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2014 DIGILAW 1025 (CAL)

Tapashi Mondal v. Binoy Kumar Biswas

2014-11-07

SUBRATA TALUKDAR

body2014
Judgment : Subrata Talukdar, J. In this application under Article 227 of the Constitution of India the judgment and order dated 19th February, 2013 passed by the Learned 1st Additional District Court at Nadia in Misc. Appeal No.47 of 2010 affirming the judgment and order dated 30th June, 2010 passed by the Learned Civil Court (Junior Division) at Tehatta, Nadia in Misc. Case No.16 of 2008 is under challenge. Sri Biswarup Biswas, Learned Counsel appears on behalf of the petitioners. Sri S.N.Biswas, Learned Counsel appears on behalf of the opposite parties. By the order impugned dated 19th February, 2013 the Learned Appellate Court considered the following issues:- a) That the petitioners are the pre-emptees/defendants/appellants in Misc. Case no.16 of 2008 and in Misc. Appeal No. 47 of 2010 respectively. The opposite parties are the plaintiffs/pre-emptors. b) That the case of the petitioners is that the suit plot no.1623 comprises an area of two acres of land belonging to two brothers namely, Gobinda Chandra Biswas and Upendranath Biswas. Each of the brothers have eight annas share in the suit plot. Their names were recorded in the R.S. record of rights. Upendranath died leaving behind three sons and two daughters. The five legal heirs of Upendranath as aforesaid inherited 20 decimals of land each in Upendranath’s original share of one acre. Out of the legal heirs of Upendranath, three of them, namely, two sons – Bipad Bhanjan Biswas and Prahlad Biswas and daughter namely, Makhanbala died. The plaintiff no.1/pre-emptor is the son of Bipad Bhanjan and the plaintiffs no.2 & 3 are the son and widow. The plaintiff no.4/pre-emptor is the daughter of the deceased Prahlad. All claim to be co-sharers in the suit plot. c) The petitioners have further alleged that the proforma defendant nos.3 & 4 before the Learned Trial Court, one Rohitosh Biswas and Buddhadeb Biswas sold out 8 decimals of land in the suit plot in favour of opposite parties no.1 & 2. Such sale was transacted showing excess consideration money of Rs.48,000. However, according to the petitioners only Rs.12,040 was transacted. The actual monetary value of the transaction was suppressed. d) That the petitioners all of a sudden acquired knowledge of the filing of Title Suit no.68 of 2002 in respect of 21 decimals of land before the Learned 1st Civil Court, Senior Division at Krishnanagar. However, according to the petitioners only Rs.12,040 was transacted. The actual monetary value of the transaction was suppressed. d) That the petitioners all of a sudden acquired knowledge of the filing of Title Suit no.68 of 2002 in respect of 21 decimals of land before the Learned 1st Civil Court, Senior Division at Krishnanagar. The petitioners have also alleged that the sale deed was executed without serving any notice on them under Section 5 of the West Bengal Land Reforms Act (for short the WBLR Act). e) The defendant nos.1 & 2 filed their written objection before the Learned Trial Court stating, inter alia that the opposite parties no.3 & 4 sold out their entire demarcated portion of the suit plot in respect of which the petitioners were not the co-sharers. In such view of the matter the it is alleged that no pre-emption proceeding can lie. They prayed for dismissal of the Misc. case. f) The Learned Trial Court upon consideration of the evidence was pleased to come to the conclusion that a case in favour of preemption has been made out by the petitioners. Accordingly, Misc. case no.16 of 2008 was allowed. Challenging the order of the Learned Trial Court appeal was filed by the pre-emptees. The Learned Trial Court also found that admittedly the opposite parties no.3 & 4 sold their entire 8 decimals of land in the suit plot to the opposite parties no.1 &2. g) The Ld. Appellate Court after noticing the language of Section 8 of the WBLR Act (as amended) and considering the law laid down in 2012 (2) WBLR CALCUTTA 245 in the matter of Sribas Chandra Biswas & Ors. Vs. Jiban Krishna Biswas was pleased to, inter alia, hold that the definition and status of a co-sharer of a Raiyat in the WBLR Act in respect of an undivided plot of land a portion of which has been sold to a stranger purchaser is entitled to claim preemption under Section 8 of the WBLR Act. h) On a careful perusal of the certified copy of the sale deed marked Exbt.1 the Learned Appellate Court found in the Schedule of the said deed that the suit plot is not demarcated. The Learned Court also found that there is no evidence to show that the suit plot has been lawfully partitioned. h) On a careful perusal of the certified copy of the sale deed marked Exbt.1 the Learned Appellate Court found in the Schedule of the said deed that the suit plot is not demarcated. The Learned Court also found that there is no evidence to show that the suit plot has been lawfully partitioned. Out of the total area of the suit plot being two acres out of which one acre of land belongs to the purchaser of the transferors namely, opposite parties no.3 & 4 has been transferred in “undemarcated, undivided and unpartitioned” condition to the opposite parties no.1 & 2. i) In the backdrop of the aforementioned discussion the Learned Appellate Court found no reason to interfere with the order of the Learned Trial Court allowing pre-emption. The Misc. case was accordingly dismissed. Being aggrieved by such order of dismissal, the present petitioners have filed CO 1569 of 2013 before this Court. Sri Biswaroop Biswas, Learned Counsel appearing for the petitioners has submitted as follows:- (i) That the Learned Appellate Court did not notice a previous suit instituted in respect of the suit plot being Title Suit no.68 of 2005. In view of the previous suit as instituted, the Learned Appellate Court ought to have applied its mind to the fact whether the subsequent suit can lie between the parties. (ii) The entire consideration money of Rs.48,000 has not been deposited. Only Rs.12,040 has been deposited. In such view of the matter the transfer is clearly hit by the provisions of Sections 8 and 9 of the WBLR Act. Sri Biswas further argues that in cases where there is under payment of sale value, no claim to pre-emption must be allowed to proceed. Sri Biswas submits that the suit claiming preemption must go at the threshold. In instances of short deposit Sri Biswas submits that suit cannot continue till the full deposit of the consideration money is made. He further submits that it is a principle of law that when things are required by the statute to be done in a particular manner, they can be done only in such manner and in no other manner. He points out that a period of time is prescribed in the statute with regard to depositing the consideration money. He further submits that it is a principle of law that when things are required by the statute to be done in a particular manner, they can be done only in such manner and in no other manner. He points out that a period of time is prescribed in the statute with regard to depositing the consideration money. Admittedly, full deposit of the consideration money has not been made within such time prescribed and both the Learned Trial Court and the Learned Appellate Court erred in allowing the preemption. In support of his above submission Sri Biswas relies upon the following judgments:- 2013 (3) CLJ 596; 2012 (2) CHN (CAL) 694; 1985 CWN 782; 2012 (7) SCC 738 ; 2013 (2) CHN (CAL) 453; 1999 (8) ICC 266; 2010 (4) SCC 393 ; 2005 (3) ICC; iii) Taking this Court to the pleadings in CO 1569 of 2013 Sri Biswas points out that the suit plot is exclusively within a demarcated portion. Such a demarcated portion is not eligible for transfer and merit consideration for the purpose of pre-emption. Sri Biswas points out that no preemption can be allowed in cases where the entire suit plot is sold out. Sri Biswas concludes his arguments by submitting that the perversity in the orders of both the Learned Trial Court and the Learned Appellate Court as argued by him (supra) can be interfered with by this Hon’ble Court in exercise of its jurisdiction under Article 227 of the Constitution of India. He relies upon the following decisions in support of his argument:- 2003 (6) SCC 675 & 2010 (9) SCC 385 ; Per contra, Sri S.N.Biswas, Learned Counsel appearing for the present opposite parties/pre-emptors has submitted as follows:- A) From the sale deed it is clearly evident that the sum of Rs.48,000 is admitted. In such view of the matter the argument pertaining to short deposit raised by the petitioners cannot survive. B) The Schedule of the land transferred, viz. the suit plot does not show any demarcation or partition. In view of the transfer of the demarcated portion of land, the principles applied by the Learned Appellate Court following the judgment of this Hon’ble Court reported in 2012 (2) WBLR CALCUTTA 245 (supra) shall apply. B) The Schedule of the land transferred, viz. the suit plot does not show any demarcation or partition. In view of the transfer of the demarcated portion of land, the principles applied by the Learned Appellate Court following the judgment of this Hon’ble Court reported in 2012 (2) WBLR CALCUTTA 245 (supra) shall apply. C) Sri S.N.Biswas asserts that the provisions of the statute have been followed in so far as the time limit is prescribed within which the consideration money is required to be deposited. D) Drawing the attention of this Court to Section 14 of the Transfer of Property Act, Sri S.N.Biswas submits that the partition of the plot, as alleged by the petitioners, must be done on the basis of a registered instrument. He points out that no partition has been done in terms of Section 14. Therefore, the findings of the Learned Appellate Court affirming the judgment of the Learned Trial Court on the point that an undemarcated, unpartitioned property has been transferred holds good. E) Submitting the deed of the adjacent plot of land, Sri Biswas points out that the entire consideration money was deposited by the plaintiffs/pre-emptors prior to delivery of judgment and in compliance of the order of the Learned Trial Court. According to Sri Biswas, the law is settled on the point that short deposit of the sale value is permitted subject to the deposit of the entire consideration money prior to delivery of the final order. F) The final submission made by Sri S.N.Biswas is that the suit referred to by the Learned Counsel for the petitioner is a suit for partition. Such suit for partition is different from a suit for preemption. Therefore, Learned Counsel for the opposite parties argues that the two suits are different and the filing of the first suit cannot stand in the way of consideration by both the Learned Trial Court and the Learned Appellate Court of the claim to pre-emption. Heard the parties. Considered the materials on record. In the opinion of this Court when both the Ld. Trial Court and the Ld. Appellate Court have arrived at concurrent findings of fact in favour of the present OPs, the scope of judicial review under Article 227 is restricted. Heard the parties. Considered the materials on record. In the opinion of this Court when both the Ld. Trial Court and the Ld. Appellate Court have arrived at concurrent findings of fact in favour of the present OPs, the scope of judicial review under Article 227 is restricted. In this connection this Court relies upon the judgments of the Hon’ble Apex Court reported in 2009 Volume 6 SCC page 194 in the matter of Sneh Gupta Vs. Devi Sarup & Ors. and in 2010 Volume 9 SCC Page 385 in the matter of Jai Singh & Ors. Vs. Municipal Corporation of Delhi. At para 41 of 2009 of Volume 6 SCC Page 194 the Hon’ble Apex Court held as follows:- “41.) The High Court moreover was exercising its jurisdiction under Article 227 of the Constitution of India. While exercising the said jurisdiction, the High Court had a limited role to play. It is not the function of the High Court while exercising its supervisory jurisdiction to enter into the disputed question of fact. It has not been found by the High Court that the findings arrived at by the learned Additional District judge were perverse and/or in arriving at the said findings, the learned Additional District Judge failed and/or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefor. It could intervene, if there existed an error apparent on the face of the record or, if any other well-known principle of judicial review was found to be applicable. (See Yeshwant Sakhalkar V. Hirabat Kamat Mhamai).” At paras 15 and 16 of 2010 Volume 9 SCC Page 385 (supra) the Hon’ble Apex Court held as follows:- “15). We have anxiously considered the submission of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the wellrecognised constraints. It cannot be exercised like a “bull in a china shop”, to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 16) The High Court cannot lightly or liberally act as an appellate court and reappreciate the evidence. Generally, it cannot substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi-judicial tribunals. The power to reappreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is not miscarriage of justice.” Following the ratio of the above noted judgments this Court is of the considered view that the facts of this case do not warrant the exercise of its correctional supervisory jurisdiction. It does not appear to the mind of this Court that the orders impugned have been passed either in grave dereliction of duty or in flagrant abuse of the fundamental principles of law or in perversity. This Court is also not entitled to reappreciate evidence and substitute its conclusions for the conclusions reached by the Ld. Court and the Ld. Appellate Court. This Court is also not entitled to reappreciate evidence and substitute its conclusions for the conclusions reached by the Ld. Court and the Ld. Appellate Court. Both the Courts having held concurrently, the facts of this case do not show such a rare and exceptional circumstance warranting interference. As already discussed hereinabove in this judgment the Schedule of land transferred shows the transfer of a demarcated portion of land and, applying the ratio of the judgment reported in 2012 Volume 2 WBLR Calcutta Page 245 (supra) this Court is persuaded there has been no statutory infraction in allowing preemption in favour of co-sharers having interest in the suit property. This Court also does not find substance in the argument of the petitioners alleging short deposit of the transacted value. This Court further notices that the previous suit is one for partition and therefore, is not analogous to the present preemption proceedings. In the backdrop of the above discussion no interference is called for in the order impugned dated 19th February, 2013 passed by the Ld. Appellate Court confirming the order dated 30th June, 2010 passed by the Ld. Trial Court. CO 1569 of 2013 is accordingly dismissed. There will be, however no order as to costs. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.