Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 31 (CAL)

Madan Mohan Biswas v. Kartick Chandra Biswas

2014-01-16

SUDIP AHLUWALIA

body2014
JUDGMENT : 1. None for the opposite parties even on the third call in the second half. 2. Affidavit of service filed in Court today be kept with the record. 3. This revisional application is directed against the judgment passed by the Ld. Additional District Judge, 5th Court, Nadia in Misc. Appeal No. 27 of 2010 on 24.06.2013. 4. In dismissing the said Appeal through the impugned judgment, the Ld. Appellate Court had upheld the decision of the Ld. Civil Judge (Junior Division), 2nd Court, Ranaghat in Misc. Case No. 18 of 2005, which had been pronounced in relation to an application for pre-emption filed by the present petitioner under section 8 of the W.B.L.R. Act. 5. Both the Ld. Trial Court and the Ld. Appellate Court had in their respective decisions observed that the petitioner was not entitled to pre-emption of the disputed land allegedly purchased by the opposite parties from the petitioner's brother and co-sharer Shambhu Nath Biswas. 6. Both the Ld. Courts had held that the petitioner and his brother were the co-sharers in respect of the entire land measuring 6.6 decimals which they had acquired by way of inheritance after their father's death, as well as through registered Deeds of Gifts executed in their favour by the other legal heirs of their deceased father i.e. his four daughters, and that no partition by metes and bounds had been conducted between the petitioner and his brother. So when his brother did transfer the disputed land in favour of the opposite parties, the petitioner could not claim pre-emption of the same as he could not have been the “contiguous land holder” in the absence of any appropriate partition. 7. The petitioner is aggrieved before this Court that even if not a contiguous land holder in respect of the disputed land or plot, he nevertheless undoubtedly remains the sole surviving co-sharer in the transferred land after it was sold to the opposite parties by his brother Sambhu Nath Biswas. As such, according to the petitioner, he is entitled to pre-empt the said land in his capacity as a co-sharer. 8. Two separate decisions passed by Single Benches of this Court have been placed on behalf of the petitioner. 9. As such, according to the petitioner, he is entitled to pre-empt the said land in his capacity as a co-sharer. 8. Two separate decisions passed by Single Benches of this Court have been placed on behalf of the petitioner. 9. In the case of Biswanath Sarkar v. Sunit Kumar Saha, [(2013) 3 WBLR (Cal) 271], a Single Bench of this Court had observed “This Court has no hesitation to hold that if a co-sharer is holding an undivided, undemarcated share in respect of a plot of land and if he sells the said share to any person other than the co-sharer, the right of pre-emption is conferred or bestowed upon the other co-sharers under section 8 of the West Bengal Land Reforms Act, 1955”. On this reasoning the Hon'ble Single Judge set aside the decision of the Appellate Court in which the original pre-emption decree passed by the Ld. Trial Court in favour of the co-sharers of the disputed land had been set aside in Appeal. 10. In the other decision cited by the Petitioner's side, being “Sribas Chandra Biswas v. Jiban Krishna Biswas” [ (2012) 2 WBLR 245 ] another Single Bench of this Court had upheld the pre-emption order passed in favour of the opposite parties by the Ld. Trial Court which had also been sustained by the Ld. Appellate Court. In that case also the opposite party/pre-emptor claimed himself to be a co-sharer raiyat in respect of land which had admittedly not been partitioned. 11. Both the aforesaid decisions are fully applicable to the facts and circumstances of the present case in which also admittedly the present petitioner was a co-sharer in respect of the disputed land along with his brother Shambhu Nath Biswas, before the same was transferred in favour of the opposite parties who are strangers. 12. For the above reasons, the Revisional Application is allowed and the decision of both the Ld. Courts below are set aside, without costs. 13. It is declared that the petitioner by virtue of being the original co-sharer in the disputed land with the transferor Shambhu Nath Biswas, is entitled to pre-empt the same if his application was otherwise in order. 14. All interim orders, if any, passed in the proceedings earlier stand vacated accordingly. Urgent photostat certified copy, if applied for, be given to the parties upon compliance of necessary formalities.