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2005 DIGILAW 182 (CAL)

REJAUL KARIM v. THAKURANI BASKEY

2005-03-16

JYOTIRMAY BHATTACHARYA

body2005
Jyotirmay Bhattacharya, J. ( 1 ) THIS application under section 115 of the Code of Civil Procedure challenging, inter alia, the judgment and order dated 30th March, 2004 passed by the learned Additional District Judge, Malda, in Appeal Case No. 5 of 2002 affirming the judgment and order dated 20th December, 2001 passed by the learned Civil Judge (Junior Division), 2utt Court at Malda in Misc. Case no. 75 of 1982, has been filed by the pre-emptee/judgment-debtor in a proceeding for pre-emption under section 8 of the West Bengal Land Reforms act. ( 2 ) THE pre-emptor/petitioner filed, an application for exercising his right of pre-emption in respect of sale of two plots of land being plot Nos. 1330 and 1338 having an area of 1. 43 acres and. 21 acre of land respectively by his co-sharer to Smt. Thakurani Baskey. ( 3 ) THE sale which was sought to be pre-empted by the pre-emptor was effected by registered Deed of Kobala dated 4th August, 1970. Since, the said sale was effected prior to West Bengal Land Reforms (Amendment)Act, 1972 came into operation, the said application for pre-emption was filed by the pre-emptor before the concerned Revenue Officer who by his order dated 4th May, 1972 allowed the said prayer for pre-emption. ( 4 ) WHEN the said order was put into execution, it was detected that in view of the amendment of the West Bengal Land Reforms (Amendment)Act, 1972 which came into effect from 15th February, 1971, the Revenue officer had no jurisdiction to pass the said order of pre-emption. Accordingly, in view of the amended provision of the said Act, the said pre-emption proceeding was transferred to the Court of the learned Munsif, 2nd Court at malda. ( 5 ) THE learned Munsif, however, by his Order No. 9 dated 12"' August, 1972 rejected the said application for pre-emption on the on the point of maintainability. ( 6 ) BEING aggrieved by, and dissatisfied with, the said order of rejection, the pre-emptor decree holder filed a revisional application being Civil Rule no. 3390 of 1972 before this Court, The said civil rule was subsequently made absolute and the learned Munsif, 2nd Court at Malda was directed to adjudicate the application for pre-emption on merit. ( 6 ) BEING aggrieved by, and dissatisfied with, the said order of rejection, the pre-emptor decree holder filed a revisional application being Civil Rule no. 3390 of 1972 before this Court, The said civil rule was subsequently made absolute and the learned Munsif, 2nd Court at Malda was directed to adjudicate the application for pre-emption on merit. ( 7 ) AFTER remand, the said pre-emption proceeding was ultimately dismissed ex parte by the learned Munsif, 2nd Court at Malda vide Order no. 30 dated 20th January, 1979. The pre-emptor challenged the said order of dismissal of the pre-emption proceeding in appeal being Misc. Appeal No. 19 of 1979 before the learned District Judge, Malda. The said appeal was subsequently transferred to the Court, of the learned Sub-Judge, Malda (now designated Civil Judge, Sr. Division ). The learned Sub-Judge at Malda allowed the said appeal ex parte by setting aside the said order of dismissal on 17th december, 1980. Pursuant to the said order, allowing the pre-emptor's prayer for pre-emption, the pre-emptor took delivery of possession of the plots of land in question through Court on 1. 5th November, 1981. ( 8 ) THEREAFTER, the pre-emptee filed an application under Order 41 Rule 21 of the Civil Procedure Code for rehearing of the said appeal after setting aside the ex parte order of pre-emption. But, the said application was dismissed by the learned Appellate Court with the observation that "order in Misc. Appeal No. 19/79 is a nullity and without jurisdiction". ( 9 ) BEING emboldened with the said observation, the pre-emptee filed an application under section 144 of the Civil Procedure Code before the learned trial Judge for restoration of possession of the lands in question giving rise to a miscellaneous proceeding being Misc. Case No. 75 of 1982. The said miscellaneous proceeding was allowed by the learned Trial Judge and thus the pre-emptor/decree holder was directed to deliver khas and vacant possession of the suit land to the pre-emptee within three months from the date of the order. ( 10 ) CHALLENGING the said order, an appeal was filed by the pre-emptor decree holder being Title Appeal No. 5 of 2002. The said appeal was also dismissed on contest by the learned Additional District Judge, 2nd Court at malda on 30th March, 2004. ( 10 ) CHALLENGING the said order, an appeal was filed by the pre-emptor decree holder being Title Appeal No. 5 of 2002. The said appeal was also dismissed on contest by the learned Additional District Judge, 2nd Court at malda on 30th March, 2004. The learned Additional District Judge, 2nd Court at Malda held that since the order of pre-emption was passed by a Court lacking inherent jurisdiction, the order of pre-emption is a nullity and as such the possession which was taken by the pre-emptor through Court pursuant to the said void order of pre-emption, is liable to be restored to the pre-emptee. ( 11 ) SUCH an order is under challenge before this Court in this revisional application. ( 12 ) HEARD the learned Advocate for the petitioners. ( 13 ) LET me now consider the legality of such an order. ( 14 ) SUB-SECTION (6) of section 9 of the West Bengal Land Reforms Act prescribes the appellate forum in case of a pre-emption appeal in the following way: "9 (6 ). Any person aggrieved by an order of the Munsif under this section may appeal to the District Judge having jurisdiction over the area in which the land is situated, within thirty days, from the date of such order and the District Judge shall send a copy of his order to the Munsif. The fees to be paid by the parties and the procedure to be followed by the district Judge shall be such as may be prescribed. " ( 15 ) HERE in the instant case though the appeal was filed before the learned district Judge but the same was transferred to the Court of learned Sub-Judge now designated as Civil Judge, Sr. Division. ( 16 ) NOW, the question is as to whether the Sub-Judge, being a Transferee court, was competent to hear the said appeal or not? Division. ( 16 ) NOW, the question is as to whether the Sub-Judge, being a Transferee court, was competent to hear the said appeal or not? ( 17 ) THE said question was answered by the Division Bench of this'hon'ble court in the case of P. N. Mondal vs. B. B. Mondal, reported in 86 CWN at page 49 wherein it was held that sub-section (6) of section 9 of the said Act not only confers the right of appeal but also fixes the forum, namely the court of the District Judge, which in view of the provisions of section 8 (2) of the Bengal, Agra and Assam Civil Courts Act may include on assignment the Court of the Additional District Judge appointed for the District. ( 18 ) THE Division Bench of this: Hon'bfe Court further held in the said decision that section 24 (1) of the Code of Civil Procedure can only be attracted if section 22 of the Bengal, Agra and Assam Civil Courts Act can be invoked to confer upon the Subordinate Judge the jurisdiction to hear and dispose of an appeal preferred under section 9 (6) of the West Bengal Land Reforms act. ( 19 ) THEIR Lordships further held in the said decision that the orders referred to in section 21 of the Bengal, Agra and Assam Civil Courts Act mean orders passed in suits or proceedings arising out of suits and thus the orders of the Munsif passed in a pre-emption proceeding are not orders within the meaning of section 21 (20 of the said Act because the said orders were not passed in a suit or proceeding arising out of a suit. ( 20 ) THUS, the Division of this Hon'ble Court ultimately held that unless the Court of the learned Subordinate Judge is otherwise a Court competent to hear and to dispose of such an appeal, the learned District Judge cannot transfer the appeal to the said Court for hearing and disposal in exercise of his power under section 24 of the (Code of Civil Procedure. ( 21 ) HAVING regard to the principle as laid down in the said decision of this Hon'ble Court, I have no other alternative but to conclude that the order allowing pre-emption which was passed by the learned Subordinate judge in appeal is a nullity as the Court passing the said order of pre-emption was lacking jurisdiction inherently. If that be so, then I find that the possession which was taken by the pre-emptor through Court in execution of an order of pre-emption which is nullity in the eye of law, cannot be allowed to be retained by the pre-emptors in any way. ( 22 ) THEREFORE, the learned Courts below, did not commit any illegality and/or material irregularity in allowing the prayer of the pre-emptee/opposite party for restitution of possession. ( 23 ) A question may now arise that as to whether in such situation Court was justified in allowing the prayer of the opposite party for restitution of possession under section 144 of the Code of Civil Procedure, particularly when the order allowing the prayer for pre-emption was neither reversed nor modified nor varied either by the Appellate Court or by the Revisional court and more so, when the application of the opposite party under Order 41 Rule 21 of the Code of Civil Procedure was rejected by the Appeal Court. It is no doubt true that application for restitution under section 144 of the civil Procedure Code can be allowed only when the decree or an order is varied or reversed in any appeal, [revision or other proceeding or is set aside or modified in any suit instituted for the purpose. ( 24 ) THE said condition is, of course not satisfied in the instant case and as such the provisions under sextion 144 of the Code of Civil Procedure cannot be invoked in such a case. But, the Court's power to restore possession under section 151 of the Code of Civil Procedure is not unknown as the division Bench of this Hon'ble Court in the case of Sufal Chandra Golui and ors. But, the Court's power to restore possession under section 151 of the Code of Civil Procedure is not unknown as the division Bench of this Hon'ble Court in the case of Sufal Chandra Golui and ors. vs. Surendra Nath Dhara, reported in 60 CLJ 44 held that the power of the Court to grant restitution is not confined to cases covered by the provisions of section 144 of the Code of Civil Procedure but it extends to other cases also as the Court has an inherent right under section 151 of the code of Civil Procedure to order restitution irrespective of section 144. ( 25 ) THE Hon'ble Supreme Court also in the case of Kavita Trehan vs. Balsara Hygiene Products Ltd. , reported in AIR 1995 SC 441 , enunciated the same principle of law by holding, as follows: "15. Section 144, C. P. C. incorporates only a part of the general law of restitution. It is not exhaustive. See Gangadhar vs. Raghubar Dayal, air 1975 All 102 (FB) and State of Andhra Pradesh vs. Manickchand jeevraj and Co. , Bombay, AIR 1. 973 AP 27. The jurisdiction to make restitution is inherent in every Court and will be exercised wherever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of section 144. Section 144 opens with the words 'where and insofar as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose. . . . '. The instant case may not strictly fall within the terms of section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every Court. . . . '. The instant case may not strictly fall within the terms of section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every Court. " ( 26 ) HAVING regard to the aforesaid principles of law enunciated by the hon'ble Supreme Court as well as by the Division Bench of this Hon'ble court as aforesaid, I have no hesitation to hold that the learned Courts below did not commit any illegality and/or material irregularity in allowing the prayer for restitution of possession made by the opposite party/judgment-debtor when both the learned Courts befow concurrently and rightly found that the order allowing pre-emption by the Subordinate Judge in appeal was a nullity, as the Appellate Court was lacking jurisdiction inherently to try the said appeal in view of section 9 (2) of the West Bengal Land Reforms act. ( 27 ) I, however, make it clear that application of a wrong provision of law in the instant case does not materially affect the ultimate decision which the learned Courts below arrival at while passing the order impugned, as the Court's power to pass order of restitution under section 151 of the Code of Civil Procedure in such circumstances is recognised by the Hon'ble supreme Court, as indicated above. ( 28 ) IN such view of the matter, I find no merit in this application. The application, thus, stands rejected. ( 29 ) THERE will be, however, no order as to costs. ( 30 ) URGENT xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. Jyotirmay Bhattacharya, J. : application rejected.