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2003 DIGILAW 221 (CAL)

Sukur Ali Gazi v. Arman Bibi

2003-04-30

HRISHIKESH BANERJI

body2003
JUDGMENT Hrishikesh Banerji, J. 1. By the present application the petitioner, Sukur Ali Gazi prays for restoration of his land under the provisions of section 4(1) of the West Bengal Restoration of Alienated Lands Act, 1973 (the 1973 Act' for short), on the ground that owing to distress and inability to maintain himself and the members of his family as also for meeting the costs of cultivation he was compelled to sell his land. 2. The subject-matter of the present dispute is .43 decimal of land in plots Nos.199 to 314 under Khatian No. 171 within Mouja-Durgapur in the erstwhile district of 24-Parganas. 3. It appears from the deed of sale that the petitioner sold the land in aforementioned plots on 23rd Falgun, 1378 B.S. (7th March, 1972) at a consideration of Rs.1800/- to the opposite party No.1, Arman Bibi, by a registered Kobala. 4. It is the petitioner's case that he has to sell the land owing to distress and on need of money for maintaining himself and the members of his family as also for meeting the costs of cultivation. The transaction, it is alleged by the petitioner, was accompanied by an oral agreement for reconveyance of the said property. At the time of such sale the petitioner possessed less than 2 hectors of land. 5. Following such sale, the opposite party No.1, Arman Bibi has been in possession and enjoying the usufructs of the said land by cultivating and improving the said land. 6. The petitioner filed an application in the month of April 1975 before the Special Officer, Basirhat, 24-Parganas (O.P. No.3) under the provisions of the 1973 Act for restoration of the disputed land to the petitioner. 7. The opposite party No.1 is contesting the application denying the allegations made in the petition and alleging that there was no contract between the parties for the return of the suit land; that the suit land was not sold for distress of the petitioner and his family or to meet the costs of cultivation of his land. 8. The opposite party No.3, the Special Officer, Basirhat-l, 24-Parganas (B.D.O.) by his order dated 6th January, 1982 disallowed the petitioner's case and directed that the defendant, Arman Bibi could enjoy the property and both the parties should maintain status quo in respect of the property. 9. 8. The opposite party No.3, the Special Officer, Basirhat-l, 24-Parganas (B.D.O.) by his order dated 6th January, 1982 disallowed the petitioner's case and directed that the defendant, Arman Bibi could enjoy the property and both the parties should maintain status quo in respect of the property. 9. Against the said order the petitioner preferred L.A.A. No.3 of 1982 before the opposite party No.2, Sub-Divisional Officer, Basirhat, 24-Parganas. Opposite party No.2 disposed of the appeal of confirming the order passed by the respondent No.3. 10. The petitioner states that at that time he had less than 2 hectares of land, that through his son he requested the opposite party No.1 and her husband to reconvey the land on several occasions but they refused to reconvey and hence the present case for recovery of his property. 11. The following questions arise for a just decision in the present case:- 1. Whether there was any written or oral agreement between the parties to return the disputed land? 2. Whether the case comes within the purview of section 4(1) of the 1973 Act? 12. It has been found by the Special Officer that there was no written or oral agreement between the parties for the return of the suit land. Nor was any convincing evidence adduced before the Special Officer about any distress of the family of the petitioner. The land was actually sold in the year 1972. It was also found by the Special Officer that the petitioner possessed less than 2 hectares of land at the time of the sale of the suit property. 13. The petitioner's case is that the transfer of the land was made in the year 1972 by an oral agreement for reconveyance of the land to him by the transferee. The petitioner who has been examined as P.W.1 deposes that he sold .43 decimal of land at a price of Rs.1800/- to the opposite party No.1 on the 7th day of March, 1972; that during the talks for such sale it was orally agreed between the parties that when the money would be refunded by the petitioner the land would also be reconveyed by the opposite party to the petitioner. In his evidence, he further states that he had to sell the property owing to distress and that at the time of sale he had land measuring about 2 Bighas 6 Kotahs only. In his evidence, he further states that he had to sell the property owing to distress and that at the time of sale he had land measuring about 2 Bighas 6 Kotahs only. It is further stated by him that when the petitioner sent his son to the opposite party for getting back his landed property, the latter refused to reconvey the land alleging that the sale made by the petitioner was a sale out and out. 14. D.W. 1, Arman Bibi in her deposition states that she purchased the disputed property at a price of Rs.2000/-; that there was no agreement for the reconveyance of the property; that she had exchanged her property with the property of one, Fakir Ali Sardar; and that the petitioner had not sold the property owing to poverty. . 15. It appears from the evidence-on-record that the petitioner was solely dependent on his landed property measuring .43 decimal. It is his case for obtaining the loan of Rs.1800/-. He sold the land to the opposite party accompanied by an oral agreement of reconveyance. At that time it was agreed by the parties that on repayment of the loan the land would be reconveyed. It is evident that he had to enter into this transaction to meet his distress. After some time when the petitioner sent his son to the opposite party for getting his land reconveyed, the opposite party refused to reconvey the land. 16. Considering the circumstances and having regard to the common course of human conduct, this Court is of the view that the petitioner parted with his landed property without retaining anything for himself for obtaining the loan to tide over his distress. 17. In the circumstances it is found that the petitioner's case of sale with an oral agreement for reconveyance has been proved. Accordingly the opposite party and subsequent transferee Fakir Ali Sardar are directed to reconvey the suit property to the petitioner within two months from the date of the communication of this order. 18. Accordingly the present revisional application is allowed in terms of the above directions and the orders passed by the Special Officer and Sub-Divisional Officer are hereby set aside. 19. No order as to costs. Revisional application allowed.