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2012 DIGILAW 423 (CAL)

Kalipada Maity v. Nakul Chandra Santra

2012-05-09

PRASENJIT MANDAL

body2012
Judgment :- Prasenjit Mandal, J. This application is at the instance of a pre-emptee and is directed against the judgment dated March 31, 2007 passed by the learned Additional District Judge, Fast Track 2nd Court, Contai in Misc. Appeal No.32 of 2006 thereby reversing the Order No.27 dated January 18, 2005 passed by the learned Civil Judge (Junior Division), 1st Court, Contai in Misc. Case No.55 of 2001 and thereby rejecting the Misc. Case under Section 8 of the West Bengal Land Reforms Act, 1955. The opposite party instituted an application under Section 8 of the West Bengal Land Reforms Act, 1955 for pre-emption against the petitioner in respect of the land in case. The said application was contested by the petitioner/opposite party. On the basis of the evidence on record, the learned Trial Judge dismissed the said application being registered as Misc. Case No.55 of 2001. The pre-emptor preferred a Misc. Appeal being Misc. Appeal No.32 of 2006 and that Misc. Appeal was allowed on contest without costs. Consequently, the application under Section 8 of the West Bengal Land Reforms Act, 1955 in respect of the land in case was allowed by the impugned order. Being aggrieved, 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 it is not in dispute that Dharanidhar Mandal was the owner of 38 decimals of land under Plot No.3699 as described in the schedule of the application under Section 8 of the 1955 Act. As per materials-on-record, Dharanidhar Mandal sold 16 decimals of land from the western portion of that plot to the pre-emptee by a registered Deed of Sale dated April 6, 1984. After transfer of such 16 decimals of land Dharanidhar possessed the remaining 22 decimals of land in the said Plot No.3699. The pre-emptor has contended that he is an adjoining plot holder bearing No.3699/4295. Dharanidhar had again sold western side of the Plot No.3699 out of his remaining 22 decimals of land to the pre-emptee by a registered Deed of Sale dated April 4, 2001 and this piece of land is described as ‘Ka’ Schedule land. This ‘Ka’ schedule land is adjacent to the land of the pre-emptor as indicated above having common boundary through its north-eastern border. This ‘Ka’ schedule land is adjacent to the land of the pre-emptor as indicated above having common boundary through its north-eastern border. So, the application for pre-emption was filed on the ground of vicinity. As indicated above, the pre-emptee purchased 16 decimals of land out of the Plot No.3699 long time back and this portion of land is situated to the western side of the Plot No.3699. The land in case as described in Schedule ‘Ka’ to the application is situated towards adjacent east of the portion of the land purchased by the pre-emptee earlier. It may be noted herein that the present pre-emptor did not prefer any application for preemption in respect of the land purchased by the pre-emptee in 1984 to the tune of 16 decimals as stated above. As per materials-on-record, there is no indication that such 16 decimals of land had been partitioned in accordance with the provisions of Section 14 of the 1955 Act. So, unless and until the said portion of 16 decimals of land is demarcated by partition according to Section 14 of the said Act, it shall be presumed that the pre-emptee became a co-sharer of the Plot No.3699 by the Deed of Purchase dated April 6, 1984. The co-sharer of a raiyat in a plot of land has been defined in Section 2(6) of the 1955 Act and for convenience, the said Section 2(6) is mentioned below:- “ A co-sharer of a raiyat in a plot of land” means a person, other than the raiyat, who has an undemarcated interest in the plot of land along with the raiyat; For convenience, the definition of a raiyat as stated in Section 2(10) is also mentioned below:- “raiyat means a person or an institution holding land for any purpose whatsoever;” So, the pre-emptee shall be treated as a co-sharer of the Plot No.3699. Since, no application for pre-emption was sought for by the pre-emptor in respect of the Deed dated April 6, 1984 against the pre-emptee and since by the fact that, by lapse of time and for non-compliance of Section 14 of the 1955 Act, the pre-emptee shall be treated as a co-sharer of the plot in case, the pre-emptee had become a co-sharer of the plot in case by virtue of the Sale-Deed dated April 6, 1984. Mr. Mr. Nirmal Kumar Dey, learned Counsel appearing for the petitioner has referred to the decision of Ashima Dutta & Anr. v. Chandra Nath Bhattacharya reported in 2005(2)CHN 139 and thus, he submits that when the pre-emptor decided not to pre-empt first transaction – After first transaction the pre-emptees already became co-sharer of the land – Application for pre-emption made during second transaction - The pre-emptee is eligible to resist the application for pre-emption in respect of the second transaction on the basis of his absolute right accrued by virtue of the first transaction. This being the position, I am of the view that this decision is fully applicable in the instant situation. The preemptor/ opposite party herein is not entitled to an order of preemption. Mr. Dey has next referred to the decision of Hiru Sepai v. Sulta Sepai reported in 1975 (1)CLJ 13 and thus, he submits that the right of pre-emption of a co-sharer is an overriding right and cannot be defeated by second transfer or transfers provided the right of pre-emption exists and has not been otherwise extinguished. In the instant case, the pre-emptee being a co-sharer, when he purchased the land in case as described in Schedule ‘Ka’ of the application, the pre-emptor is not entitled to get an order of preemption in respect of the land in case. So, this decision will also be applicable in the instant case. In view of the above position, the pre-emptee has right to resist the claim of pre-emption of the opposite party. The opposite party herein has contended that he has land as described in Schedule ‘A’ to the application and he is an adjacent owner. He has contended that he has land towards north-eastern side of the land in case as described in Schedule ‘Ka’ of the application. Without going into details whether the opposite party has adjacent land or not if for argument’s sake, it is presumed that the opposite party has land adjacent to the land in case, yet land in case having been sold to the co-sharer (petitioner herein), the question of pre-emption as provided in Section 8 of the 1955 Act does not arise at all. Accordingly, the opposite party is not entitled to get any order of pre-emption. The learned Lower Appellate Court while deciding the Misc. Accordingly, the opposite party is not entitled to get any order of pre-emption. The learned Lower Appellate Court while deciding the Misc. Appeal has opined that the ‘A’ Schedule of the land has common boundary with ‘Ka’ Schedule land on its northeast side. Hence, pre-emption right accrues on the ground of vicinity. But, I find that the Lower Appellate Court has failed to consider the aspect whether the pre-emptee is a co-sharer or not on the basis of his purchase of a portion of the plot in case by a Sale-Deed dated April 6, 1984. In that view of the matter, the impugned judgment and order dated March 31, 2007 passed by the learned Additional District Judge, Fast Truck, 2nd Court, Contai in Misc. Appeal No.32 of 2006 cannot be supported. The application is, therefore, allowed. The impugned order is hereby set aside. The order of the learned Trial Judge dated May 31, 2001 is hereby affirmed but on different ground as indicated above. Accordingly, the pre-emptor is at liberty to withdraw the money deposited by him before the learned Trial Judge. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocate for the parties on their usual undertaking.