JUDGMENT (1.) THE plaintiff's case is that the disputed land appertains to the plot no. 386 of Mouza Atpur, 2-1 /2 cottahs of land appertaining to that plot was taken settlement of by him from the landlords, Haramohan Ghosh and others, on the 8th Sravan, 1361 B. S. One Nader Ali Mian held 1-1/2 cottahs of land to the adjacent north of his plot. The defendant acquired that property by purchase. On the 20th April, 1955, the defendant trespassed into the disputed land having at area of 30' x 7-1\2' noted in the schedule to the plaint, dispossessed him by constructing one hut and put up fencing thereon. The suit is for recovery of khas possession of the land on declaration of the plaintiff's title thereto. (2.) THE defendant has filed a written statement denying the plaintiff's allegations. It has been alleged inter alia that Hara Mohan Ghosh and others had no right to make such settlement in the plaintiff's favour. The disputed land appertains to his plot and not to the plaintiff's land. He has acquired title to the disputed land by adverse possession. Previously the suit was dismissed. There was an appeal by the plaintiff and the suit was sent back on remand. After the order of remand, there was a local investigation. The Pleader Commissioner reported in the plaintiff's favour stating that the major portion of the disputed land appertained to the plaintiff's plot, that report was accepted and the suit decreed in part. An appeal was filed and the defendant lost the same. Hence the second appeal. (3.) IT has been contended on behalf of the appellant that the trial court made a mistake in accepting the subsequent reports submitted by the Pleader Commissioner. The Pleader Commissioner has stated that the marks PQRS represent the defendant's land and PQMN plaintiff's land. It was also stated that the marks PQMN pointed out by the Pleader Commissioner appeared to be more probable. So the learned Munsif accepted the marks PQMN as the plain-tiff's land. In view of the vague report, this Court would have no hesitation in setting aside the Pleader Commissioner's report and sending the case back on remand to determine this matter because the area of the disputed land is very small, the measurement being 30'x 7 1/2'. So the learned Munsif accepted the marks PQMN as the plain-tiff's land. In view of the vague report, this Court would have no hesitation in setting aside the Pleader Commissioner's report and sending the case back on remand to determine this matter because the area of the disputed land is very small, the measurement being 30'x 7 1/2'. It has been next stated that unless the plaintiff took settlement from the deities Sri Lakshmi Narayan Thakur and Sri Sri Lakshmi Janardan Thakur which were the actual owner of the disputed property he acquired no title thereto. The last submission is that the suit is not maintainable because the C. S. and the R. S. Khatian will show that the plaintiff is a raiyat regarding the property in question. He was not in khas possession on the date of the vesting of the property in the State because 20th April, 1955, is the date of the alleged dispossession. The decision of Krishna Iyer, J. in AIR 1977 S. C. 5 Gurbachan v. Kamala has been cited to Support that contention. (4.) THE learned Advocate appearing on behalf of the respondent has contended that the first two points urged on behalf of the appellant are questions of fact. This cannot be entertained in second appeal. The last point regarding the maintainability of the suit and of the appeal was not ruised in the courts below or in the memorandum of appeal. Hence these questions cannot be first raised in second appeal. The case of Pasuba vs. Dattatraiya in AIR 1966 SC 1024 has been cited to show that If the plea is not raised in the trial court or in the first appellate court, the party cannot raise it for the first time in the High Court. At any rate, the question of vesting was decided by Krishna Iyer, J, in 1977 SC page 5 (Supra) on an interpretation of the provision of Bihar Land Reforms Act, which are not in pari materia with those of the West Bengal Estates Acquisition Act. The case of Ram Narayan -vs- State of U. P. in AJR 1957 SC 18 at page 23 has been referred to show that the sound principle of construction is not to interpret expressions used in one Act with reference to their use in another statute. The case of Ram Narayan -vs- State of U. P. in AJR 1957 SC 18 at page 23 has been referred to show that the sound principle of construction is not to interpret expressions used in one Act with reference to their use in another statute. The meaning of 'words and expressions' used in an Act must take their colour from the context in which they appear. The plaintiff is a non agricultural tenant within the meaning of section 2 (1) (k) of the West Bengal Estates Acquisition Act. Since he is a non agricultural tenant, his interest cannot vest in the State. The case of Shib Sankar -vs- Prabarxak Sangha in AIR 1967 SC 940 at page 943 shows that where a party is a non-agricultural tenant regarding the land in question, it does not fall within the definition of intermediary as defined in section 2 (1) (i) of the Act and such interest does not vest in the State. The relevant portion of section 6 (1) (c) of the Act indicates that the intermediary has a right to retain non- agricultural land in his khas possession. The words "non-agricultural land in his khas possession" qualify the word 'retain' used in sub-section (i) thereof. This interpretation was put in the case of Taraprosad -vs- Ganesh Chandra Mondal in 70 CWN 652 at page 668. Since the plaintiff is a non agricultural tenant and because his interest in that land did not; vest in the State of West Bengal, the suit for declaration and recovery of khas possession is maintainable. The cases of Maha -mmad Idris vs. Lakhpati, 74 CWN 806 and of Sasthi Das Mullick vs. J. L. R. O. Barrack-pore in 1977 (1) CLJ 695 have been cited in support of that contention. It will appear from the Bench case of Lalji Agarwalla Jain vs Jhingu Goala in 61 CWN 607 that an appeal by the decree-holder in a suit for ejectment is maintainable though the appellant's estate including the disputed land has vested in the State. It will appear from the Bench case of Lalji Agarwalla Jain vs Jhingu Goala in 61 CWN 607 that an appeal by the decree-holder in a suit for ejectment is maintainable though the appellant's estate including the disputed land has vested in the State. The proviso to Rule 4 (a) (i) of the West Bengal Estates Acquisition Act will clinch the issue for it reads as follows :-"provided that if the area of land held by a raiyat or an under raiyat who is deemed to be an intermediary under section 52 does not exceed the limit retained under clause (c) or clause (d)of Sub-section (i) of section 6 he shall not be required to exercise such choice. " the area of the disputed land is very small and so he was not enjoined to retain the same by submitting any return, even if the court holds that he is an under raiyat regarding the land in question. The first two questions urged on behalf of the appellant are questions of fact and so they cannot be reopened in second appeal. (5.) THE only question is whether the suit and the appeal will be maintainable. In the case reported in 1971 S. C. 2018 State of Rajasthan v. Rao Raja at page 2019 it has been stated that the plea of maintainability is a legal one and if the suit on the face of it is not maintainable, the fact that no specific plea was taken or no precise issue was raised is of little consequence. (6.) THE C. S. Khatian shows that the disputed property is a raiyati mokarari one, vide, Ext. 6. It will appear from the R. S. Khatfans, Exts. 6 (a) and 6 (b), that Hara mohan Ghosh and others had mokarari interest. The patta granted by Hara Mohan ghosh on the 4th July, 1954, which has also been referred to in the plaint, has been noted in the R. S. Khatian. It has been stated that it is an under- raiyati holding. After the enforcement of the provisions of Chapter VI of the West Bengal Estates Acquisition Act, it has become the interest of an intermediary. It has to be seen if the disputed property is a non-agricultural property or agricultural property. It has been stated that it is an under- raiyati holding. After the enforcement of the provisions of Chapter VI of the West Bengal Estates Acquisition Act, it has become the interest of an intermediary. It has to be seen if the disputed property is a non-agricultural property or agricultural property. The present question was properly dealt with by a Bench of our High Court in the case of Rati Kanta -vs- Subodh Gopal in I.L.R. 1969 (2) Cal. 315 after considering the provisions of Act 1 of 1954. It has been stated that if the plaintiff has no possession in the disputed land the suit for. recovery of possession is not maintainable. When a notification under section 4 of the West Bengal Estates Acquisition Act is issued, the plaintiff loses title to the property and he can only get mesne profits up to the date of vesting. This is the latest view of a Bench of our Court. In the case of Gur Bachan -vs- Kamla 1977 S. C. 5 at pages 15 and 16 it has been stated that unless the party remains in khas possession of the property, he is not entitled to recover it from the trespasser because mere right to possession does not mean khas possession within the meaning of the Bihar Land Reforms Act. The case of Subhan vs. Madhab Rao in 1962 S.C. 1230, Ram vs. Behari in 1965 S.C. 524, Roy and Company sis. Nani in A.I.R. 1979 Cal. 50 and A.I.R. 1978 S.C. 30 Nathuni v. Biswanath may also be referred to. Hence the submissions made on behalf of the respondent cannot be accepted. Since the date of alleged dispossession is after the date of vesting, i. e., on 20th April, 1955, and because the plaintiff was not in khas possession of the disputed land on the date of vesting, the suit for recovery of khas possession is not maintainable. Section 6 (1) (a) and (b) of the West Bengal Estates Acquisition Act respectively gives a right to the intermediary to retain land, comprised in homestead and lands comprised in or appertaining to buildings and structures, if certain conditions are fulfilled. Section 6 (1) (a) and (b) of the West Bengal Estates Acquisition Act respectively gives a right to the intermediary to retain land, comprised in homestead and lands comprised in or appertaining to buildings and structures, if certain conditions are fulfilled. It is pertinent to point out that the words "not in his khas possession" do not appear in clauses (a) and (b), but such expression has been expressly used by the Legislature both in clauses (c) and (d) of the Act. That expression cannot qualify the word 'retain' used in sub-section (1) of section 6 thereof. Therefore, on a plain reading of that section it appears that unless the non-agricultural land or the agricultural land remains in the khas' possession of the intermediary within the ceiling limit, he cannot retain the same. (7.) IT is, therefore, held that the suit is not maintainable. Since this question has been raised first in this Court, the parties will bear their own costs throughout. The appeal is allowed. The judgment and decree appealed against be and the same are hereby set aside and the suit dismissed without costs.