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2014 DIGILAW 664 (CAL)

Ananda Prasad Maji v. Chepu Kaibarta

2014-07-23

SUBRATA TALUKDAR

body2014
JUDGMENT Subrata Talukdar, J.: By filing CO 3163 of 2006 the petitioner challenges the judgement and order impugned dated 22nd March, 2006 passed by the Ld. 1st Additional District Court at Purulia in Misc. Appeal no.34 of 1999, 36 of 1999, 37 of 1999, 38 of 1999 and 39 of 1999 in the matter of Ananda Prasad Majhi Vs. Chepu Kaibarta and Ors. By the said impugned judgment and order dated 22nd March, 2006 the Ld. 1st Appellate Court was pleased to confirm the judgment and order dated 4th September, 1999 passed by the Ld. Civil Court (Junior Division) at Raghunathpur, Purulia in Misc. Preemption case no.1, 2, 4, 5 and 6 of 1994 in respect of the same parties. The short facts of the case are that the petitioners are the preemptors in respect of the suit lands described in the schedules to the preemption petitions pertaining to RS plot nos.5985, 5981 and 5980. The said suit lands were said to have been acquired by one Ratikanta Majee, the father of the petitioners and the Opposite Party no. 7 (for short OP) alongwith his two brothers by a Registered Sale Deed dated 8th June, 1955. The preemptors are the petitioners before this Court and the OPs are the preemptees. The said Ratikanta Majee had 8 annas share in the suit plots and the OP-7 along with his two brothers had the remaining 8 annas. Thereafter, the said Ratikanta Majee is purported to have transferred his shares to the present petitioners by way of deed of gift on 4th October, 1967 and thus the petitioners claim to be the co-sharers of the said suit plots. The OP-7 on the 18th of October, 1993 sold his 1/6th share to the other OPs who have been impleaded as such in all the five preemption Misc. Cases before the Ld. Trial Court. Such sale occurred by executing separate sale deeds. The petitioners allege that OP-7 has only 1/6th share in the suit plots but he has transferred 1/24th share in each deed in case of his 1/36th share in the suit plots. The said transfer, not being known to the petitioners and the petitioners claiming to be the contiguous tenants of the suit plots filed the said preemption Misc. Cases 1, 3, 4, 5 and 6 of 1994 to claim preemption in respect of the share of the OP 7. The said transfer, not being known to the petitioners and the petitioners claiming to be the contiguous tenants of the suit plots filed the said preemption Misc. Cases 1, 3, 4, 5 and 6 of 1994 to claim preemption in respect of the share of the OP 7. The petitioners claim to have deposited the consideration money as required by law in respect of the five deeds together with statutory compensation. The said preemption Misc. Cases were contested by the Ops – pre-emptees by filing written objection separately. However, all the OPs took a common defence which was that they are also contiguous tenants of the suit plots and have the longest common boundary with the petitioners. Therefore, the OPs claim the petitioners are not entitled to get the order of preemption as prayed for. By a combined judgment and order dated 16th September, 1996 the Ld. Civil Court (Junior Division) at Raghunathpur, Purulia was pleased to allow all five preemption Misc. Cases being 1, 3, 4, 5 and 6 of 1994, inter alia holding that the right, title, interest and possession of the OP/transferees in the suit land vest in the preemptorspetitioners on the ground that the preemptors-petitioners have been able to make out a case of having the longest common contiguous boundary and, further that the alleged contiguous plots of the OPs do not seem to have been owned and possessed by each of the OPs separately. Accordingly, the preemption claim of the present petitioners stood allowed by the order dated 16th September, 1996. Against the order dated 16th September, 1996 the present OPspreemptees preferred an appeal before the Ld. District Court at Purulia and, upon contested hearing the said five preemption Misc. Cases were remanded to the Ld. Trial Court with a direction to dispose of the same by considering the applicability of Section 8 of the West Bengal Land Reforms Act (for short the WBLR Act) or Section 24 of the West Bengal Non-agricultural Tenancy Act in the light of the observations made in the said judgment. By the subsequent judgment of the Ld. Trial Court dated 4th September, 1999 in the said five preemption Misc. By the subsequent judgment of the Ld. Trial Court dated 4th September, 1999 in the said five preemption Misc. Cases it was, inter alia held as follows:- a) Regarding the transfer by OP –7 to OP nos.1 to 6 of his 1/24th share in the suit property, it was, inter alia, held that the preemptors-petitioners are entitled to whatever land has been transferred by the OP-7 to the other OPs. b) Considering the judgment and order of the Hon’ble High Court in 1996 (2) CHN 212 in the matter of Paschimbanga Bhumijibi Krishak Samiti & Ors. Vs. State of West Bengal & Ors. the Ld. Trial Court arrived at the opinion that this Hon’ble Court was only pleased to declare Section 14 (IV) of the WBLR Act to be null and void in the light of the definition of land as contained in Section 2(7) of the said WBLR Act. Therefore, the tank and/or the nullah which are part of the schedule of the suit property will be regarded as land within the definition of the WBLR Act. Therefore the application for preemption u/s 8 of the WBLR Act was maintainable. c) In view of the maintainability of an application for preemption u/s 8 of the WBLR Act, the application for preemption u/s 24 of the West Bengal Non-Agricultural Tenancy Act does not lie. d) Admittedly there has been no partition by metes and bounds among the co-sharers of the suit plots which were held jointly by the father of the petitioners and the OP-7 along with his two brothers. After the purported transfer of the share of the OP-7 it does not reflect from the materials on record as to the extent and portion of each of their respective holdings since the same were held jointly and there was no partition. Accordingly, it could not be said that any specific portion of the suit plot is in possession of the preemptors and the preemptees are holding land adjoining the land transferred. Further, the preemptors are not entitled to preempt the land transferred as they are not in possession of the land adjoining the land transferred. e) From the evidence on record of the petitioners in respect of the RS plot nos.6010, 5980 and 5992 being contiguous to the suit plots, they hold large common boundaries with the transferees. Further, the preemptors are not entitled to preempt the land transferred as they are not in possession of the land adjoining the land transferred. e) From the evidence on record of the petitioners in respect of the RS plot nos.6010, 5980 and 5992 being contiguous to the suit plots, they hold large common boundaries with the transferees. From the evidence on record of the OPs it is found that they hold plots being RS of nos.6009, 7865, 7862, 7861, 7860, 7247, 5996 and 5551 which are adjacent to the suit plots. On perusal of Exhbt. 3 it is found that the plots of the petitioners no.5980, 5982 and 5992 are situated adjacent to the suit plots and such plots occupy the common longest boundary within the common boundaries of the OPs. However, inasmuch as the suit plots have not been partitioned by metes and bounds, the petitioners are not entitled to get an order of preemption and so the question of possessing longest common boundary is without substance. The Ld. Trial Court was therefore pleased to dismiss the said Misc. Cases 1, 3, 4, 5 and 6 of 1994 holding that the petitioners are not entitled to get preemption in respect of the suit plots. The said judgment and order of the Ld. Trial Court dated 4th September, 1999 was carried in appeal by the preemptors-petitioners being Misc. Appeal nos.34, 36, 37, 38 and 39 of 1999. The said Misc. Appeals were decided by a common judgment and order dated 22nd March, 2006 by the Ld. 1st Additional District Court at Purulia. All the Misc. Appeals were dismissed by an analogous order. By the said analogous order dated 22nd March, 2006 the Ld. 1st Appellate Court was pleased to hold that the prayer of the petitioners for preemption under West Bengal Non-agricultural Tenancy Act is not tenable in the eyes of law. According to the Ld. 1st Appellate Court the classification of the suit plotss stood as agricultural lands and the status of the owners of the suit plots as non-agricultural tenants was never challenged. In such view of the matter the owners of the suit plots being never non-agricultural tenants, the preemption applications under the West Bengal Non-agricultural Tenancy Act cannot lie. The Ld. 1st Appellate Court the classification of the suit plotss stood as agricultural lands and the status of the owners of the suit plots as non-agricultural tenants was never challenged. In such view of the matter the owners of the suit plots being never non-agricultural tenants, the preemption applications under the West Bengal Non-agricultural Tenancy Act cannot lie. The Ld. 1st Appellate Court was of the further view that the petitioners-preemptors could not claim to be co-sharers in respect of the suit plots which originally belonged to the OP-7 and whose shares were sold out in favour of the other OPs. Admittedly therefore, in the opinion of the Ld. 1st Appellate Court the present petitionerspreemptors were never co-sharers with the OP-7 in respect of the portion which exclusively belonged to him and, subsequently on transfer of his exclusive portion of the property to the other OPs by way of five separate sale deeds, the present preemptors-petitioners could not claim to be co-sharers of the suit plots even subsequent to such transfer. In such view of the matter the preemption petition is also liable to fail on account of the failure of the preemptors-petitioners to prove their co-sharership. The Ld. 1st Appellate Court found that the Ld. Trial Court only applied the principle of longest common boundary adjacent to the suit plots while dismissing the preemption petitions. However, in addition the Ld. 1st Appellate Court found the above mentioned principles noticed by it to be worthy of application in deciding the said Misc. Appeals. Accordingly, the said Misc. Appeals being nos. 34, 36, 37, 38 and 39 of 1999 were dismissed and the order of the Ld. Trial Court dated 4th of September, 1999 was confirmed. Sri Pinaki Ranjan Mitra, Ld. Counsel appearing for the petitioners has argued that the Ld. 1st Appellate Court failed to consider the important point that the preemptors-petitioners had claimed viciniage in respect of the suit plots. He makes the further point that the Ld. Trial Court and the Ld. 1st Appellate Court ought to have held that a preemption petition was maintainable even without a partition. Drawing the attention of this Court to the amendment to Section 8 of the WBLR Act Sri Mitra points out that a preemption petition is held to be maintainable even in respect of a portion or share of a plot of land which is transferred to any person. Drawing the attention of this Court to the amendment to Section 8 of the WBLR Act Sri Mitra points out that a preemption petition is held to be maintainable even in respect of a portion or share of a plot of land which is transferred to any person. Arguing that such preemption petition shall be maintainable even in respect of a holding which has been recognised by the amendment to Section 8 of the WBLR Act, Sri Mitra argues that both the Ld. Courts fell into patent error by dismissing the preemption petitions. Sri Mitra also points out that both the Ld. Courts below fell into error by holding that the West Bengal Non-agricultural Tenancy Act did not apply to the present preemption petitions. Per contra Sri Ram Prakash Banerjee, Ld. Advocate appearing for the OPs has taken the preliminary point that a single civil revisional application challenging the dismissal of the five Misc. Appeals is not maintainable. He submits that against each of the dismissals of Misc. Appeal nos.34, 36, 37, 38 and 39 of 1999 a separate civil revisional application ought to have been filed. However, this Court is of the opinion that Sri Banerjee’s preliminary objection on the maintainability of the present CO 3163 of 2006 is without substance inasmuch as the Ld. 1st Appellate Court dismissed the five Misc. Appeals by a common, analogous order. Similarly, the Ld. Trial Court dismissed the five preemption Misc. Cases nos.1, 3, 4, 5 and 6 of 1999 by a common analogous order. Moreover, the suit plots in respect of each of the preemption Misc. Cases and the Misc. Appeals are common involving identical parties. Hence this Court finds that the present civil revisional application being CO 3163 of 2006 challenging the common analogous order of dismissal dated 22nd March, 2006 is maintainable. This Court further finds that both the Ld. Trial Court and the 1st Appellate Court came to a common finding of fact that the provision of West Bengal Non-agricultural Tenancy Act is not applicable. Both the Ld. Courts found nothing in the records to indicate that the original recordees enjoyed the status of non-agricultural tenants in respect of the suit plots. Such findings were arrived at by both the Ld. Trial Court and Ld. Both the Ld. Courts found nothing in the records to indicate that the original recordees enjoyed the status of non-agricultural tenants in respect of the suit plots. Such findings were arrived at by both the Ld. Trial Court and Ld. 1st Appellate Court on a proper appreciation of the evidence taken in respect of each of the suit plots owned and possessed respectively by the petitioners and the OPs. In such view of the matter this Court does not find that such appreciation of evidence by both the Ld. Trial Court and the 1st Appellate Court needs to be substituted by a different view by this Court sitting in its jurisdiction under Article 227 of the Constitution of India. This Court is also of the view that the Ld. 1st Appellate Court was correct in holding that the present preemptors-petitioners could not claim preemption of the suit plots which belonged to the OP-7 on the ground of co-sharership. Admittedly, the OP-7 was in exclusive possession and his share in the suit plots was subsequently transferred by way of five separate sale deeds to the OPs. The Ld. 1st Appellate Court had, therefore correctly held that if the present preemptors-petitioners were not co-sharers in respect of the original holding of OP-7, they could not become co-sharers of the said suit plots after the transfer. At this juncture this Court quotes with respect the observations of the Hon’ble Supreme Court in Sneha Gupta Vs. Devi Sarup & Ors. reported in 2009 (6) SCC 194 . At paragraph 41 the Hon’ble Apex Court has 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 fact of the record or, if any other well-known principle of judicial review was found to be applicable. It could intervene, if there existed an error apparent on the fact 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.)” This Court also notices with respect the ratio laid down by the Hon’ble Apex Court in Jai Singh & Ors. Vs. Municipal Corporation of Delhi & Anr. reported in 2010 (9) SCC 385 . At paragraphs 16 and 17 the Hon’ble Apex Court has held as follows:- “16. The High Court cannot lightly or liberally act as an appellate court and reappreciate the evidence. Generally, it can not 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 gave 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 no miscarriage of justice. 17. In our opinion, the High Court in this case, has travelled beyond the limits of its jurisdiction under Article 227 of the Constitution. Both the ARC and ARCT had acted within the limits of the jurisdiction vested in them. The conclusions reached cannot be said to be based on no evidence. All relevant material has been taken into consideration. Therefore, there was hardly any justification for the High Court to undertake an investigation into the issues which did not even arise in the lis.” At para 45 of the judgment of the Hon’ble Apex Court in Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil reported in 2011 (1) WBLR (SC) 47, the Hon’ble Apex Court was pleased to hold as follows:- “The learned Judge considered the power of the High Court under Article 227 to be plenary and unfettered but at the same time, in paragraph 15 at page 792 of the report, the learned Judge held that High Court should be cautious in its exercise. It was made clear, and rightly so, that the power of Superintendence is not to be exercised unless there has been an (a) unwarranted assumption of jurisdiction, not vested in Court or Tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or Tribunals. It was made clear, and rightly so, that the power of Superintendence is not to be exercised unless there has been an (a) unwarranted assumption of jurisdiction, not vested in Court or Tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or Tribunals. The learned Judge clarified if only there is a flagrant abuse of the elementary principles of justice or a manifest error of law patent on the face of the record or an outrageous miscarriage of justice, power of Superintendence can be exercised. This is a discretionary power to be exercised by Court and cannot be claimed as a matter or right by a party.” In respectful deference to the aforesaid observations made by the Hon’ble Apex Court in the decisions referred to above (supra) this Court is of the considered opinion that both the Ld. Courts did not fail to exercise jurisdiction vested in them by law. Although the Ld. 1st Appellate Court took the view that the Ld. Trial Court did not consider the points discussed by it and only granted preemption on the principle of longest common boundary, in the opinion of this Court the Ld. 1st Appellate Court correctly interpreted the relevant principles applicable to preemption and thereafter confirmed the findings of the Ld. Trial Court which does not warrant interference. CO 3163 of 2006 therefore fails. There will be, however, no order as to costs.