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2015 DIGILAW 673 (CAL)

Sudhir Singha v. Jayanta Kumar Singha

2015-08-10

SIDDHARTHA CHATTOPADHYAY

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JUDGMENT : Siddhartha Chattopadhyay, J. Challenging the legality and validity of impugned judgment dated 28.01.2014 passed in Miscellaneous Appeal No. 18 of 2013 by the Learned Additional District Judge 3rd Court, Malda, the plaintiff/petitioner has come before this Court with a prayer to set aside the impugned order. 2. In the revisional application the petitioner has ventilated his grievances that the learned Court below failed to consider that the opposite parties are strangers and therefore, the petitioner’s rights of preemption is maintainable. It has also been contended by the petitioner that the First Appellate Court below failed to appreciate the evidence on record which speaks that the plaintiff/pre emptor, is an adjoining land owner and so he can claim preemption. 3. In the interest of effective adjudication factual aspect is required to be restated. The petitioner’s (appellant) case in a capsulated form is such that he is a co-sharer having undivided four annas share with other co-sharers and his name has been duly recorded in the L.R.R.O.R. in respect of Plot Nos. 610 and 630. The opposite parties are stranger purchasers who have purchased the suit property from Jatindra Mohan Das by registered deed for consideration of Rs. 90,000/- without serving any notice upon the petitioner. Their vendor Jatindra Mohan Das got the suit property from erstwhile owner Bimal Krisha Barman, who purchased the suit property from original co-sharer Nabin Chandra Singha. On the basis of the above facts the petitioner prayed for preemption and deposited the consideration money. 4. Opposite party contested the said case by filing written objection and that they categorically stated that the present petitioner is not at all a co-sharer of the suit land and accordingly he does not have any locus standi to preempt the suit property as a co-sharer. They also contended that the entire land within the suit plots were amicably partitioned amongst the co-sharers long ago and all the co-sharers are in separate demarcated portion. Nabin Chandra Singha, since deceased, transferred his entire inherited portion in favour of Bimal Krishna Barman who in turn sold the said property in favour of Jatindra Mohan Das. They have also mentioned that while Bimal Krishna Barman transferred the property within Dag No. 610/1087 in favour of Jatindra Mohan Das due to mistake on the part of the deed writer the purchase deed bears the Plot No. as 610 instead of 610/1087. They have also mentioned that while Bimal Krishna Barman transferred the property within Dag No. 610/1087 in favour of Jatindra Mohan Das due to mistake on the part of the deed writer the purchase deed bears the Plot No. as 610 instead of 610/1087. That Jatindra Mohan has transferred his purchased portion to the opposite parties by the registered deed and in this way they have become the owner of the said property. The property comprised within R.S. Plot Nos. 610 and 630 originally belonged to Nanda Lal Singha, and after his death, his sons Nabin Chandra Singha and Iswar Chandra Singha inherited the said property and possessed the property jointly. The present petitioner is the son of Iswar Chandra Singha. They have also stated that before purchasing the said property the opposite partiers were informed but they have refused to purchase the suit land. 5. At the time of hearing Learned Counsel appearing on behalf of the petitioner has contended that the factual aspect itself reveals that the petitioner is a co-sharer and for that reason he is entitled to preempt the aforesaid land. According to him the application for preemption was initially allowed by the learned Court vide order dated 27.03.2009 and against the said order miscellaneous appeal was filed. In the said miscellaneous appeal respondent filed a petition under Order 41 Rule 27 of CPC for adducing additional evidence and that was allowed. The Learned First Appellate Court has sent the case back to the Learned Court concerned with the direction to dispose of the case afresh. 6. Learned Counsel appearing on behalf of the petitioner has submitted that as per the R.S.R.O.R. Sukumar Singha and Nabin Chandra Singh (predecessor of the petitioner was a co-sharer) in respect of Plot Nos. 610 and 630 and by dint of aforesaid record of rights they have established their co-sharership. He also contended that the Court is to consider the right of pre emptor to preempt not only at the time of sale of land but also at the time of Institution of the suit for preemption. 7. Learned Counsel appearing on behalf of the respondents/opposite parties submitted that although R.S.R.O.R. reflects the name of the appellant/petitioner showing they had undivided share in the suit plots but after coming into force of amended definition of holding the same is not applicable. 8. 7. Learned Counsel appearing on behalf of the respondents/opposite parties submitted that although R.S.R.O.R. reflects the name of the appellant/petitioner showing they had undivided share in the suit plots but after coming into force of amended definition of holding the same is not applicable. 8. I have heard the submission of Counsel appearing for both parties and also had gone through the factual aspects of this case. Geneological aspects had not been contradicted by anybody. In this case it appears that the opposite party has purchased entire share of his vendor, and, therefore, the petitioner lost his right to claim as a co-sharer. The concept of ‘holding’ has undergone a sea-change. When a transferor raiyat sold entire portion of his share in the plots in question and did not have any portion of the said plot left with him, the application for preemption is not maintainable. I relied on the decision reported in 1978 (1) CLJ 532 Misri Shaw vs. Belur Nikunja Gadar Institution, Gadadhar Ghosh vs. Sasthi Ghosh (2002) 2 CLJ 423. 9. Definition of ‘holding’ has been substituted by the expression, ‘co-sharer of raiyat in the plot of land’ in Clause 6 Section 2 of the Act. Therefore, now when a portion or share of a plot of land of a raiyat is transferred to a person other than a co-sharer of a raiyat in the plot of land or any raiyat possessing land adjoining to such plot of land is entitled to exercise the right of preemption. 10. The Hon’ble Court has held in case reported in Khalilur Rahaman vs. Abdul Khaleque, (1995) 2 CLJ Page 5, that in view of the amended definition there is no scope for any person to be a co-sharer of the holding of a raiyat, because as per said definition holding of a raiyat would comprise of all the plots of land which a raiyat holds in all the districts of this State whether he has exclusive or undivided share. Therefore, it is crystal clear that by virtue of deletion of West Bengal Land Holding Revenue Act and the definition being amended, now the right of preemption would arise only when a raiyat transfer a portion or share of a plot of land. 11. Therefore, it is crystal clear that by virtue of deletion of West Bengal Land Holding Revenue Act and the definition being amended, now the right of preemption would arise only when a raiyat transfer a portion or share of a plot of land. 11. In this case the opposite party has purchased entire share of a co-sharer and for that reason this present petitioner is not at all entitled to get preemption. 12. In the Court below, the petitioner could not establish by showing adequate and convincing evidence that he is the adjoining land owners. 13. Therefore, in my considered view the petitioner failed to establish his case. 14. In the result, this revisional application fails. Judgment of the Learned Additional District Judge 3rd Court, Malda is hereby affirmed. Let a copy of this order be sent to the Learned Additional District Judge 3rd Court, Malda, for information and he will in turn send a copy of this order to the Learned Civil Judge (Junior Division) 2nd Court for information. 15. Urgent certified photocopy of this Judgment and Order, if applied for, be supplied to the parties upon compliance with all requisite formalities.