghorami in the present Revisional Settlement Operation. It was also stated that Haji Khoda Bux Ghorami settled 23.99 acres of land of Hal Khatian Nos. 54 and 232 of Mouza Dakshin Garankathi J. L. No. 152 with his son Taher Ali Ghorami by if registered Patta No. 3474 dated October 27, 1949. Later on, Khoda Bux Ghorami executed one registered sale deed No. 4062 dated November 20, 1954 by which he sold out the superior interest of this new holding to his said son Taher Ali Ghorami. Thus, the subordinate interest of the holding merged with the superior interest. But in the present Revisional Settlement record-of-rights the subordinate holding was recorded in khatian Nos. 336 and 337 under khatian Nos. 54 and 232 respectively in the name of the said Taher Ali Ghorami. Haji Khoda Bux Ghorami also executed a registered hebanama deed on April 2, 1951 in respect of 17.48 acres of land of Hal Khatian No. 55 in favour of his another son Abdul Malik Ghorami. Similarly, Haji Khoda Bux Ghorami executed another registered hebanama deed No. 189 dated April 2, 1951 in respect of 4.01 acres of land of Hal Khatian No. 53 and 13.49 acres of land of Hal Khatian No. 55 of Mouza Dakshin Garankathi, J. L. No. 152. in favour of his another son Abdul Rashid 9horami. Such proceedings, it has been alleged, were initiated for the purpose of checking up the propriety of records in Hal Khatian Nos. 104 and 108 of Mouza Meragunge, J. L. No. 116 in the name of one Chebera Khatoon Bibi and the recordings in Hal Khatian Nos. 53, 54, 55, 232, 336 and 337 in the names of Taher Ali Ghorami, Abdul Malik Ghorami and Abdul Rashid Ghorami. 2. On receipt of tae notices of the suo moto proceedings the same was contested by the opposite parties herein and the parties to the said proceedings adduced their respective evidences and it appears that on such evidence it was found amongst others, that the disputed lands remained in possession of Haji Khoda Bux Ghorami even after the execution of the deeds in question. Abdul Malik Ghorami in his deposition stated that his father died about 8/10 years ago and about 2 years before the said death his eldest brother was separated and the other two brothers and their mother were in the same mess till her death. Although the deeds of transfer, in question were executed by Haji Khoda Bux Ghorami in 1949-51, the lands were really in his possession and at that time all the three sons and wife were with him in one and the same family. 3. Regarding the 8 annas share of Hal Khatian Nos. 104 and 108 of Mouza Meragunge recorded in the name of Chebera Khatoon Bibi the contentions of the contesting parties were that Haji Khoda Bux Ghorami made an oral gift in the year 1357 B.S, in favour of his wife in lieu of Den Mohor and the recordings in question were made on the basis of the said gift. It has been alleged that no evidence was, however, adduced in respect of the execution of the said gift and the only evidence was the rent receipt for the period from 1360 and 1361 B. S. in the name of Chebera Khatoon Bibi. Regarding the recordings of Khatian Nos. 336 and 337 of J. L. No. 152 it was admitted by the parties in suit that the said recordings were erroneous. It was also found that Taher Ali Ghorami created subordinate tenancies" under Khatian Nos. 54 and 232 of J. L. No. 152 in his own name and that too for the purpose of retaining the land under Section 6 (1) (2) of the Act for the purpose of getting compensation for the rent receiving interest. It has also been admitted by the partition suit' that Taher Ali Ghorami had already refunded the amount of compensation paid to him for vested interests of the said Khatian. It was also admitted by the parties in suit that Haji Khoda Bux Ghorami was the owner of about 250 bighas of land and he used to pay Agricultural Income-tax and it has further been found that by showing the deeds of transfer as mentioned hereinbefore after the death of Haji Khoqa Bux Ghorami, his sons got the benefit of exemption from the payment of Agricultural Income-tax. The rent receipts as mentioned hereinbefore were not relied upon by the Assistant Settlement Officer inasmuch as they appeared to him not to be genuine. 4. In such circumstances, the Assistant Settlement Officer came to the findings that the disputed lands belonged to Haji Khoda Bux Ghorami, who created the deeds of transfer in question in favour of his sons and wife for the sole purpose and object of evading Agricultural Income-tax and the said documents were sham and fraudulent, and furthermore they were not acted upon. Thus the Assistant Settlement Officer by his order No. 12 dated 25th April, 1968 was pleased to direct correction of the relevant record-of-rights in the following manner :- (a) The name of Chebera Khatun in respect of 8 annas share of khatian Nos. 104 and 108 of Mouza Meragunge will be expunged and the same will be recorded in the name of Haji Khoda Bux Ghorami (deceased) with his three sons as his heirs: Similar corrections will be made in the Khanda Khatian Nos. 1406 and 1408 of Mouza Meragunge. (b) In Mouza Dakshin Garankathi. J.L. No. 152, in the name of Taher Ali Ghorami will be expunged from Column No. 13 of Khatian Nos. 54 and 232. (c) The name of Abdul Rashid Ghorami from Khatian No. 53 and the names of Abdul Rashid and Abdul Malek from khatian No. 55 will be expunged and the recording in the name of Haji Khoda Bux Ghorami (deceased) will be restored with his three sons as his heirs. Khatian Nos;. 336 and 337 will be treated as cancelled, and they will be Ija Khatians of khatian Nos. 54 and 232 respectively. 5. From such determination, Estates Acquisition Appeal No. 35 of 1968 was preferred under section 44 (3) of the said Act and by order dated 2nd April, 1969 the same was allowed and consequent to that the order of the Assistant Settlement Officer was reversed. From the said appellate order of 28th April, 1970, the petitioners moved and obtained this Rule and at the time of the hearing of same Mr. From the said appellate order of 28th April, 1970, the petitioners moved and obtained this Rule and at the time of the hearing of same Mr. P. K. Sen Gupta, the learned Advocate appearing for the petitioners, contended that the impugned appellate order was not a proper order of reversal and on the face of the admitted findings, particulars where of have been mentioned hereinbefore, the Appellate Tribunal in agreement with the findings of the Assistant Settlement Officer should have held that the transfers in the instant case were not bonafide. Mr. Sen Gupta further argued that the order of the Appellate Tribunal was also not a proper order of reversal because the findings regarding possession as was arrived at by the Assistant Settlement Officer have not been dealt with or considered by it. Mr. Sen Gupta further submitted that in view of facts and circumstances of the present determination, either the order of the Assistant Settlement Officer, on the face of the records of the case should be restored or there should be an order for sending the ,matter back for fresh determination in accordance with law. In short, he has submitted that the findings of the Assistant Settlement Officer have not been properly considered and dealt with by the Appellate Tribunal. 6. Mr. Mitra appearing for the opposite parties has contended that in view of the fact that the transfers in the instant case were made by registered document and long prior to the mischief period under the said Act, the Assistant Settlement Officer under section 5A read with section 44(2a) of the Act had no jurisdiction to adjudicate on them. In support of his contentions Mr. Mitra first relied on the unreported decision of Anil Kumar Sen, J. dated 5th April 1974 in the case of Sm. Uma Rani Das & ors. v. Revenue Officer, Taki, (1) (Civil Rule Nos. 2805 to 9 (W) of 1970). In support of his contentions Mr. Mitra first relied on the unreported decision of Anil Kumar Sen, J. dated 5th April 1974 in the case of Sm. Uma Rani Das & ors. v. Revenue Officer, Taki, (1) (Civil Rule Nos. 2805 to 9 (W) of 1970). In that case the transfers by way of settlement were created in or about 1942 or even at the time of the Sunderban Settlement of 1948 and in view of that his Lordship in effect has held that since the transfers were made long prior to the mischief period under the said Act they cannot be said to be manufactured for the purpose of supporting the finally published record-of-rights, the correctness whereof was in dispute in the connected proceedings under section 44(2a) of the Act. Mr. Mitra further relied on another unreported decision of S.C. Ghosh, J. dated 19th July, 1974, in the case of Sm. Annapurna Roy V. Revenue officer, Taki, (2) (Civil Rule No. 254 (W) of 1971) where his Lordship has also found in the facts and circumstances of that case that when the Pattas were granted in August, 1945, it was difficult to find that the grantor of the said Pattas could or would anticipate that West Bengal Estates Acquisition Act was going to be enacted. Relying on the case as mentioned hereinbefore Mr. Mitra further submitted that since the documents in the instant case were not created with the intension to avoid the incidence of the Estates Acquisition Act or when even that cannot be conceived because at the time the transfers were effected the said Act was neither in the contemplation nor the same could be conceived, so the transfers should not be considered to be not bonafide. Since the transfers in the instant case were effected in favour of Md. Taher Ali by his father in the year 1949 when the draft bill of the said Act was not even prepared or contemplated the Assistant Settlement officer as has been found by the learned Appellate Tribunal was not justified in suspecting the genuineness or bonafides of them and in view of the above reasonings the Assistant Settlement Officer was also wrong in suspecting the genuineness of the registered documents dated 2nd April, 1957 in respect of the lands in Mouza Dakshin Garankathi in favour of Abdul Malik Ghorami, Abdul Rasid Ghorami by Haji Khoda Bux Ghorami. So the initiation of the proceeding under section 44 (2a) of the said Act was improper and not bonafide and the finding that the transfers were also not bonafide were baseless and unauthorised. 7. With regard to the question of possession, Mr. Mitra placed the appellate order and rightly argued that it had been duly found by the Appellate Tribunal that the persons in whose names the documents were executed did actually accept the gifts and entered into possession and such fact would also be proved by the entry of their names in the finally published record-of-rights in respect of their respective lands. 8. In view of the determinations as made in the two un-reported judgments as mentioned hereinbefore and the definite findings of the learned Appellate Tribunal in respect of possession and my findings as indicated above I hold that the contentions as raised by Mr. Mitra are of substance. Apart from this, the findings of the Assistant Settlement Officer that some of the transfers in respect of the lands in the instant case were made for the purpose of evading the incidence of the Agricultural Income-tax Act have also no basis or relation whatsoever under the Estates Acquisition Act which was enacted for making provisions for the State acquisition of the Estates, of rights of intermediaries therein and of certain rights of raiyats and under raiyats and of the rights of certain other persons in lands comprised in estates. Thus, from a reference to the provisions of the Estates Acquisition Act it appears that the findings of the Assistant Settlement Officer to the effect that the transfers in the instant case were not bona fide because they were meant to avoid the incidence of Agricultural Income-tax Act were improper, without jurisdiction and unauthorised. Such transfers not being transfers effected with the object and for the purpose of retaining lands more than the ceiling under the said Act would not come under the restrictions envisaged under section 5A of the Act and if at all, they can be adjudged and adjudicated or enquired into under the provisions of the Agricultural Income-tax Act. Transfers effected for the purpose of avoiding the incidence of the Agricultural Income-Tax Act even if such transfers are admitted, would not come within the category of transfers as mentioned in section 5A (7) of the West Bengal Estates Acquisition Act. Transfers effected for the purpose of avoiding the incidence of the Agricultural Income-Tax Act even if such transfers are admitted, would not come within the category of transfers as mentioned in section 5A (7) of the West Bengal Estates Acquisition Act. In view of the above findings I do not feel inclined to send the matter back for rehearing as was asked for by Mr. Sen Gupta. Thus the points raised by Mr. Sen Gupta fail and as such the Rule is discharged. There will, however, be no order as to costs. Let the records be sent down at an early date.