Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 444 (CAL)

Sk. Sirajuddin Mondal v. Samsunnesha

2012-05-11

PRASENJIT MANDAL

body2012
JUDGMENT Prasenjit Mandal, J. 1. This application is at the instance of the pre-emptees and is directed against the order dated December 13, 2006 passed by the learned District Judge, Hooghly in Misc. Appeal No. 94 of 2005 thereby affirming the Order No. 67 dated July 30, 2005 passed by the learned Civil Judge (Junior Division), 1st Court, Serampore in Misc. Case No. 29 of 1995 under section 8 of the West Bengal Land Reforms Act, 1955. The pre-emptors/opposite parties and the proforma opposite parties Nos. 4 to 6 had right, title and interest over the 'Ka' schedule pond and they were carrying on pisciculture therein and they took shares of the usufructs according to their shares in the said property. By a Deed of Sale dated January 9, 2005, the pre-emptees/petitioners herein purchased a portion of the said pond from the opposite party Nos. 4 to 6 and the said purchased property, i.e., the land in case had been described in Schedule 'Kha' to the application. The pre-emptors did not get any notice of such sale. They are the co-sharers of the said land in case and they have the longest common boundary with the land in case and as such, they have prayed for preemption under section 8 of the West Bengal Land Reforms Act, 1955 and they have complied with the terms of the said section for that purpose. 2. The petitioners have contested the said application for pre-emption denying the material allegations contained in the application for pre-emption and they have specifically stated that when they purchased the 'Kha' schedule property on January 9, 2005, the pre-emptors did not come forward in spite of knowledge. The pre-emptees have their property and homestead situated towards East and South of the land in case. The property in case is a pond and it is impartible and as such, the application under section 8 of the said Act of 1955 is not maintainable and it is liable to be dismissed. 3. Both the parties adduced evidence and on the basis of the evidence on record, the learned Trial Judge allowed the application for pre-emption holding that the valuation of the property would be to the tune of Rs. 7,500/- and as such, the pre-emptors had been directed to deposit the balance amount within 60 days from the date of the order of the learned Trial Judge. 4. 7,500/- and as such, the pre-emptors had been directed to deposit the balance amount within 60 days from the date of the order of the learned Trial Judge. 4. Being aggrieved by such order, the pre-emptees preferred an appeal being Misc. Appeal No. 94 of 2005 and the said misc. appeal was also dismissed in part. The pre-emptors had been directed to deposit the consideration money of Rs. 18,000/- plus 10 per cent of the same (as the consideration money was shown to the tune of Rs. 18,000/-) less the amount already deposited, within 90 days from the date of communication of the order to the Court below in default, the prayer for pre-emption should stand defeated. Then the pre-emptees have then preferred this revisional application. 5. Now, the question is whether the impugned order should be sustained. 6. Upon hearing the learned counsel for the parties and on going through the materials on record. I find that it is a case of affirmance in respect of a prayer for pre-emption over the land in case. By the order dated July 30, 2005, the learned Trial Judge allowed the Misc. Case No. 29 of 1995 holding that the pre-emptors/opposite parties herein were entitled to get an order of pre-emption and accordingly, they had been directed to deposit the balance amount. 7. The learned Court of Appeal had also come to the same finding thereby affirming the order of the learned Trial Judge save the amount of the consideration money. The Appellate Court had come to the findings that as per evidence on record, the pre-emptors were entitled to get an order of pre-emption in respect of the land in case and that the consideration money of the sale of the land in question should be taken at Rs. 18,000/- as shown in the deed in question. Thus, I find that both the Courts below have come to concurrent findings over the self-same matter' and such findings are based on evidence on record. 8. The learned Trial Judge has analyzed the evidence and he has concluded that the pre-emptors have share in the undemarcated land in question and as such, they are the co-sharers in respect of the land in question. 8. The learned Trial Judge has analyzed the evidence and he has concluded that the pre-emptors have share in the undemarcated land in question and as such, they are the co-sharers in respect of the land in question. The Appellate Court has also observed that the O.P.W. No. 1, while deposing on behalf of the pre-emptees has admitted that the pre-emptors has 6 annas share of the land in question and he had no share in the 'Kha' schedule land (that is, the pre-emptees are the strangers purchasers). The exhibit Nos. 3 series and 4 clearly indicate that the pre-emptors are the co-sharers of the suit property. Therefore, from the admission of the pre-emptee as well as the materials on record, I find that the pre-emptors have proved that they are the co-sharers as well as the adjoining land owners having the longest boundary with the land in question. Accordingly, the learned Trial Judge granted the order of pre-emption as prayed for. 9. So far as the valuation is concerned, I find that the pre-emptors have contended that the valuation of the land in case would be to the tune of Rs. 5,000/- only but an inflated valuation of Rs. 18,000/- has been mentioned in the sale deed in question. At present, the valuation of the property is determined according to the locality as decided by the concerned authority. 10. Moreover, the pre-emptors were not present at the time of making payment and they want to pre-empt the land. Upon analysis of the entire circumstances, the learned Appellate Court has come to a finding that the valuation should be accepted as Rs. 18,000/- as noted in the deed in question. In support of his findings, the learned Appellate Court has stated reasons which cannot be ignored. 11. Accordingly, I am of the view that the learned Appellate Court has come to a correct finding in affirming the order of pre-emption as passed by the learned Trial Judge with modification to the extent as to the valuation of the property in case. The impugned order, therefore, does not suffer from any perversity at all. 12. Accordingly, I am of the view that there is no scope of interference with the impugned order. The application is, therefore, dismissed. The impugned order, therefore, does not suffer from any perversity at all. 12. Accordingly, I am of the view that there is no scope of interference with the impugned order. The application is, therefore, dismissed. However, since the time to make payment/deposit of the balance amount has already expired, the re-emptors/opposite parties herein are directed to deposit the balance amount as per direction of the learned District Judge dated December 13, 2006 within a period of 30 (thirty) days hereof without fail, failing which the application for pre-emption shall be deemed as dismissed without any reference to this Court. 13. There will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.