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2011 DIGILAW 1419 (CAL)

Asit Kumar Basu v. Kalyan Kumar Ghosh

2011-11-15

PRASENJIT MANDAL

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JUDGMENT Prasenjit Mandal 1. CHALLENGE is to the judgment and order dated September 4, 2008 passed by the learned Additional District Judge, 3rd Court, Barasat in Misc. Appeal No.102 of 1992 thereby affirming the Order No.50 dated March 21, 1992 passed by the learned Munsif, 2nd Court, Barasat in Misc. Case No.36 of 1982. 2. THE petitioner herein is the pre-emptor and he filed an application under Section 8 of the West Bengal land Reforms Act against the opposite party herein for pre-emption in respect of the land in case as mentioned in the schedule of the said application and such application was registered as Misc. Case No.36 of 1982. The petitioner has contended that the opposite party is a stranger purchaser of the land in case. The petitioner has claimed pre-emption over the land in case on the ground of cosharership. The matter is contested and the learned Trial Judge has dismissed the said misc. case on the ground of limitation. Being aggrieved, the petitioner preferred a misc. appeal being Misc. Appeal No.102 of 1992 and the said misc. appeal was also dismissed by the impugned order. Being aggrieved, this application has been preferred. At the time of beginning of the argument, Mr. B.K. Banerjee, Senior Advocate for the petitioner has contended that this application should be allowed after setting aside the impugned judgment and order on the ground that the First Appellate Court has committed errors of law in arriving at a conclusion that the petitioner cannot exercise the right of pre-emption in view of the provisions of Section 2(g) and 23 of the West Bengal Land Holding Revenue Act, 1979. 3. ON the other hand, learned Advocate for the opposite party has submitted that the provisions of the West Bengal Holding Revenue Act, 1979 will not apply, but, the learned Trial Judge has rightly dismissed the misc. appeal on merits. Therefore, the order should be sustained. 4. IN view of the submissions made by the learned advocates of both the sides, I am to consider whether the learned Trial judge was justified in dismissing the misc. appeal on the ground stated in the body of the judgment. appeal on merits. Therefore, the order should be sustained. 4. IN view of the submissions made by the learned advocates of both the sides, I am to consider whether the learned Trial judge was justified in dismissing the misc. appeal on the ground stated in the body of the judgment. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the alleged sale on which pre-emption had been sought for in respect of the land in case took place on April 22, 1981. The petitioner has contended that he was not served with a notice under Section 5(5) of the West Bengal Premises Tenancy Act. The learned First Appellate Court has concluded that the application for pre-emption was filed by the petitioner within the period of limitation in view of the provisions of Section 137 of the Limitation Act. Since, it is not a matter of dispute for the purpose of disposal of this revisional application, this matter is not considered at all in this revisional application and it is left open for decision afresh. 5. WHAT I find that the learned Trial Judge has dismissed the misc. appeal on the ground that the land in case transferred by the previous owner, namely, Arati Rani Basu to the opposite party no.1 constitutes a separate holding and it is a well-demarcated and having a separate entity and thus, he has concluded that the land in case constitutes a separate holding and as such, the petitioner cannot claim the right of pre-emption as per Section 8(1) of the West Bengal Land Reforms Act and thus, he has dismissed the said misc. appeal holding that the petitioner is not a co-sharer in respect of the land in case and coming to this conclusion, he has considered the provisions of Section 2(g) and 23 of the West Bengal Land Holding Revenue Act, 1979. 6. IT may be noted herein that the West Bengal Land Holding Revenue Act, 1979 has been abolished and as such, the applicability of the relevant Sections of 2(g) and 23 of the said Act, 1979 does not arise at all. Therefore, without making any discussion in details, I have no other alternative but to conclude that the judgment and order impugned herein cannot be supported. Therefore, without making any discussion in details, I have no other alternative but to conclude that the judgment and order impugned herein cannot be supported. The learned First Appellate Court has committed a wrong and has failed to take note of the fact that the West Bengal Land Reforms Act had undergone drastic changes in the year 2000 and accordingly, Section 8 has been amended and according to the provisions of West Bengal Land Reforms (Amendment) Act, 2000, such change of Section 8 of the Act has been given retrospective effect from August 7, 1969. Under the circumstances, the impugned order cannot be supported. The revisional application succeeds. It is, therefore, allowed. The impugned order is hereby set aside. The matter is sent back on remand for a fresh decision by the First Appellate Court in view of the change of Section 8 of the W.B.L.R. Act, 1955. 7. ACCORDINGLY, the learned Additional District Judge, 3rd Court, Barasat is hereby directed to hear out the Misc. Appeal o.102 of 1992 afresh within a period of four months from the date of communication of this order to him. He shall dispose of the same keeping the observations made above in his mind and in accordance with law. Considering the circumstances, there will be no order as to costs. C.A.N. No.313 of 2011:- 8. THIS application has been filed for effecting necessary repairing works, etc. Since the revisional application is disposed of, this application has been infructuous. So, no order is passed on this application. It is, however, recorded that I have not gone into the merits of the application. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.