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2014 DIGILAW 106 (CAL)

Ashoke Kapri v. Krishnapada Mondal

2014-02-11

ASIM KUMAR MONDAL

body2014
JUDGMENT : 1. This is an application under Article 227 of the Constitution of India. 2. The petitioners herein filed an application before learned Civil Judge (Junior Division), Bishnupur, praying for pre-emption of the case properties against the opposite parties. The learned Trial Court on contested hearing has been pleased to allow the said case being No. J. Misc. Case 9 of 1996. 3. The opposite parties preferred an appeal challenging the said order and judgement before the learned Lower Appellate Court which was registered as Misc. Appeal No. 26 of 2010. 4. The said Misc. Appeal was disposed of by the learned Additional District Judge, 3rd Court, Bankura. Learned Lower Appellate Court has pleased to allow the appeal on merit, ex parte against the respondents/petitioners. 5. The learned Lower Appellate Court by the judgement impugned dated December 22nd, 2011 has been pleased to set aside the judgement dated February 26th, 2010 passed by the learned Civil Judge (Junior Division, Bishnupur in J. Misc. Case No. 9 of 1996. 6. The respondents/petitioners being aggrieved by and dissatisfied with the said order and judgement passed by the learned Lower Appellate Court in Misc. Appeal No. 26 of 2010 has preferred the present revisional application on the grounds that the learned Lower Appellate Court erred in law by holding that the petitioners are not co-sharers and set aside the order of the learned Trial Court. Further that learned Lower Appellate Court failed to consider that even an adjoining owner has a right of pre-emption. 7. The case of the petitioners in short is that they purchased 0.3 decimals of land on June 22, 1994 from one Tapan Kumar Ghosh and Karick Chandra Ghosh who owned land measuring an area of 8 decimals. They owned 5½ decimals in plot No. 76 and 2½ decimals in plot 72. Both the plots of lands are in Mouza Majdea. The sale deed of the petitioners has been registered on June 23rd, 1994. It is the further case of the petitioners that on the eastern adjacent side of the plot No. 72, plot No. 64 is situated comprising of 2.06 acres of land. Co-sharers of the said land amicably partitioned. One Pashupati Shit got 0.6 decimals of land in plot No. 64. The said 0.6 decimals of land was sold out to the petitioners by executing a sale deed which is duly registered on December 14th, 1992. Co-sharers of the said land amicably partitioned. One Pashupati Shit got 0.6 decimals of land in plot No. 64. The said 0.6 decimals of land was sold out to the petitioners by executing a sale deed which is duly registered on December 14th, 1992. So, petitioners owned and possessed an area of 0.6 decimals in plot No. 64 and 0.3 decimals in plot No. 72 and 76 in Mouza-Majdea. 8. One Paresh Nath Mondal, Biswanath Mondal and Santosh Mondal owned and possessed 10½ decimals of land by way of purchase. A portion of which was subsequently sold to the opposite parties of the present revisional applications by executing a sale deed registered on November 29th, 1995. No notice was displayed intimating sale of the land measuring about 0.6 decimals of plot No. 72 and 76 in Mouza Majdea at the time of execution of sale deed in favour of the opposite parties. It is also the case of the petitioners that they are cosharers in respect of the land in plot No. 72 and 76 in Mouza Majdea measuring about 10½ decimals of land. Therefore, a registered sale deed by Paresh Nath Mondal, Biswanath Mondal and Santosh Mondal in favour of the opposite parties of the present application is subject to pre-emption by the petitioners being co-sharers of the said land. 9. Mr. Debabrata Acharaya with Mr. Sital Samanta and Mr. Prabir Adhayya appears on behalf of the petitioners. 10. Mr. Acharaya submits that learned Appellate Court wrongly held that the petitioners are not co-sharers and set aside the order of learned Trial Court. Mr. Acharaya after drawing my attention to the relevant provision under section 8 of the West Bengal Land Reforms Act submits that Raiyat in a plot of land means “a person, other than Raiyat who has an undemarcated interest in the plot of land along with the Raiyat”. It is also submitted that the right to preempt is not only to co-sharers but also to the co-sharers by purchase in addition to the adjoining owners. Learned Appellate Court has failed to consider that even adjoining owners has the right to pre-emption. Mr. Acharaya further submits that from the evidence adduced on behalf of the petitioners before learned Trial Court it would be evident that the petitioners possessing adjoining land which has been sold to the opposite parties of the present application. Learned Appellate Court has failed to consider that even adjoining owners has the right to pre-emption. Mr. Acharaya further submits that from the evidence adduced on behalf of the petitioners before learned Trial Court it would be evident that the petitioners possessing adjoining land which has been sold to the opposite parties of the present application. So the petitioners are entitled to get pre-emption. Learned appellate Court did not consider that even an adjoining owner has the right of preemption. Mr. Acharaya in course of his submission referred the decision of Coordinate Bench of this High Court reported in 2011- Laws (Cal)-7-102 and submits that Hon'ble Court has held that adjoining land owners has the right to preempt. Learned Appellate Court did not consider the findings of learned Trial Court as reflected at page No. 6 and 7 of the photocopy of certified copy of the judgement, (annexure-f) 11. In reply Mr. Shyamal Kumar Pandey appears on behalf of the opposite parties. In course of his submission learned Counsel supported the impugned judgement passed by the Learned lower appellate Court. Learned appeal Court has reversed the judgement and order passed by the learned Trial Court. Mr. Counsel submits that admittedly the property has been partitioned among the co-sharers long back in the year 1956. The plot in question has been divided in accordance with the share of the co-sharers and the jama has also been changed in accordance to the share of the parties. So, under such circumstances, no question arises for pre-emption by the petitioner herein. Learned Counsel further submits that the entire plot has been sold out. Admittedly the petitioner herein is not the co-sharer in the plot. The plot Nos. being 72 and 76 were divided into several parcels and portions which the parties are possessing in their own separate side by demarcating the boundaries. The land within the boundary was separate state of the allottee. Admittedly the petitioner herein is not the co-sharer in the plot. The plot Nos. being 72 and 76 were divided into several parcels and portions which the parties are possessing in their own separate side by demarcating the boundaries. The land within the boundary was separate state of the allottee. Learned Counsel further submits that the learned Appeal Court has rightly observed that the deed being No. 487 dated February 10, 1982 the purchasers Paresh Nath Mondal and two others made in exchange with one Rafiqul Rahaman Mondal by registered deed of exchange being No. 1819 of 1982 (exhibit 6) by which they gave two decimals of land in plot No. 72 and ½ decimals of land in plot No. 76 and in total 2½ decimals of land and then Paresh Nath Mondal had 10½ decimals in plot No. 72 and 2 decimals in plot No. 76 which they amalgamated and consolidated by a boundary which they sold to the appellants (opposite party herein) by the deed impugned exhibit ‘E’. So, the entire share of the plot were sole long ago. Learned Counsel in support of his submission and arguments relied upon and referred the decision reported in 2006 (4) CHN 440 and 1973 CWN at page 742 and another decision of the Coordinate Bench reported in (2013) 3 WBLR Cal 271 : 1977 CWN at page 272. 12. Learned Counsel also drawn my attention as to the provision and scope laid down under section 8 of the West Bengal Land Reforms Act and submits that in view of the said provision in the facts and circumstances of the present case, there is no scope for application of the principles of section 8 of the said Act as the entire case plot has been sold out of which cosharers possessing the same separately by demarcating the portion as per jama. 13. Mr. Debabrata Acharyya, appearing on behalf of the petitioner in reply submits that learned Appeal Court did not consider the case of the petitioner. Mr. Acharyya draws my attention as to the annexure ‘D’ at page 33 and submits that the petitioner had two fold prayers. The petitioner also stated in the application at paragraph 4 that the petitioners are the adjoining land owners. Mr. Acharyya draws my attention as to the annexure ‘D’ at page 33 and submits that the petitioner had two fold prayers. The petitioner also stated in the application at paragraph 4 that the petitioners are the adjoining land owners. After amendment of the provision under section 8 of the West Bengal Land Reforms Act there is scope for the adjoining land owners to pray for preemption and accordingly after considering the case and materials on record learned Trial Court pass the order allowing the prayer in favour of the petitioner. On the contrary learned Appeal Court did not at all consider the fact that the petitioners are the adjoining land owners. The partition of the land is admitted and in the event of failure to establish the claim of co-sharer, the claim of adjoining land holders still remains. 14. On careful perusal of the photocopy of certified copy of the judgement of learned Trial Court it appears that learned Trial Court after due consideration of the submissions of learned Counsels appearing on behalf of the parties as well as after due consideration of the evidences adduced by the parties in support of their respective cases and the documents approved and marked exhibited has held that the application for pre-emption under section 8 is very much maintainable as the same is filed in time. Further learned Trial Court held that the petitioners are the owners of six decimals of land on the extreme Western Side of Plot No. 64 which is situated adjacent to case plot No. 72. Petitioners have claimed that they are adjoining land holders of case plot No. 72. Petitioners relied and exhibited the mouza map which has been marked as exhibit-4. There is nothing on the part of the opposite parties herein to say that the petitioners arc not the contiguous land holders of the eastern side of case plot No. 72. Learned Trial Court has held that the petitioners are adjoining land holders of the case plot. Learned Trial Court has also held that O.P. had not purchase the entire share in the case plot as alleged by them. O.P.W. 1 at the time of cross-examination has admitted that the case plots being No. 72 and 76 comprises of total 12½ decimals. Learned Trial Court has also held that O.P. had not purchase the entire share in the case plot as alleged by them. O.P.W. 1 at the time of cross-examination has admitted that the case plots being No. 72 and 76 comprises of total 12½ decimals. Learned Trial Court on scrutiny of deed No. 487 of the year 1982 find that the case plots were 12½ decimals of land and the O.P.s was purchased 10½ decimals of land. So, the entire land was not sold out or purchase. In view of the judgement of this High Court reported in (2000) 2 Cal L.T. 221 (HC) that it is not necessary that the applicant must be the full owners of the adjoining holding that even cosharer of the adjoining holding may apply for pre-emption. On the other hand learned Trial Court held that the O.P. has failed to prove that the petitioners are not stranger purchasers. 15. On perusal of the certified copy of judgement passed by the Appeal Court it appears to me that learned Appeal Court has shared the views of submissions advanced by the learned counsel for the appellant/O.P.s. In fact I do not find any reflection of discussion of judgement of the learned Trial Court in the appeal Court judgement. Learned Trial Court has clearly held that basing upon the mouza map (exhibit-4) that the petitioners are the contiguous adjoining land holders of the case plot and the holding of the entire land in the case plot was not transferred to the purchasers. So, a stranger having share in the contiguous land of the suit plot have allowed to claim preemption in view of the provision of section 8 of the Land Reforms Act after amendment. 16. The judgement passed by the learned Appeal Court suffers from material irregularity as well as illegality and in my view the same should not be allowed to remain in force. 17. Thus the judgement passed by the learned Additional District Judge, 3rd Court, Bankura in Misc. Appeal No. 26 of 2010 dated December 22nd, 2011 hereby set aside. 18. Thus, the revisional application is allowed. The judgement and order passed by learned Civil Judge (Junior Division), Bishnupur in J. Misc. Case No. 9 of 1996 dated February 26, 2010 is hereby affirmed. Urgent Photostat Certified Copy of this order if applied for be given to the parties on priority basis.