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2016 DIGILAW 148 (CAL)

Ajit Kumar Mukherjee v. Bedanta Bhattacharya

2016-02-09

SOUMEN SEN

body2016
JUDGMENT : Soumen Sen, J. 1. This revisional application is directed against an order dated 19th December, 2015 passed by the learned Additional District Judge, 1st Court, Burdwan in Misc. Appeal No. 07/15 and 16/13 affirming the order passed by the learned Civil Judge (Junior Division) 2nd Court, Burdwan in pre emption Misc. Case No. 05/2010. This order of affirmation is the subject matter of this revisional application. 2. Shorn of unnecessary details, an application under Section 8 of the West Bengal Land Reforms Act was filed by the opposite party no. 1 claiming his right of preemption in respect of A-schedule property. 3. One Sri Kishori Mohan Roy was the owner of the properties involved in this proceeding. The property described in Schedule C originally belonged to said Kishori Mohan Roy, who became the owner of the said property by virtue of decree of partition passed in Title Suit No. 34 of 1959 and by purchase from his brother Murari Mohan Roy under two registered deeds being the deed no. 8153 of 1974 and 546 of 1976. Kishori Mohan Roy thus became the absolute owner of the C schedule property and got his name recorded in the L.R. record of right. The IB-schedule property was acquired by purchase from the brothers as mentioned aforesaid. 4. Kishori Mohan Roy during his lifetime transferred the B-schedule property through a deed of sale dated 14th October, 2004, registered on 15th October, 2004 to the opposite party no. 1. The opposite party nos. 1 and 2 were tenants in respect of B-schedule property. After the aforesaid transfer Kishori Mohan Roy retained the rest portion of C-schedule property, i.e. A-schedule property, which is situated at the southern side of B-schedule property. It is alleged that he had agreed to offer A-schedule property to the petitioner/ opposite party no. 1, in case he decides to sale A-schedule property in future. 5. The petitioners claimed to have purchased a part of the property situated at R.S. Plot No. 6509 and 6512/6591 being L.R. Plot No. 4915 and 4919 of Mouza Radhanagar from the opposite party nos. 3 and 4 on 4th December, 2009 by virtue of a registered deed. 6. 1, in case he decides to sale A-schedule property in future. 5. The petitioners claimed to have purchased a part of the property situated at R.S. Plot No. 6509 and 6512/6591 being L.R. Plot No. 4915 and 4919 of Mouza Radhanagar from the opposite party nos. 3 and 4 on 4th December, 2009 by virtue of a registered deed. 6. The said building is situated on the land comprised in R.S. Plot No. 6509, 6512/6594 and adjacent to the building situated at Plot No.6512 measuring an area of 036 decimal, 012 decimal and 016 decimal respectively of mouza Radhanagar, which originally belonged to Kishori Mohan Roy. He had transferred the lands measuring 022 decimal out of 036 decimal lands at R.S. Plot No. 6509, lands measuring 001 out of 012 decimal along with old dilapidated two storied building and the lands measuring 15.5 out of 16 decimal lands comprised R. S. Plot No. 6512 to the opposite party nos. 1 and 2 by virtue of registered deed dated 14th October, 2004. 7. Kishori Mohan Roy died leaving behind his son and daughter, the opposite party nos. 3 and 4 herein, who jointly inherited the A-schedule property. It is alleged that the said legal heirs without the knowledge of the opposite party no. 1 transferred the said property to the petitioners by a deed executed on 4th December, 2009, but registered on 4th February, 2009 in breach of the aforesaid agreement. 8. The petitioners claimed to have acquired the land and building comprised in R. S. Plot No. 6510 measuring an area 019 decimal along with part of the dilapidated two storied building and lands measuring 305 sq. ft. comprised in R. S. Plot No. 6512/6594 and lands measuring 190 sq. ft. comprised in plot no. 6512/6591 of Mouza Radhanagar from the legal representatives of deceased Kishori Mohan Roy by virtue of sale deed registered on 11th June, 2007. 9. The entire portion and/or share held by Kishori Mohan Roy were sold by three different deeds dated 4th October, 2004, 11th June, 2007 and 4th December, 2009 by Kishori Mohan Roy himself and after his death by opposite party nos. 2 and 3. 10. The opposite party challenged this transfer and claimed preemption. The Trial Court on perusal of Exhibits 6 to 8 found that the opposite party no. 2 and 3. 10. The opposite party challenged this transfer and claimed preemption. The Trial Court on perusal of Exhibits 6 to 8 found that the opposite party no. 1 is the adjoining land owner of the property in respect of which preemption is sought for and the petition for preemption was held to be maintainable, as the registration of the impugned deed was completed on 4th December, 2009 although executed in the year 2007 and the suit was filed on 3rd February, 2010. The application was held to be filed within the period of limitation. 11. The Trial Court on the basis of the decisions of this Court held that according to the Land Reforms Act, the date of registration is the date to be reckoned with for the purpose of accrual of right of preemption. The Trial Court found that the impugned deed was registered on 4th December, 2009, but the petitioner’s previous purchased deed as Exhibit-A was registered on 29th March, 2010 and accordingly, it was held that on the date of purchase of such property the petitioner was not a co-sharer of the suit property. Accordingly, the contention of the opposite parties on that score was rejected. 12. In an appeal preferred by the petitioners, the Appellate Court found that the documents exhibited would show that the legal heirs of Kishori Mohan Roy executed the deed in the year 2007 with the intention to transfer the remaining portion of plot no. 6512/6594 and 6512/6591 and also some portion of plot no. 6510. In the said deed they also mentioned that the northern side of plot no. 6509 is the portion retained by their predecessor. By virtue of the said deed the said legal heirs allowed the petitioners to use 10 inch wide wall situated at the southern portion of plot no. 6509 as common wall but the deed was not registered and undisputedly it was registered only on 29th March, 2010. 13. Accordingly, when the deed of 2007 was executed, no right of preemption accrued in favour of the opposite party no. 1 as it was not registered and when it was registered in the year 2010, the impugned deed of 2009 had already come into force and, accordingly, the petitioners could not claim that they became the adjoining owner of the disputed plot on the date when the opposite party nos. 1 as it was not registered and when it was registered in the year 2010, the impugned deed of 2009 had already come into force and, accordingly, the petitioners could not claim that they became the adjoining owner of the disputed plot on the date when the opposite party nos. 3 and 4 transferred the suit plot in their favour in the year 2009. 14. It is revealed from the evidence that when the property was transferred in the year 2010 in favour of the petitioners/appellants then only the opposite party nos. 1 and 2 were the adjoining land owner and as such they have the right to claim preemption, which was not offered by the legal heirs of Kishori Mohan Roy. 15. On consideration of such facts it was held that the opposite party nos. 1 and 2 became the co-sharer of the property and are entitled to pre-emption. 16. In this revisional application it is sought to be argued that having regard to the fact that the said property is a dwelling house the question of preemption would not arise. It does not appear that this point was argued before the Trial Court. The pleading shows that Kishori Mohan Roy transferred a portion of the share in respect of the said dwelling house in favour of the opposite party nos. 1 and 2 and retained the remaining share. 17. The main contention of the opposite parties appears to be that the application was barred by limitation. The question of limitation was considered by both the Courts below and on the basis of the law settled by this Court that under the scheme of Land Reforms Act, it is only the date of registration of sale which is material date for finding out the person who are entitled to preempt and relevant date is completion of registration under Section 61 of the Registration Act, the application for preemption was held to be maintainable. 18. Therefore, the concurrent findings recorded by the Courts below do not call for any interference. 19. The Court in revisional jurisdiction sparingly would interfere with such findings, unless it appears that the said judgment is perverse. 18. Therefore, the concurrent findings recorded by the Courts below do not call for any interference. 19. The Court in revisional jurisdiction sparingly would interfere with such findings, unless it appears that the said judgment is perverse. It is equally well settled that merely because on the given set of facts the Court can take a different view in exercise of power under Article 227 of the Constitution of India the Court shall refrain from taking such view. 20. The learned counsel for the petitioners has referred to the following decisions: Niranjan Chatterjee & Others v. State of West Bengal & Others, WPLRT No. 197 of 2007 Pijush Kanti Chowdhury v. State of West Bengal & Others, WPLRT No. 442 of 2006, as also two unreported judgments: Sabri Properties Pvt. Ltd. v. CTS Industries Limited, C.O. No. 561 of 2013 and Smt. Minati Chatterjee & Others v. Sri Sushil Kumar Jana. 21. In my view that the aforesaid decisions are not applicable to the present case. No issue was raised before the Trial Court that since it was the dwelling house of Kishori Mohan Roy the preemption proceeding is not maintainable. Moreover, it has lost its character as dwelling house once Kishori Mohan Roy transferred his interest in favour of the opposite party nos. 1 and 2. 22. In view thereof the revisional application is fails and is dismissed. 23. There will be no order as to costs.