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2015 DIGILAW 946 (CAL)

Jagabandhu Mukhopadhyay v. Purno Lakshmi Halder

2015-12-04

SHIB SADHAN SADHU

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JUDGMENT Shib Sadhan Sadhu, J. 1. The petitioners by the instant Revisional Application under Article 227 of the Constitution of India seek to set aside the order dated 31st July, 2012 passed by the Learned Additional District Judge, First Court, Bankura in Misc. Appeal No.04 of 2010 whereby and whereunder she affirmed the impugned order NO. 99 dated 15th December, 2009 passed by the Learned Civil Judge (Junior Division), First Court, Bankura in J.Misc. Case NO.37 of 1998 thereby dismissing the said Misc. case. 2. The petitioners filed an application under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act for the sake of brevity) for pre-emption against the opposite parties in respect of the case lands on the ground of vicinage and co-sharership which was registered as J. Misc.Case No.37 of 1998. The case of the petitioners is that they are the co-sharers in respect of the case plots 551 under R.S.Khatian No.1841 and 551/1928 under R.S. Khatian No.1840. They are the exclusive owners in possession of a contiguous plot No. 552 which was purchased by their predecessor-in-interest Subhas Kumar Mukhopadhyay, since deceased, by registered Kobala dated 3rd January, 1956 and after his demise the petitioners are in possession of the said land. The opposite parties purchased lands mentioned in the Schedule of the application from the sons of Late Ramshankar Mukhopadhyay by a registered deed of sale dated 12th January, 1990 registration of which was completed on 24th June, 1998. The opposite parties are the strangers. So the petitioners has filed the case for pre-emption. The Learned Trial Court refused the prayer for pre-emption holding that the case plot No. 551 is a tank and the petitioners are not co-sharers in respect of that plot, that the entire interest of the venders of the opposite parties in case plot No. 551/1928 has been sold to the opposite parties and that the petitioners are not contiguous land owners. The Learned Appellate Court concurred with that view. Being aggrieved by and dissatisfied with such orders the petitioners have preferred the instant revision. 3. Mr. The Learned Appellate Court concurred with that view. Being aggrieved by and dissatisfied with such orders the petitioners have preferred the instant revision. 3. Mr. Basudeb Rakshit, Learned Counsel appearing on behalf of the petitioners, submitted that it is surprising that although the Learned Trial Court took into account the judgement and decree passed in Title Suit No.30 of 1990 (Exbt.6) and held that the petitioners are co-sharers in respect of the case plot 551/1928 but despite such finding rejected the prayer for pre-emption on the ground that the entire interest of that plot has been transferred. He further submitted that the said plot 551/1928 is unpartitioned and the petitioners have 1/9th share in that plot. Therefore, admittedly the opposite parties had no right to sell the entire interest of that plot to the opposite parties and as such it would be presumed that the venders of the opposite parties have sold only their interest in respect of that plot. So the petitioners being undivided co-sharers of the said plot of land, are entitled to have the order of pre-emption in respect of that portion or share which has been sold to the stranger purchasers (opposite parties). Thus, according to him, the impugned orders cannot be sustained and are liable to be set aside. He placed reliance on the decisions reported in (2012) 2 WBLR (Cal) 245 (Sribas Chandra Biswas & Ors. v. Jiban Krishna Biswas) and (2013) 3 WBLR (Cal) 271 (Biswanath Sarkar & Anr. V. Sunit Kumar Saha) in support of his submission. 4. Mr. Biswaranjan Bhakat, Learned Counsel appearing on behalf of the Opposite Parties, on the other hand contended that since the entire demarcated land measuring about 1 decimal of the case plot NO. 551 /1928 has been transferred in favour of the opposite parties there cannot be any question of pre-emption under Section 8 of the said Act. Accordingly the Learned Courts below have rightly refused the prayer for pre-emption made by the petitioners. Therefore, according to him, the impugned orders are absolutely legal and correct and should not be interfered with. 5. I have carefully considered the rival contentions put forward by the Learned Counsel appearing for the parties. I have perused the cited decisions. I have also gone through the entire proceedings with meticulous care. 6. Therefore, according to him, the impugned orders are absolutely legal and correct and should not be interfered with. 5. I have carefully considered the rival contentions put forward by the Learned Counsel appearing for the parties. I have perused the cited decisions. I have also gone through the entire proceedings with meticulous care. 6. Having regard to the rival submission and contention advanced by the Learned Counsel appearing for the parties in the light of the decisions placed, the only question which falls for consideration is :-“Whether the case plot No. 551/1928 is un-demarcated or is well-demarcated and was partitioned amongst the original owners.” 7. In view of the respective rival submissions I would like to say at the very outset that Section 8 of the Act relates to the right of pre-emption of a Bargadar, co-sharer Raiyat and the contiguous plot owner, if a portion or share of a plot of land of a Raiyat is transferred to any person other than the co-sharer. The Provisos of Section 8 lays down a rule of preference when the contest is between a Bargadar, co-sharer Raiyat, a Raiyat possessing land adjoining the land transferred and amongst the Raiyats possessing land adjoining the transferred land. 8. I find that upon appreciation of evidence – both oral as well as documentary led by the parties the Learned Trial Court arrived at the finding that the land in case plot No.551 is a tank and is, therefore, outside the purview of pre-emption. The Learned Appellate Court concurred with such finding and relying on the decision of the Hon’ble Supreme Court reported in (1996) 11 Supreme Court Cases 585 (S.K.Arsed Ali & Anr. V. S.K.Fazle Hakani) held that the demised plot is admittedly a ‘pukur’ which cannot be used for agricultural purpose and so it cannot be considered as land. I find nothing to differ with such concurrent findings of the Learned Courts below and I fully agree with the same. Accordingly I am of the view that both the Learned Courts below have rightly rejected the prayer for preemption in respect of the case plot No.551 and such finding is affirmed. 9. I find nothing to differ with such concurrent findings of the Learned Courts below and I fully agree with the same. Accordingly I am of the view that both the Learned Courts below have rightly rejected the prayer for preemption in respect of the case plot No.551 and such finding is affirmed. 9. I further find that the Learned Trial Court on the basis of the judgment and decree passed in Title Suit No.30 of 1990 declaring 1/9th share of the petitioners in case plot No.551/1928 (Exbt.6) found and held that the petitioners are co-sharers in the case plot No.551/1928. Admittedly the case land being plot No.551/1928 originally belonged to Jasodamoyee Debya and after her death, the predecessor-in-interest of the present petitioners and the vendors of the present opposite parties inherited that property. Further admitted position is that there was no partition by metes and bounds and the venders of the opposite parties have been in possession merely by mutual oral arrangement. The impugned sale deed (Exbt.4) also recites such fact. 10. It is obvious that the expression “a portion or share of” would also include the entirety of the holding of the transferor Raiyat and it cannot be said that if a Raiyat transfers his entire share in a plot of land to an outsider, the provisions of Section 8 of the Act would not be attracted. The expression “plot of land” in the opening limb of Section 8(1) of the Act refers not to the holding of the transferor Raiyat but to the land that the transferor holds in joint ownership wih the co-sharer Raiyat. 11. The law is well-settled on the point that if one of the joint owners alone holds or occupies the entire property or part of it, his physical possession is that of an owner of his own interest and also that of an agent as to the other co-owners. Therefore, the possession of one of the co-sharers is the possession of all of them. When a co-sharer sells his share in the joint holding or any portion thereof and puts the vendee into possession of the land in his possession, what he transfers is his right as co-sharer in the said land and the right to remain in its exclusive possession till the joint holding is partitioned amongst all the co-sharers. 12. When a co-sharer sells his share in the joint holding or any portion thereof and puts the vendee into possession of the land in his possession, what he transfers is his right as co-sharer in the said land and the right to remain in its exclusive possession till the joint holding is partitioned amongst all the co-sharers. 12. This Court in the case of Netai Chandra Das V. Sisir Kumar Das (67 CWN 633) has held that no amicable arrangement for separate or exclusive possession of some lands of the holding by each of the co-sharers takes away the character of all of them as ‘co-sharer tenants’ of the entire holding. Furthermore, the right to pre-empt arises when not only a share but also ‘a portion’ of the holding is transferred. Share may refer to an undivided share but the word portion indicates that even if the particular portion is in the exclusive possession of one of the co-sharers, the other co-sharers are given the right to pre-empt. 13. There is no two–opinion on the position of law that if statute prohibits partition of a particular class of property except by way of registered document, then unless partition is effected by a registered deed there can be no partition in accordance with law even if, the parties actually made oral partition. In such a case, if the co-sharers remain in occupation of a particular demarcated portion by such mutual arrangement, for such arrangement their un-demarcated interest in the plot is not extinguished. 14. Since the land in case plot No.551/1928 has not been partitioned as yet in accordance with the provisions of Section 14 of the Act, the petitioners/pre-emptors remain co-sharers of the case plot No.551/1928 and have un-demarcated interest in the entire plot in question. Merely because the deed by which the share of the venders of the opposite parties has been transferred showing the demarcation does not or cannot necessarily imply that the demarcated property was transferred to the opposite parties. 15. I, therefore, find and hold that both the Learned Courts below erred in law in rejecting the prayer for pre-emption made by the petitioners in respect of case plot No.551/1928. 16. As a result, this Revisional Application succeeds and is allowed in part. 15. I, therefore, find and hold that both the Learned Courts below erred in law in rejecting the prayer for pre-emption made by the petitioners in respect of case plot No.551/1928. 16. As a result, this Revisional Application succeeds and is allowed in part. The impugned orders of the Learned Courts below so far as it relates to plot No.551/1928 are set aside and the application for pre-emption is allowed accordingly to that extent. The Learned Civil Judge (Junior Division), 1st Court, Bankura will now pass consequential orders in accordance with law. 17. The Revisional Application is thus disposed of. 18. There will be no order as to costs. 19. Urgent certified copy of this judgment, if applied for, be supplied to the Learned Counsel for the parties on their usual undertaking.