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2005 DIGILAW 526 (CAL)

SUBIR KUMAR NAG v. SK. MOHAMMAD SHAHANAWAJ

2005-08-12

JYOTIRMAY BHATTACHARYA

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Jyotirmay Bhattacharya ( 1 ) THIS application under Article 227 of the Constitution of India is directed against an order being Order No. 27 dated 7th February, 2005 at the instance of the pre-emptee/petitioner. ( 2 ) LET me give the short background of the dispute between the parties leading to the filing of this revisional application. ( 3 ) THE pre-emptee/petitioner filed a suit for partition against the pre-emptor/opposite party in respect of the plot of land which is also the subjectmatter of the pre-emption proceeding filed by the opposite party against the petitioner herein. The said suit which was filed in the Court of the Civil judge, Senior Division at Midnapur was registered as Title Suit No. 331 of 1999. ( 4 ) SUBSEQUENTLY, the opposite party/pre-emptor filed an application under Sections 8 and 9 of the West Bengal Land Reforms Act for exercising his right of pre-emption in respect of the petitioner's purchase of the land before the learned Civil Judge, Junior Division, 1st Court at Midnapore. ( 5 ) IN connection with the pre-emption proceeding, the pre-emptee/ petitioner filed an application, inter alia, praying for stay of the further proceeding of the pre-emption case till the disposal of the partition suit on the ground that the parties in the partition suit as well as in the pre-emption case are same and identical and the subject-matter of the dispute in the partition suit as well as in the pre-emption case are also similar to each other. ( 6 ) THE petitioner also claims that the fate of the pre-emption proceeding is dependant upon the fate of the partition suit. ( 7 ) UNDER such circumstances, the petitioner prayed for stay of further proceedings of the pre-emption case till the disposal of the partition suit. ( 8 ) THE learned Trial Judge by the order impugned rejected the petitioner's said application for stay by holding, inter alia, that since issues involved in the partition suit as well as in the pre-emption case are distinctly different from each other, conditions for grant of stay under Section 10 of the Code of Civil Procedure are not satisfied in the instant case ( 9 ) SUCH an order of rejection of the pre-emptee's application for stay, is under challenge in this revisional application. ( 10 ) HEARD the learned Advocates of the parties. Considered the materials-on-record. ( 11 ) MR. ( 10 ) HEARD the learned Advocates of the parties. Considered the materials-on-record. ( 11 ) MR. Mahato, learned Advocate, appearing for the petitioner, submits that though it is true that there is no common issue between the parties in the partition suit as well as in the pre-emption case, but still then the decision in the partition suit has a direct bearing on the dispute involved in the pre-emption proceeding. ( 12 ) MR. Mahato further submits that since the partition suit was filed earlier, the proceedings in connection with the pre-emption case should remain stayed for avoiding a conflict of decision. ( 13 ) IN support of such submission, Mr. Mahato also relied upon a division Bench decision of this Court in the case of Arun General Industries ltd. v. Rishabh Manufacturers Private Ltd. and Ors. , reported in AIR 1972 cal. 128 . Relying upon the said judgment Mr. Mahato submits that the learned Trial Judge acted illegally and with material irregularity in rejecting the petitioner's said application for stay when at least some of the issue in the partition suit as well as in the pre-emption proceeding are substantially the same with each other. ( 14 ) MR. Mitra, learned Advocate, appearing for the opposite parties, refuted the said submission of Mr, Mahato by submitting that the decision on the issues involved in the partition suit has no bearing on the dispute involved in the pre-emption case, inasmuch as, the pre-emptor/opposite party has applied for pre-emption on the ground of vicinage and not on the ground of co-sharership. In such a proceeding, the Court will have to consider as to whether the pre-emptor possesses land contiguous to the case land or not. If it is found that the pre-emptor is the contiguous owner of the case land then the prayer for pre-emption will be allowed. On the contrary, if it is found that the pre-emptor is not the owner of the contiguous land, then his prayer for pre-emption will be rejected. Consideration of such a dispute can be done independent of the partition suit. As a matter of fact, such a consideration is absolutely foreign to the partition suit. As such, both the said suit and the pre-emption case, are independent of each other. ( 15 ) MR. Consideration of such a dispute can be done independent of the partition suit. As a matter of fact, such a consideration is absolutely foreign to the partition suit. As such, both the said suit and the pre-emption case, are independent of each other. ( 15 ) MR. Mitra also relied upon another decision of the Division Bench of this Court in the case of Shaw Wallace and Co. Ltd. v. Bholanath Mandanlal sherawala and Ors. , reported in AIR 1975 Cal. 411 wherein the earlier decision of this Court which was cited by Mr. Mahato has been explained. By relying upon the said decision, Mr. Mitra submits that it is only when the decision in one suit will non-suit the other, then the further proceedings of the subsequent suit may be stayed. ( 16 ) IN effect, Mr. Mitra, submits that when the decision in one suit operates as res judicata on the issue involved in the other suit then only further proceedings of the subsequent suit may be stayed and not otherwise. ( 17 ) I fully agree with the submission of Mr. Mitra to the effect that unless the decision in one suit, non-suit the other, the further proceedings of the subsequent suit cannot be stayed under Section 10 of the Code of civil Procedure. It is true that all the issues in both the suits need not be similar to each other and if some of the issues are similar and/or identical to each other, then also the further proceedings of the subsequent suit can be stayed. ( 18 ) THE issues involved in the partition suit as well as in the preemption cases are distinctly different from each other. ( 19 ) SUIT for partition is filed for severance of joint interest of the joint owners in the joint property. Pre-emption case is filed to exercise the right of re-transfer either by a co-sharer or by an adjoining owner or by a bargadar. ( 20 ) IN the present case, application for pre-emption has been filed on the ground of vicinage. The only point which is required to be determined in such a case is as to whether the pre-emptor possesses any land adjoining the case land or not. ( 21 ) IF the answer is the affirmative, then prayer for pre-emption will be allowed. The only point which is required to be determined in such a case is as to whether the pre-emptor possesses any land adjoining the case land or not. ( 21 ) IF the answer is the affirmative, then prayer for pre-emption will be allowed. On the contrary, if the answer is in the negative, then the prayer will be rejected. The scope of determination in a partition suit is completely different from that of a pre-emption case. The determination of one suit cannot non-suit the other. ( 22 ) AS such, the proceedings in the pre-emption case cannot be stayed as prayed for. Accordingly, I find no substance in this application. The revisional application, thus, fails. Apart from the reasons, as aforesaid, this Court sitting in this jurisdiction under Article 227 of the Constitution cannot interfere with the order impugned as the learned Trial Judge did not exceed its limit and/or bound in passing the order impugned. Since a common question has arisen in the other two matters being c. O. No. 966 of 2005 and C. O. No. 967 of 2005, the decision passed in this matter will govern the fate of the other two revisional applications. Urgent xerox certified copy of this order, if applied for, be given to the parties as expcditiously as possible.