Judgment 1. THIS second appeal is against the judgment and decree passed by the Learned additional District Judge, 1st court, midnapore, in Title Appeal No. 669 of 1971, affirming the judgment and decree of dismissal passed by the learned Additional Munsif, Contai in Title Suit No. 153 of 1970. 2. PLAINTIFFS filed the suit for declaration of their title to the suit-land and for permanent injunction, It was the case of the plffs. that the suit land described. in the schedule ka and ka 1 to the plaint belonged to Basanta Kumar Panda, the father of the defendants no. 2 to 4. Basanta Kumar Panda sold the suit land to the plffs. by the kobalas dated 14-4-55 and 10-6-56. Since then the plffs had been possessing the suit land. Before sale to the plffs. Basanta Kumar Panda retained the suit land by submitting the return in B form. The Tahasilder of the defdt no. 1 State of West had been denying the plffs' title to the suit lands by giving out that the suit land had vested in the State of West Bengal and had been trying to settle the suit land with others. Hence the suit. The defendant no. 1 State of. West bengal filed one written statement and the defendants no. 2 to 4 filed a separate joint written statement and they contested the suit. The defdt no. 1 denied plffs' title to the suit land. It was alleged that Basanta Kumar Panda was a big. raiyat and as he did not retain the suit-land, the same vested in the State of west Bengal. 3. THE defendants no. 2 to 4 who were the sons of Basanta Kumar Panda contended in their written statement that as their family was governed by the Mitakshara law, Basanta Kumar panda had one-fourth share in the suit land which was their ancestral coparcenary property. It was also contended that the plaintiffs obtained the kobalas from basanta Kumar Panda by fraud, misrepresentation and undue influence. Accordingly plaintiffs had no title and possession in the suit land. 4. THE learned Munsif in consideration of the evidence found that the plaintiffs failed to prove their title to the suit lands and accordingly dismissed the suit. On appeal, the learned Additional District Judge affirmed the judgment and decree of dismissal passed by the learned Munsif. Accordingly plaintiffs had no title and possession in the suit land. 4. THE learned Munsif in consideration of the evidence found that the plaintiffs failed to prove their title to the suit lands and accordingly dismissed the suit. On appeal, the learned Additional District Judge affirmed the judgment and decree of dismissal passed by the learned Munsif. Being aggrieved by the judgment and decree of the courts below, the plaintiffs have preferred this second appeal on the ground that the courts below committed mistake in law in dismissing the suit. As they failed to consider the relevant evidence and the proper aspect of law involved in the suit having its' reference to the plaintiffs' purchase deeds, and as they wrongly held that Basanta Kumar Panda did not retain the suit land. Mr. Puspendu Bikash Sahoo, learned Advocate for the appellants has made his submission in support of the second appeal. Mr. Debayan Bera learned Advocate has appeared for the Resort. no. 1 state of West Bengal and Mr. Bijay Basanta Koley, learned 'advocate has app-eared for the respondents no. 2 to 4. 5. BOTH the courts below found that basanta Kumar Panda, the vendor of the plaintiffs had intermediary interest 'in the suit land and not the big-raiyat interest as contended by the State of West Bengal. The concurrent finding of this fact by both the' courts below in this respect can not be interfered in this second appeal. Both the courts below found also that the plaintiffs could not prove that Basanta Kumar Panda retained the suit land by submitting the return in B form after the vesting of the intermediary interest in the State on 15-4-55. This concurrent finding of fact of both the courts below can not be also interfered with in this second appeal. Mr. Sahoo, learned Advocate for the appellants hi submitted that the plaintiffs called for the return in B form submitted by Basanta Kumar Panda from the concerned officer of the State who however failed to produce the same and that accordingly adverse presumption must be drawn against the State of West Bengal in this respect. It appears that the same argument was also made before the first appellate court which however did not accept such argument. It appears from the order no. It appears that the same argument was also made before the first appellate court which however did not accept such argument. It appears from the order no. 59 dated 2-9-70 in the trial court record that the court received the memorandums from the B Camp Officer requesting to inform the party to supply the names of the mouzas for which B form was alleged to have been submitted and that the court directed to inform the party concerned. There was nothing on record to show that the party concerned, that is, the plaintiffs, complied with the same, so the court below rightly did not draw any adverse presumption. Both the courts below therefore rightly held 'that the plaintiffs failed to prove that Basanta Kumar Panda submitted the return in B form and retained the suit land. It may be mentioned here that the sons of Basanta Kumar panda are the defendants no. 2 to 4 in the suit and they never contended in their written statement that their father submitted the return in B form and retained the suit land. 6. THE plaintiffs purchased the land as described in schedule of the plaint by the kobala dated 10-6-55 (Ex. 1. which was after the date of the vesting. The plaintiffs therefore did not acquire title to the said land on the basis of their purchase of the said land from Basanta kumar Panda as it could not be proved that Basanta Kumar Panda retained the suit land. Mr. Sahoo has however submitted that Basanta Kumar Panda as intermediary had in his possession the land below the ceiling limit and accordingly it should be treated that the Revenue officer had allowed Basanta Kumar Panda to retain the aforesaid land in view of the provisions of section 6 (5) of the west Bengal Estate Acquisition Act read with Rule 4a of the Rules framed there under. According to Mr. Sahoo, the proviso to rule 4a of the West Bengal Estate Acquisition Rules, 1954 will also apply to the case of intermediary like basanta Kumar Panda in view of the decision in 1977 (1) C. L. J. 672 (Rati Kan. to Mosat Vs. State of West Bengal. I have gone through the said decision and i find that it does not say so. The relevant portion of the said decision which has been referred to by Mr. Sahoo is quoted here. to Mosat Vs. State of West Bengal. I have gone through the said decision and i find that it does not say so. The relevant portion of the said decision which has been referred to by Mr. Sahoo is quoted here. This is provided in rule 4a of the West Bengal Estates Acquisition rules. Under the proviso to the said rules, it is laid down that a Vaiyat or an under-raiyat who is to be deemed in intermediary under section 52 holds land which does not exceed the ceiling laid down under clause (c) or clause (d) of sub-section (1) of section 6 of the Act, he will not be required to exercise such choice. This provision does not extend to the intermediary. Even assuming such opportunity was also available to an intermediary, it can only be done in cases; where the lands held by him did not exceed the ceiling. "it has been clearly stated in the aforesaid portion that the proviso to rule 4a does not extend to the intermediary. So I find no substance; in such argument of Mr. Sahoo, learned. Advocate for the appellants. Further there is no satisfactory evidence in this case to show that Basanta Kumar Panda had the lands below the ceiling limit. Mr. Sahoo, the learned Advocate for the appellants, has submitted that the principle of law as enunciated in the decision in 67 C. W. N. 12 (Gour Gopal mitra and anr. v. State of West Bengal and ors) shows that under section 6 (5)of the West Bengal Estates Acquisition act read with rule 4a of the West Ben gall Estates Acquisition Rules framed there under the intermediary has a right and opportunity even after the prescribed time limit has passed to make a claim for retention of the land so long as he has not parted with the possession of the land. There is no dispute to the aforesaid proposition of law. The fact was that Basanta Kumar did not avail of that right and opportunity but on the her hand transferred the land to the plaintiffs. It is true that so long as the state of West Bengal did not take possession in the vested land, the intermediary could exercise his right of retention in view of the decision in 67 C. W. N. 12. Mr. It is true that so long as the state of West Bengal did not take possession in the vested land, the intermediary could exercise his right of retention in view of the decision in 67 C. W. N. 12. Mr. Sahoo has submitted that unless the Revenue Officer issues notice to the intermediary asking him to make his claim for retention of the land, the intermediary will not make a claim for retention. Under the second part of section 6 (5) of the West Bengal Estates Acquisition Act, it is clear that if no choice is exercised by the intermediary during the prescribed period even then the Revenue Officer shall allow him to retain so much of the lands as do not exceed the statutory limits after giving him an opportunity of being heard. It however does not appear that it is incumbent upon the Revenue Officer to issue any notice to the intermediary to make a claim for retention. It has been held in 67 C.W.N. 12 at page 15 "as I read the relevant subsection of section 10 and section 6 of the Act and other relevant sections it appears to me that it is not incumbent upon the Collector to issue any notice or upon the Revenue Officer to issue any notice to the intermediary to make a claim for retention. In view of she above, I do not find substance in the above mentioned argument of the learned Advocate Mr. Sahoo. 7. BOTH the courts below found that intermediary Basanta Kumar Panda after the vesting of the intermediary land covered by the kobala dt. 10-6-56 (Ext. 1), sold the same to the plaintiffs without retaining the same by exercising his right of retention. Both the courts below therefore rightly held that the plaintiffs did not acquire any title to, the ka I scheduled suit land on the basis of their purchase by the kobala dated 10-6-56. The fact that the plaintiffs submitted the return in B form does not improve upon the case of the plaintiffs in any way. The privilege under section 6 (5) of the west Bengal Estates Acquisition Act can be pressed into service only by an intermediary who was so on the date of vesting. Such a right is not available to the transferee from the intermediary after the date of vesting. 8. The privilege under section 6 (5) of the west Bengal Estates Acquisition Act can be pressed into service only by an intermediary who was so on the date of vesting. Such a right is not available to the transferee from the intermediary after the date of vesting. 8. AS regards the ka scheduled, suit-land covered by the kobala (Ex. l\s)executed on 14-4-55 but registered on 29-4-55, both the courts below found that the kobala was operative as against the state of West Bengal (third party) from the date of registration, that is, 29. 4. 55 and accordingly the plaintiffs did not acquire any title to said land also as the said land vested in the State on 15-4-55. Both the courts below relied on the decision in 44' C. W. N. 802. Mr. Sahoo, the learned Advocate for the appellants, placing reliance on the decision in 82 c. W. N. 743 (State of West Bengal vs. Nemai Chand Kundu) has submitted that the courts below committed mistake in holding that the ka scheduled land covered by the kobala dt. 14-4-55 vested in the State and that the plaintiffs did not acquire title to the same. He has further submitted that the decision in 44'c. W. N. 802 (Gobordhan vs. Gunadhar) was discussed in the decision in 82 C. W. N. 743, and it has been held in 82 C. W. N. 743. "in this view, the transfer made by the vendor of the respondent prior to the date of vesting will not be subject to vesting though the registration was effected later as the vendor had no longer an interest in the property which could be vested in the State on the date of vesting. Plaintiffs therefore would acquire title to the ka schedule suit land by their purchase from Basanta Kumar panda on the basis of the kobala dt. 14-4-55 (Ex. lja) provided' Basanta Kumar Panda had his exclusive interest in that land. Mr. Bijay Basanta Kolay, learned advocate for the respondents, no. 2 to 4 (defendants 2 to 4) has submitted that the defendants no. 2 to 4 took up the definite plea in the written statement that they and their father Basanta Kumar panda were governed by Mitakshara school of Hindu Law and that the suit land was their ancestral coparcenary property and that they contested the suit on that plea. 2 to 4 (defendants 2 to 4) has submitted that the defendants no. 2 to 4 took up the definite plea in the written statement that they and their father Basanta Kumar panda were governed by Mitakshara school of Hindu Law and that the suit land was their ancestral coparcenary property and that they contested the suit on that plea. Their contention was that basanta Kumar Panda had only one-fourth share in the suit land. If that be so, plaintiffs can not acquire title to the entire ka scheduled suit land. It appears that both the courts below did not consider that point at all in their judgments, and did not arrive at any finding on the same. In the circumstances I find no other alternative but to send back the suit on remand. to the trial court for fresh decision with regard to the ka scheduled suit land only as covered by the plaintiffs' kobala dated 14-4-55 on determination of the only point as to the limit of Basanta kumar Panda's interest in the said land after taking into consideration the defense plea that he defendants no. 2 to 4 and their father Basanta Kumar Panda were governed by Mitakshara Law and that the said suit land was their ancestral co-parcenary property on the evidence al-ready on the record in this respect and on' further evidence that may be given by the interested parties of the suit in this respect. 9. IN the result, this second appeal is allowed in part on contest. The judgment and decree of both the courts below are set aside so far as the ka scheduled suit-land covered by the kobala dt. 14-4-55 is concerned and the suit is sent back on remand for fresh decision with respect to the ka scheduled suit land in the light of the observations and directions as given in the body of the judgment. This second appeal, however, so far as it relates to the kajl scheduled suit land as covered by the kobala dt. 10-6-58 is however dismissed, and the judgment and decree of the Court below are confirmed to that extent. I make no order as to costs.