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2015 DIGILAW 52 (CAL)

Basanti Nath v. Paritosh Kamaru

2015-01-27

ARIJIT BANERJEE

body2015
JUDGMENT : Arijit Banerjee, J. 1. This revisional application arises out of an order dated 19th February, 2010 passed in Misc. Appeal No. 07 of 2007 whereby the First Appellate Court affirmed the decision of the learned Trial Court dated 30th March, 2007 dismissing the petitioner's application for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955. 2. The material facts of the case are that one Danobari Nath owned a property measuring about .09 acres. Upon his death his wife and his three daughters inherited the said property in equal shares. The petitioner is one of the daughters of Danobari Nath. The property was subsequently partitioned between the petitioner on one hand and her mother and sisters on the other hand. The petitioner acquired what was referred to as 'Kha' schedule property. The respondent no. 2 being the petitioner's mother and two sisters of the petitioner acquired six decimals of land referred to as the 'Ka' schedule. Subsequently the 'Ka' schedule property was also amicably partitioned between the respondent no. 2 and her two daughters by virtue of which the respondent no. 2 became the sole owner of the 'Ka' schedule property, her two daughters having relinquished their rights in such property in favour of their mother. 3. Subsequently the respondent no. 2 sold the 'Ka' schedule property to the respondent no. 1. No notice of sale was served on the petitioner who is the owner of the 'Kha' schedule property which it is claimed is contiguous to the 'Ka' schedule property. The petitioner filed Misc. (Pre-emption) Case No. 112 of 2001 before the learned Civil Judge (Junior Division) Kalna praying for pre-emption of the 'Ka' schedule property under Section 8 of the West Bengal Land Reforms Act as a cosharer as well as owner of contiguous land. Subsequently, however the claim on the basis of co-ownership was given up since admittedly upon partition of the concerned property, the petitioner ceased to be a co-owner. 4. The learned Trial Court dismissed the petitioner's case. On appeal, the learned Additional District Judge, Kalna held that though the appellant claimed her right as contiguous land owner in the petition, there was no whisper in the four corners of the evidence led by her in support of the same. 4. The learned Trial Court dismissed the petitioner's case. On appeal, the learned Additional District Judge, Kalna held that though the appellant claimed her right as contiguous land owner in the petition, there was no whisper in the four corners of the evidence led by her in support of the same. She came to the conclusion that there is no evidence on record, whether oral or documentary, to prove that the land occupied by the appellant is contiguous to that of the 'Ka' schedule property. For those reasons the learned First Appellate Court dismissed the petitioner's appeal. Being aggrieved the petitioner is before this Court by way of the instant revisional application. 5. Appearing on behalf of the petitioner learned Counsel drew this Court's attention to the deposition of the witness of the opposite party recorded before the learned Trial Judge. In such deposition the witness of the opposite party has stated categorically that the portion of the suit plot (meaning thereby the 'Ka' schedule property) is situated on the eastern side of Basanti Nath's property i.e. the petitioner's property. Learned Counsel submitted that this is a clear admission that the 'Ka' schedule property which has been transferred to the respondent no. 1 and the 'Kha' schedule property of which the petitioner is the owner are adjacent properties. The learned Courts below completely ignored such evidence and rejected the petitioner's claim of pr-emption as contiguous owner. This, according to the learned Counsel makes the orders of the leaned Courts below perverse warranting interference by this Court in the exercise of jurisdiction under Article 227 of the Constitution of India. Learned Counsel cited the Supreme Court decision in the case of Achutananda Baidya v. Prafullya Kumar Gayen reported in (1997) 5 SCC 76 . In particular, he referred to paragraph 11 of the said judgment wherein the Hon'ble Apex Court has observed that if the evidence on record in respect of a question of fact is not at all taken into consideration and without reference to such evidence, a finding of fact is arrived at by an inferior Court or Tribunal, such finding must be held to be perverse and lacking in factual basis. In such circumstances, in the exercise of jurisdiction under Article 227, the High Court will be competent to quash such perverse finding of fact. 6. Appearing on behalf of the opposite party no. In such circumstances, in the exercise of jurisdiction under Article 227, the High Court will be competent to quash such perverse finding of fact. 6. Appearing on behalf of the opposite party no. 1 learned Counsel submits that since the petitioner claimed a right of pre-emption on the basis of being a contiguous owner, the burden was on her to establish that the 'Ka' schedule property and the 'Kha' schedule property were contiguous properties. However there is no whisper in that regard in the evidence adduced by the petitioner. Accordingly, he submits that the learned Lower Courts rightly rejected the petitioner's claim. 7. I have considered the rival contentions of the parties. It is true that generally the onus to prove a fact is on the person who alleges such fact and makes a claim on the basis thereof. However it is also true that an admission by the adversary is the best form of proof. It appears from the deposition of the witness produced by the opposite party no. 1 that the said witness admitted that the 'Ka' schedule property was on the eastern side of the 'Kha' schedule property i.e. the property belonging to the petitioner. Although this does not conclusively establish that two properties are contiguous, yet from the deposition it appears more probable than not that the two properties are contiguous. The learned Lower Courts did not consider the said deposition at all. In my opinion the learned Courts below should have taken into consideration such statement of the witness and should have enquired into the factual issue as to whether the two properties were contiguous or not. By completely overlooking such witness statement, in my opinion the Courts below have acted with material irregularity. Apparently the finding of the Lower Courts on the factual issue of whether two plots are contiguous or not, is contrary to the evidence on record which makes the orders of the Lower Courts perverse. 8. Accordingly this revisional application succeeds, the order impugned is set aside. The matter is remanded back to the learned Additional District Judge, Kalna for consideration afresh. If necessary the learned Additional District Judge will be at liberty to record further evidence of the parties to arrive at a conclusion regarding the factual issue of whether the 'Ka' schedule property and the 'Kha' schedule property are contiguous or not. The matter is remanded back to the learned Additional District Judge, Kalna for consideration afresh. If necessary the learned Additional District Judge will be at liberty to record further evidence of the parties to arrive at a conclusion regarding the factual issue of whether the 'Ka' schedule property and the 'Kha' schedule property are contiguous or not. With these observations this revisional application is disposed of. I however make it clear that I have not gone into the merits of the case and the learned Additional District Judge will be at liberty to decide the case afresh in accordance with law without being influenced by this judgment. Urgent photostat certified copy of this order be given to the parties expeditiously, if applied for. Revisional application succeeds.