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2011 DIGILAW 1249 (CAL)

Dibakar Ghosal v. Harihar Mukhopadhyay

2011-09-09

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This application is directed against the order dated August 26, 2006 passed by the learned Additional District Judge, 1st Court, Purulia in Misc. Appeal No.40 of 1997 thereby setting the order dated September 19, 1997 passed by the learned Munsif, Raghunathpur in Misc. Case No.53 of 1994. The petitioners filed an application being Misc. Case No.53 of 1994 under Section 8 of the West Bengal Land Reforms Act against the opposite parties for pre-emption in respect of the land in case before the learned Munsif, Raghunathpur, District Purulia. That misc. case was allowed on contest without cost. Being aggrieved, the pre-empted filed a misc. appeal being Misc. Appeal No.40 of 1997. That misc. appeal was allowed on contest without cost thereby setting aside the order of pre-emption passed by the learned Munsif, Raghunathpur, District Purulia. Being aggrieved by such orders, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the pre-emptor filed the application for pre-emption on the ground of vicinity. It is their specific case that they are the owners of the R.S. Plot No.1817 and the land in case is under Plot No.2049 and that this plot is contiguous to the plot No.1817. Relying on the R.S. record of rights, the learned First Appellate Court observed that the plaintiff cannot be the owner of the Plot No.1817 but the Plot No.1818 because this plot no. (1818) conforms to the C.S. Plot No.2214. During the argument, Mr. Asish Sanyal appearing for the Petitioner has placed a material before me on the basis of the information obtained from the concerned department of the Deputy Collector, Record Room that the R.S. Plot No.1817 conforms to the C.S. Plot No.2214. Thus, from such material and the evidence already placed before the learned Trial Judge particularly the Exhibit No.A, it appears that the contrary materials are appearing. So, a clarification is needed and for that reason, additional evidence is required for settling the dispute between the parties once for all. Thus, from such material and the evidence already placed before the learned Trial Judge particularly the Exhibit No.A, it appears that the contrary materials are appearing. So, a clarification is needed and for that reason, additional evidence is required for settling the dispute between the parties once for all. Accordingly, I am of the view that the proper recourse will be to set aside the impugned order and the Appellate Court should take appropriate steps for additional evidence under Order 41 Rule 27 either suo motu or at the instance of the petitioner. He may direct the petitioner to file an appropriate application under Order 41 Rule 27 of the C.P.C. for adducing additional evidence. After taking such recourses, he shall dispose of the appeal in accordance with law. Accordingly, I am of the view that this revisional application should be allowed. Therefore, the revisional application is allowed. The impugned order is hereby set aside. The learned Additional District Judge, 1st Court, Purulia is directed to take steps under Order 41 Rule 27 suo motu or to ask the petitioner to file an appropriate application under Order 41 Rule 27 of the C.P.C. for additional evidence. Such exercise of power must be done within a period of 30 days from the date of communication of this order to him. Thereafter, he shall deal with the misc. appeal in accordance with law. Considering the circumstances, there will be no order as to costs. It is recorded that I have not gone into the merit of the matter in dispute and that the learned Appellate Court shall dispose of the misc. appeal on the basis of the materials placed before him by the parties in accordance with law.