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2016 DIGILAW 256 (CAL)

Laxmikanta Chowdhury v. Madhusudan Paik

2016-03-10

SIDDHARTHA CHATTOPADHYAY

body2016
JUDGMENT : Siddhartha Chattopadhyay, J. 1. This revisional application has been preferred against the judgment dated 29.03.2014 passed by the learned District Judge Purba Medinipur, wherein the learned District Judge was pleased to allow the miscellaneous appeal by reversing the Order dated 24.04.2012 passed by the learned Civil Judge (Junior Division), 1st Court at Tamluk. 2. According to the petitioner, learned First Appellate Court failed to appreciate the position of law as has been settled by this Hon’ble Court that when entire share of an un-demarcated portion has been transferred pre-emption does not lie. 3. In the interest of effective adjudication factual aspects needs to be re-looked. It is admitted by the parties that the suit property originally belonged to Brajamohan Paik, who purchased land in Plot No. 2275, 2276 and 2277 and after his demised his wife Padmabati, son, two daughters, namely, Sankari and Kinkari inherited the said property in equal share. L.R.R.O.R. has been prepared and they have been paying rents individually. The said Kinkari Paik executed a sale deed on 04.03.2005 in respect of her share in favour of Laxmikanta Chowdhury on 26.06.2005 and Madhusudan Paik came to know that his sister Kinkari Paik executed a sale deed in favour of Laxmikanta Chowdhury. After obtaining the certified copy of the said sale deed, he came to learn that Kinkari Paik, in order to deprive him had sold her share to a stranger purchaser. He further contended that no notice was issued upon him as is required by law. He also challenged that the consideration money was actually 12,000 but it has been shown as 27,000, which is an inflated one. Laxmikanta Chowdhury, the present petitioner contested the application for pre-emption by filing written statement and according to him Kinkari Paik sold her share to him in order to repay the loan incurred by her husband. Prior to such sale, other co-sharers were given offer but they declined. In such circumstances, the sale deed was executed by Kinkari Paik although it was not an out and out sale deed. 4. Kinkari Paik also contested the case by filing separate-written statement and contended that after the demise of Brajamohan Paik, she along with her mother, sisters and brother inherited the suit property and L.R.R.O.R. was prepared accordingly showing their individual share and she had been paying rent in respect of her land. 5. 4. Kinkari Paik also contested the case by filing separate-written statement and contended that after the demise of Brajamohan Paik, she along with her mother, sisters and brother inherited the suit property and L.R.R.O.R. was prepared accordingly showing their individual share and she had been paying rent in respect of her land. 5. It appears from the record that learned Civil Judge (Junior Division) was pleased to dismiss the pre-emption case on contest holding that since Kinkari Paik transferred her entire share in favour of Laxmikanta Chowdhury, the petitioner Madhusudan Paik is not entitled to get an order of pre-emption. 6. After hearing the miscellaneous appeal learned District Judge, Medinipur had reversed the order of the learned Civil Judge mainly on the ground that Section 14 of W.B.L.R. Act was not complied with. 7. Short but important point of law is involved in this revisional application. The entire gamut of the controversy rests on the point if the property is demarcated or is un-demarcated and if it was partitioned amongst original co-sharers. 8. By virtue of an amendment of W.B.L.R. Act in 2000 certain important changes were effected. There is substitution of the words ‘plot of land of a raiyat’ in place of ‘holding of a raiyat’. That after such amendment right of pre-emption cannot be exercised even it is found that the raiyat remains some land in his holding even after the sale of the land which was sought to be pre-empted by the pre-emptor. Therefore, if the entire interest of the raiyat in the plot of land in question was sold by a raiyat in that case right to exercise pre-emption would not accrue in favour of the pre-emptee. But the crucial point is such that the Court has to consider if the partition has been effected in terms of Section 14 of the W.B.L.R. Act or not. In view of the provisions of Section 14 of W.B.L.R. Act an immovable property can only be partitioned amongst the co-sharers either by registered instrument or by a decree or order of Civil Court. No one can deny or ignore this provision of W.B.L.R. Act. Therefore, until and unless a partition is effected either by a registered instrument or by order of the Court that cannot be treated to be as a partition in its legal sense. No one can deny or ignore this provision of W.B.L.R. Act. Therefore, until and unless a partition is effected either by a registered instrument or by order of the Court that cannot be treated to be as a partition in its legal sense. Even if the parties enjoy their demarcated portion, the complexion of the case would not change. Till it is not partitioned, every co-sharer has the right in every inch of other co-sharers property be it demarcated or un-demarcated. Therefore, the litmus test is if Section 14 of W.B.L.R. Act is effected or not. In this case there was no averment that there was compliance of Section 14 W.B.L.R. Act. There is also no whisper that notice was served upon the other co-sharers as required by law. 9. Therefore, it seems to me that the learned District Judge has come to a correct conclusion by reversing the order of the learned Civil Judge (Junior Division). It is a very well-reasoned judgment passed by the learned District Judge and it does not warrant any interference. Accordingly, this revisional application merits rejection. 10. Let a copy of this order be sent to the learned Court below for his information and taking necessary action in accordance with law.