R. Bhattacharya, J.
1. This second appeal is by the defendant No. 3 of the original suit which was decreed in favour of the plaintiffs and affirmed in the first appeal.
The case of the plaintiffs is that the disputed land originally belonged to one Ramanibala Dassi who made a gift of the same in favour of Gosta Behari Mondal, the predecessor-in-interest of the plaintiffs by a deed dated 9-11-1925 and Gos-tha Behari Mondal since then started possessing the same in his own right. In C.S. khatian the property was recorded in the name of Gostha and his brother Krishna. In fact Krishna had no interest therein. As Gostha was in possession of the property and nothing stood in the way of enjoying the property as his own, no step was taken for correction of the record of rights. In the R. S. khatian also the name of Gostha and Gokul Chandra Mondal, the son of Krishna since deceased was recorded and the said record is erroneous and without any foundation. The defendant No. 1 cannot have any title or possession in the property on the basis of the R. S. khatian. The plaintiffs are the sols heirs of Gostha and they have been in possession of the property. The defendant No. 1 disclosed that he would dispose of his share in the property and hence the plaintiffs filed the suit to remove the cloud on their property created by the R. S. khatian. Besides the defendant No. 1, the defendant No. 3 Satish Maity has been made a party because he obtained one kabala from defendant No. 1 in respect of the suit property.
2. Defendants Nos. 1 and 3 contested the suit. Their case is on the same line. The defence is that the suit is barred by limitation and not maintainable. Ramani-bala Dassi, the previous owner of the property, in fact made a gift of the suit property and one bastu in favour of both Gostha and his brother Krishna. Gostha treated the property as gifted to both of them and recorded the properties as such in the C. S. khatian. Moreover, Gostha treated the properties as ancestral by throwing the properties into the common stock. The R. S. khatian shows the correct state of affairs. There was a partition of the suit property between Gostha and the defendant No. 1 after the death of Krishna and the defendant No. 1 disposed of his allotment in the disputed property in favour of defe-dant No. 3 on 20-11-66. The question of adverse possession has also been pressed. As I have already stated, the defence of both the contesting defendants is the same.
3. The learned Munsif on consideration of the evidence on record and the facts and circumstances found that by the deed of gift Ramanibala Dassi gift-ted the property to Gostha alone and not to Krishna or anybody else. It has also been found by the learned Munsif that Gostha did not record the name of Krishna in the C. S. khatian, that Gostha alone during his lifetime had been possessing the suit property in his own right and that after his death the plaintiffs had been in possession. It has been found that the case of adverse possession is disproved and the story ofpartition set up in the defence is unacceptable. It is further held that in spite of the order of injunction passed against the defendants during the pendency of the suit, the defendant No. 3 dispossessed the plaintiffs from eastern side of the suit property. The suit was, therefore, decreed declaring that the plaintiffs have got 16 annas title to the suit land and that the relevant C. S. and R. S. records are erroneous. In the first appeal also the learned Additional District Judge, Hoogly who dismissed the appeal on consideration and discussion of the evidence on record also held similarly that Ramanibala Dassi gifted the property to Gostha alone, that Gostha during his lifetime possessed the suit property in his own right and not Krishna and that after his death the plaintiffs had been in possession of the suit property. It has also been found that R. S. and C. S. records are erroneous and without any basis. The story of throwing the property in the common stock by Gostha has been rejected. It has also been held that the suit is maintainable as framed.
4. Before me Mr. S. C. Dasgupta has argued in support of the second appeal while Mr. S. Roy Chowdhury represented the plaintiff-respondents.
5. It has been first contended by Mr. Dasgupta that in view of ,S. 57B of the West Bengal Estate Acquisition Act the plaintiffs cannot challenge the correctness of finally published R. S. records and, therefore, the suit was not maintainable. If there is a substantial question of title involved in the suit or if prima facie the records of rights appeared to be wrong or erroneous and for that purpose the question of title requires to be investigated into or on the very face of it the record of rights appears to be clearly wrong, certainly the aggrieved parties can start a suit to declare his title to the suit land by getting the record of rights in question declared erroneous. In the present case in C. S. record there are names of Gostha and Krishna as joint owners of the disputed land on the basis of the deed of gift and the R. S. record stands in the names of Gostha and defendant No. 1 as the joint owners on the basis of the deed of gift by Ramanibala. The deed of gift has been exhibited in this case and it shows that Ramanibala, the original owner, gifted the property to Gostha alone for special consideration and to nobody else. It has also been held that Gostha and after his death the plaintiffs exercised the right of sole ownership in respect of the disputed property on the basis of the said gift by Ramanibala. Clearly, therefore, the very recitals, not to speak about the findings of both the courts below, go against the recording of the names of Gostha and Krishna or Gostha and the defendant No. 1 in the record of rights on the basis of the deed of gift. On the very face of it and clearly the record of right has no basis to say that the property in question was gifted jointly to Gostha and Krishna or that they were the owners of the disputed property on the basis of the deed of gift or that Gostha and defendant No. 1 were joint proprietors of the disputed land on the basis of such deed. Moreover, Section 57B was introduced in the West Bengal Estate Acquisition Act in 1973 when this second appeal was pending. Long before that the suit was decreed. This section does not affect the decree already passed. The suit is, therefore, maintainable and the contention of Mr. Dasgupta cannot be upheld.
6. It has been next argued from the side of the appellant, who is the defendant No. 3, the purchaser from the defendant No. 1, that he was a bona fide purchaser on consideration and, therefore, after the purchase of the property from the defendant No. 1 his title cannot be affected. First of all it has got to be stated that this point has been raised for the first time in this second appeal at the time of hearing. This point of bona fide purchase on consideration has not been pleaded in the written statement and even this case was not pressed before the trial Court and as such no issue was framed. No evidence was adduced from the side of the defendant No. 3 that he paid cash money for the purchase of the property or that it was a bona fide purchaser. Such point was not taken even in the first appeal before the Additional District Judge. Moreover, even in the memo of second appeal no such ground has been taken. The R. S. record shows that the defendant No. 1 has title to the suit land to the extent of 1/2 share on the basis of the deed of gift executed by Ramanibala. The deed of gift says that it was in favour of Gostha alone and not to Krishna or anybody else. In spite of the mention of the deed of gift, and in spite of the clear recital in the said deed, the defendant No. 3 purchasedthe property knowing fully well that the properties under the gift were given to Gostha alone and not to Krishna and, therefore, the defendant No. 1 had no right therein. Moreover, both the courts find that defendant No. 1 had no possession and that the plaintiffs possessed the same. There is no evidence from D. W. 2, the defendant No. 3 that he paid consideration money for the alleged purchase. It has been found by both the courts that after purchase he dispossessed the plaintiffs from a portion of the suit land during the pendency of the suit presumably to show his possession. The case of the defendant No. 3 is that there had been a partition between Gostha and the defendant No. 1 after the death of Krishna in respect of the suit property, but the deed relied upon by the defendant No. 3 shows that he purchased undivided share of defendant No. 1 in the suit property. These facts clearly indicate that it was not a case of bona fide purchase on consideration, but the defendant Nos. 1 and 3 wanted to speculate upon the wrong entry in the R. S. kha-tian. The second point urged by Mr. Dasgupta is, therefore, rejected. I find no reason to interfere with the decision of the learned Additional District Judge who rightly dismissed the appeal.
7. Lastly Mr. Dasgupta has argued that when the defendant No. 3 is in possession he cannot be dispossessed as there is no prayer for eviction on payment of ad valorem court-fees. In this case the defendants Nos. 1 and 3 were directed to maintain status quo ante during the pendency of the suit. The parties agreed to such order. The plaintiff's case is that he was in possession of the suit property and his possession was being threatened by the defendants. They, therefore, prayed for declaration of their title to the suit land and for permanent injunction restraining the defendants from disturbing their possession therein. Both the courts below found that in spite of the order of court, the defendant No. 3 dispossessed the plaintiffs from the eastern side of the suit land. It is the defendant No. 3 the appellant who wanted illegally to reap the fruits of his mala fide and unlawful action violating the court's order by dispossessing the plaintiffs. The plaintiffs have proved their case as stated in the plaint and are entitled to get an effective decree for proper relief. It is the duty of the court to pass a decree for appropriate relief to the plaintiffs by removing the wrong done by the defendant in this case. The duty of the court is to see that proper and substantial justice is done according to the circumstances of the case so that the aggrieved party may feel that his right is vindicated. When the defendant No. 3 has, violating the order of the court, dispossessed the plaintiffs from the suit property during the pendency of the suit, the court has the authority and duty to restore possession to the plaintiffs by evicting the defendant, the wrong-doer under Section 151 of the Civil P. C. A similar view I find in a decision of the Patna High Court in the case of State of Bihar v. Usha Devi reported in : AIR1956Pat455 . It appears that the trial Court despite the finding that the defendant No. 3 had dispossessed the plaintiffs from the eastern portion of the suit land passed a decree for declaration of the plaintiffs' title to the suit land and a permanent injunction against the defendant No. 1 restraining him from interfering with the joint possession of the plaintiffs and the defendant No. 3 in the suit land. This sort of decree for injunction is illegal and unjust. Although the plaintiffs did not file any appeal against or objection to this part of the decree, the appellate court can under Order 41, Rule 33 of the Civil P. C. modify the decree of the trial Court to give proper and appropriate relief as required in the facts of the case. In the present case I hold that under Order 41, Rule 33 for just and necessary relief the plaintiffs are entitled to a decree not only for the declaration of their title to the suit land and permanent injunction against the defendants Nos. 1 & 3 restraining them from disturbing the possession of the plaintiffs in the suit land but also for recovery of possession of the portion of the suit property which is occupied by the defendant No. 3, the appellant by evicting him therefrom and for this recovery of possession, the plaintiffs need not pay any additional court-fees.
8. In the result, the appeal is dismissed with costs. The decree of the trial Court passed in favour of the plaintiffs shall be modified as indicated hereinbefore.