JUDGMENT Tarun Kumar Gupta, J. 1. THIS appeal is directed against judgment and decree dated 28th November, 1995 passed by learned Additional District Judge, 4th Court at Krishnanagar, District Nadia in Title Appeal No.140 of 1993 affirming the judgment and decree dated 18th March, 1993 passed by learned Munsif, 2nd Court at Krishnanagar District Nadia in Title Suit No.61 of 1990. 2. THE respondents filed said suit being Title Suit No.61 of 1990 alleging that their predecessor-in-interest namely Nitendra Kumar Bhattacharjee was resident of Shukhari village under Maiman Singha District, East Pakistan and came to India in 1947 after partition and purchased the suit property in C. S. Khatian No.40, Plot No.500 measuring 1.05 decimals and other non-suit property from Panchanan Singha Roy being guardian of owner minors Apurba Kumar Singha Roy and Amar Nath Singha Roy by a registered Kobala dated 16th December, 1947. Nitendra Kumar Bhattarcharjee took loan from Government of West Bengal under a scheme of giving loan to the refugees by mortgaging the suit property and other properties. As Nitendra was a railway employee, he entrusted his cousin brother-in-law Sunil Kumar Bhattacharjee to record the name of Nitendra in R. S. record of right. Nitendra died on 18th of May, 1985. Thereafter, Sunil Bhattacharjee prevented plaintiffs to possess the suit property and tried to record name of one Hare Krishna Dey as a Bargadar. A case was filed in the High Court on that score. Plaintiffs all along possessed the suit property by cultivation through hired labourers. On the strength of erroneous and baseless record of rights, the defendants tried to dispossess the plaintiff from the suit property. Hence was the suit. Defendant Nos. 1 and 2 namely Amarendra Kumar Bhattacharjee and Ramarendra Kumar Bhattacharjee contested the suit by filing a joint written statement. They alleged inter alia that before partition Aswini Kumar Bhattacharjee, father of Nitendra and present defendant, Sudhansu Bhattacharjee, sisters husband of Nitendra, Jatindra Nath Bhattacharjee, brother of Nitendras father-in-law used to live in Maiman Singha. Nitendras father-in-law Purna Chandra Bhattacharjee as well as Nitendra were residing in Calcutta. The defendants, brothers of Nitendra, were minor at that time. Nitendra was entrusted by his father Aswini, sisters husband Sudhansu, father-in-law Purna and father-in-laws brother Jatindra for purchase of landed properties in West Bengal. Nitendras father-in-law Purna Chandra Bhattacharjee as well as Nitendra were residing in Calcutta. The defendants, brothers of Nitendra, were minor at that time. Nitendra was entrusted by his father Aswini, sisters husband Sudhansu, father-in-law Purna and father-in-laws brother Jatindra for purchase of landed properties in West Bengal. Nitendra purchased 2.47 acres of land in plot No.500 of Mouza Bethoduari from their money but in his name as there were legal problems in purchasing landed properties in India in the name of persons residing in the then East Pakistan. After partition those persons came to India and got their respective shares of the property so purchased by Nitendra with their money. The 1.05 acres of land in plot No.500 was allotted in favour of Aswini, the father of Nitendra and defendants. During R. S. operation at the instance of Nitendra the respective shares of said property was recorded in the names of their owners namely Aswini, Sudhansu, Purna and Jatindra. Aswini died in 1960 and on his death the said recorded property devolved upon his four sons namely Nitendra and the three defendants in equal shares each having four anas share therein. R. S. record was finally published recording the suit property measuring 1.05 acres in the name of Nitendra and his three brothers. .60 acres in the name of Sudhansu, .59 acres in the name of Purna and .23 acres in the name of Jatindra. Harekrishna Dey was cultivating the suit property along with other properties as Bargadar under Nitendra and his brothers. The suit was liable to be dismissed. 3. LEARNED Trial Court framed as many as eight issues on the basis of the pleadings of the parties. On the basis of evidence on record, both oral and documentary, learned Trial Court came to the findings that defendants failed to establish that Nitendra was a mere trustee and not the real owner in respect of the suit plot. LEARNED Trial Court accordingly passed a decree in favour of the plaintiffs. The defendants preferred an appeal being Title Appeal No.140 of 1993 but lost in said legal battle. LEARNED Judge of the Lower Appellate Court confirmed the findings of learned Trial Court. LEARNED Trial Court accordingly passed a decree in favour of the plaintiffs. The defendants preferred an appeal being Title Appeal No.140 of 1993 but lost in said legal battle. LEARNED Judge of the Lower Appellate Court confirmed the findings of learned Trial Court. The defendant/appellants has preferred this Second Appeal alleging inter alia that learned Courts below failed to consider the effect of vesting under West Bengal Estate Acquisition Act, 1956 and that the impugned judgments are liable to be set aside. 4. THE substantial question of law involving in this case is as to whether learned Lower Courts substantially erred in law by overlooking the overall impact of the records of rights prepared under West Bengal Estate Acquisition Act and thereafter under West Bengal Land Reforms Act vis--vis various transactions made by legal heirs of Purna Chandra, Jatindra and even the respondent/plaintiffs relating to bata plots of original C.S. plot No.500. Sri Bhaskar Ghosh, learned advocate for the appellant, has submitted that learned Courts below disbelieved the defence version of purchasing 2.47 acres of land in plot No.500 of Mouza Bethuadahari by Nitendra in his name as being entrusted by his father Ashwini, father-in-law Purnachandra, sisters husband Sudhangshu and father-in-laws brother Jatindra who at the relevant time i.e., in 1947 were residing in erstwhile East Pakistan while Nityendra was staying in India being a railway employee. According to Mr. Ghosh, learned Trial Court disbelieved said defence version for want of direct evidence on that score. According to him, as all those persons namely Ashwini, Purnachandra, Sudhangshu, Jatindra and even Nitendra have since died, there was hardly any scope for giving direct evidence of entrustment made in 1947 at the time of recording evidence in 1991-1992. Mr. Ghosh has further submitted that in 1959 R. S. records were finally published recording 1.05 acres in the name of Nitendra, Ramendra, Amarendra and Manabendra being four sons of Ashwini ; .60 acres in the name of Sudhangshu (sisters husband of Nitendra); .59 acres in the name of Purnachandra being father-inlaw of Nitendra and .23 acres in the name of Jatindra being brother of Purnachandra. 5. HIS further case is that said finally published R. S. records were allowed to stand without any objection from Nitendra till his death in 1985 and in spite of objection by his heirs namely the present plaintiffs/respondents. 5. HIS further case is that said finally published R. S. records were allowed to stand without any objection from Nitendra till his death in 1985 and in spite of objection by his heirs namely the present plaintiffs/respondents. According to him, both the Courts below failed to consider the effect of vesting under the West Bengal Estate Acquisition Act. He has further submitted that finally published record of rights showed that 1.05 acres of land of Ashwini was retained by his four sons namely Nitendra, Amarendra, Ramendra and Manabendra in four annas share each as they were in khas possession jointly and that remaining portion of lands were retained and recorded separately in the names of Sudhangshu, Purnachandra and Jatindra as they were in khas possession of their respective shares. He has asserted that after the said vesting Nitendra being not in khas possession of the entire 2.45 acres of land in plot No.500 could not retain the same in its entirety. HIS further submission is that after the publication of L. R. records under the West Bengal Land Reforms Act the shares of Ashwinis four sons were recorded in separate khatians in conformity with earlier R.S. khatian recording. His further submission is that learned Courts below failed to consider that Nitendra was in service in Calcutta at the relevant time while those persons who entrusted him to purchase said land in India, were living in erstwhile East Pakistan and that as there were some difficulties in purchasing lands in India in the name of persons living in erstwhile East Pakistan Nitendra being a very close relation of all those persons was entrusted to make said purchase in his name. His further submission is that respondent/plaintiffs case that Surendra was entrusted by Nitendra to supervise R. S. recording in 1957 was found to be false as it came out from the evidence of Surendra (D.W.3) that he was only nine years old at the relevant time. He has further submitted that sale of five decimals of land in plot No.500/1584 by the present respondent/plaintiffs claiming to inherit the same clearly showed that they admitted the defence case of owning and possessing of said plot of land by Purnachandra and later by his heirs. 6. He has further submitted that sale of five decimals of land in plot No.500/1584 by the present respondent/plaintiffs claiming to inherit the same clearly showed that they admitted the defence case of owning and possessing of said plot of land by Purnachandra and later by his heirs. 6. SRI Jiban Ratan Chatterjee, learned advocate for the respondent/plaintiffs, on the other hand, has submitted that suit property i.e., C. S. plot No.500 measuring 2.47 acres of land was purchased in the name of Nitendra, the predecessor-in-interest of the present respondent plaintiffs and that there was no evidence of entrustment of money by Ashwini, Purnachandra, Sudhangshu and Jatindra to Nitendra for making said purchase. Sri Chatterjee has further submitted that Nitendra exercised the rights of ownership over the entire plot No.500 measuring 2.47 acres of land as he took loan from Government of West Bengal by mortgaging said land in 1949 (Ext. C) and that at the initiation of Apurba Kumar Bhattacharjee, one of the sons of Nitendra, Government issued a certificate of writing off said loan in 1987. According to Mr. Chatterjee those documents are sufficient to establish title of Nitendra over the entire C. S. plot No.500 measuring 2.47 acres. He has further submitted that record of rights had no basis and accordingly learned Lower Courts were justified in declaring title of present respondent plaintiffs as legal heirs of Nitendra over the suit plot being C.S. 500 measuring 2.47 acres of land. 7. I have considered the submissions made by learned advocates of both sides as well as materials on record. Learned Lower Courts passed the decree in favour of respondent / appellants in respect of entire C. S. plot No.500 measuring 2.47 acres mainly on the ground that title deed stood in the name of Nitendra and that there was no positive direct evidence regarding entrustment of money by Ashwini, Purnachandra, Sudhangshu and Jitendra to Nitendra at the time of purchase in 1947. 8. IT was further observed by learned Courts below that when those persons namely Ashiwini, Purnachanra, Sudhangshu and Jatindra came to India in 1948 and purchased some non-suited properties then it was not believable that they would entrust Nitendra without any paper to purchase lands for them with their money in the name of Nitendra. 8. IT was further observed by learned Courts below that when those persons namely Ashiwini, Purnachanra, Sudhangshu and Jatindra came to India in 1948 and purchased some non-suited properties then it was not believable that they would entrust Nitendra without any paper to purchase lands for them with their money in the name of Nitendra. Learned Courts below were further swayed by observing that Nitendra mortgaged said property to the Government under document of 1949 claiming his ownership thereupon and that said loan was later written off by the Government at the instance of Nitendras son Apurba in 1987 after death of Nitendra in 1985. The alleged entrustment, if any, was held in 1947 and the evidence was laid in 1991-1992. None of the concerned parties namely Ashwini, Purnachandra, Sudhangshu, Jatindra and even Nitendra were alive at that time. As such, there was hardly any scope of giving direct and specific evidence regarding alleged entrustment to Nitendra by those persons. Further it came out from the evidence that in 1947 Nitendra was residing in Calcutta being a railway employee and those persons were residing in erstwhile East Pakistan. 9. IT is a historical fact that in 1947 there was partition resulting formation of two States namely India and Pakistan and that present Bangladesh was included in Pakistan being named as East Paskistan. There is also no denial that a large number of persons mostly Hindus tried to flee away from East Pakistan to India and for staying in India they were trying to purchase properties in India particularly in West Bengal so that on coming to India they have a place of residence. IT cannot also be denied that in the process the persons staying in East Pakistan entrusted their relations living in India to purchase properties for their sake as they were not sure as to when they would be able to come to India. As there was practical difficulty in purchasing properties in the name of persons living in East Pakistan many properties were purchased in the name of their close relations staying in India. 10. IN the perspective of the above historical background the present case is required to be looked into. There is no denial that Ashwini (father), Purnachandra (father-in-law), Sdhangshu (sisters husband) and Jatindra (brother of father-in-law) were close relations of Nitendra. 10. IN the perspective of the above historical background the present case is required to be looked into. There is no denial that Ashwini (father), Purnachandra (father-in-law), Sdhangshu (sisters husband) and Jatindra (brother of father-in-law) were close relations of Nitendra. It came out from the evidence of P. W.1 that Nitendra was staying in India much prior to 1947 being an employee of railway though plaintiffs tried to make out a case in the plaint that Nitendra came to India after partition. There is no denial that suit property in C. S. plot No.500 measuring 2.47 acres of land was purchased in December 1947 by Nitendra. Admittedly in finally published R. S. records of rights prepared in 1959, 1.05 acres of land in plot No.500 was recorded in the name of Nitendra and his three brothers namely Ramendra Amarendra and Manabendra being four sons of Ashwini; .60 acres of land in the name of Sudhangshu, showing bata plot 500/1583; .59 acres of land in the name of Purnachandra showing bata plot 500/1584, and .23 acres of land in the name of Jitendra showing bata plot 500/1585. 11. IN pursuance of Section 49 of the W. B. E. A. Act, 1953 the holdings of raiyats and under raiyats vested to the State free from encumbrance w.e.f. 10th of April, 1956 with a right of retention of admissible amount of land. Noting of lands in finally published revisional settlement record of right in the individual names of raiyats prima facie showed retention of recorded lands by the concerned raiyats. 12. IT was specific case of the respondent /plaintiffs that Nitendra entrusted Surendra, his relation, to look after the recording during settlement operation in 1957 but it came out from the evidence of Surendra (D.W.3) that he was only nine years old at the relevant time. As such the aforesaid specific case of respondent/plaintiffs that Surendra was permitted to look after the work of recording during the settlement operation in 1957 by Nitendra was not at all believable. IT is also pertinent to note that though Nitendra died only in 1985, but he himself never took any step for correction of said alleged wrong recording during R. S. operation. IT is also pertinent to note that though Nitendra died only in 1985, but he himself never took any step for correction of said alleged wrong recording during R. S. operation. It came out from the evidence on record that the legal heirs of Purnachandra Bhattacharjee, Jatindra Bhattacharjee and Sudhangshu Kumar Bhattacharjee sold their shares of land as shown in R. S. record of right to different purchasers at different points of time. Ext. D shows selling of 26 decimals out of 59 decimals in plot No.500/1584 by legal heirs of Purna to third parties under registered Kobala. Basanti, wife of Nityendra and mother of the present respondent/plaintiffs, was one of the vendors in said sale deed (Ext.D) being one of the daughters of Purna. In said Ext. D it was specifically stated that those vendors being legal heirs of Purna inherited said property. It appears from Ext. D that there were five legal heirs of Purnachandra namely wife and four daughters who were vendors. So, even after said sale by heirs of Purna some amount of land remained in plot No.50/1584. Ext. E(1) shows that present plaintiff/respondents sold out five decimals of land in said plot 500/1584 to third parties claiming the same to be their ancestral property. 13. LEARNED Trial Court observed that said sale through Ext. E (1) by the plaintiffs did not show admission of Purnas title over said land or their inheritance of the same through their mother Basanti being daughter of Purnachandra. According to learned Trial Court as Nitendra purchased C. S. plot No.500, bata plots curving out of plot No.500 also belong to Nitendra. 14. I fail to appreciate the aforesaid finding of learned Lower Courts. Whenever there is change of ownership in respect of a part of a land a bata plot is created. If a person remains owner of sixteen annas share of a plot of land there is no question of creating a bata plot out of the main plot. Ext. E (1) virtually shows that respondent /plaintiffs claimed the same as ancestral property through their mother Basanti being one of the heirs of Purnachandra. During L. R. operation the names of four sons of Aswini namely Nitendra, Remendra, Amarendra and Manabendra were recorded in separate khatians showing each having four annas share in 1.05 acres of land left by Ashwini, through inheritance. During L. R. operation the names of four sons of Aswini namely Nitendra, Remendra, Amarendra and Manabendra were recorded in separate khatians showing each having four annas share in 1.05 acres of land left by Ashwini, through inheritance. As suit property admittedly stood in the name Nitendra, he was able to take loan from Government by mortgaging said land. Again, as said loan was sanctioned in the name of Nitendra, his son Apurba was authorized to pray for writing off said loan. These acts by itself cannot establish Nitendras title to suit land in the face of overwhelming documentary evidence produced by appellants/defendants. 15. THERE was some discussion in the judgment of Lower Courts about Barga recording of suit land in the name of Hare Krishna but I do not think that it has much importance in this case particularly when the matter is still subjudice. In this connection it is also pertinent to note that disposing of other non-suited properties purchased by Nityendra through same deed has no bearing in this case as appellants never staked any claim to those properties. 16. IN view of the foregoing discussion I am of opinion that learned Lower Courts failed to give due weightage to the circumstantial evidence as came out through the documents exhibited from the side of appellant/defendants. As a result, the appeal succeeds. The impugned judgment and decree of learned Lower Courts are hereby set aside. Pending application, if any, stand disposed of. However, I pass no order as to costs. Urgent xerox certified copy of this judgment be supplied to learned counsel/counsels of the parties, if applied for.