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2017 DIGILAW 408 (CAL)

Rabin Kr. Chanda v. Satadal Karmakar

2017-04-20

SIDDHARTHA CHATTOPADHYAY

body2017
JUDGMENT : 1. The petitioner questioned the legality and validity of the judgment passed by the learned Additional District & Sessions Judge, Fast Track 2nd Court, Tamluk, Purba Medinipur in Misc. Appeal No. 104 of 2004 mainly on the ground that the learned First Appellate Court has failed to appreciate the position of law and also did not consider the evidence and documents filed by him in connection with Judicial Misc. Case No. 04 of 1993. 2. The present opposite party has initiated the pre-emption case before the learned Civil Judge, Junior Division and lost the same. Feeling aggrieved at it, the present opposite party preferred an appeal before the First Appellate Court and this time he got a favourable order from that Court. 3. Being aggrieved with the said finding of the First Appellate Court the present petitioner has come before this court mainly on the ground that the learned First Appellate Court could not appreciate the issue of co-sharer-ship and the ground of vicinage in its proper perspectives. 4. It appears from the impugned order passed by the First Appellate Court that he has considered the evidence adduced by the respective parties and mainly relied on Section 14 of W.B.L.R. Act. According to him, no partition can be effected unless there is a compliance of Section 14 of W.B.L.R. Act. Admittedly, in this present case there was no compliance of Section 14 of W.B.L.R. Act. It is true that there is evidence to the extent that it was amicably partitioned by and between the parties and they had been possessing their respective shares amicably. But that position itself cannot exonerate the compliance of Section 14 of W.B.L.R. Act. It may be that the parties for their convenience used to possess their respective portion but that does not mean they have lost their right as a cosharer. From that angle this Court is of the view that the learned First Appellate Court has quite rightly come to a correct conclusion which does not require any interference from this Court. Learned First Appellate Court is fair enough that he has also appreciated the finding of the learned Trial Court and held that when the learned trial Court had passed that order, there was no change in W.B.L.R. Act. Learned First Appellate Court is fair enough that he has also appreciated the finding of the learned Trial Court and held that when the learned trial Court had passed that order, there was no change in W.B.L.R. Act. After the concept of holding has been given a go-bye in view of present amendment of W.B.L.R. Act, the said order of the trial Court does not sustain. 5. The learned First Appellate Court also held, after analysing the factual aspect and the deeds of the present opposite party that he has also land adjoining to the suit land. So on the ground of vicinage, he is also entitled to get pre-emption. In such circumstances, finding of the learned First Appellate Court cannot be disturbed. 6. Before this Court, the learned Counsel appearing on behalf of the petitioner mainly agitated that the deed itself goes to show that the suit land is a shop room and it does not come within the purview of Section 2 (7) of W.B.L.R. Act. According to him, the said act specifically speaks which shall be included in the definition of land. It does not say that “shop” shall be treated as a land and that can be pre-empted. 7. It is perhaps needless to say that the definition of land has seen a revolutionary change on the concept of land. The customary division of land into two main categories were agricultural and non-agricultural land. But Nonagricultural Tenancy Act being repealed, the definition of non-agricultural land has been done away with. After the amendment, land means “land of every description”. The Section 2 (7) although specifies certain types of land to be included in the definition of land but thereafter included “any other land together all interests and benefits arising out of land and things attached to the earth or permanently fastened to anything attached to earth.” The learned Counsel wanted to impress this court since the shop room is excluded from the said definition, it is not pre-emptible. The scope of considering the definition of “shop” in terms of Shops and Establishments Act does not arise at all. The shop room as described in that Act shall be given an effect to in terms of that Act only and it has no bearing in the context of W.B.L.R. Act. The scope of considering the definition of “shop” in terms of Shops and Establishments Act does not arise at all. The shop room as described in that Act shall be given an effect to in terms of that Act only and it has no bearing in the context of W.B.L.R. Act. If there was any dispute regarding any ‘shop’ under ‘West Bengal Shop and Establishment Act’, in that case the definition of shop in terms of Shops and Establishments Act shall be considered therein. But so far as Section 2 (7) of W.B.L.R. Act is concerned, it is something different. After describing of some species, the Section 2 (7) (18) speaks “any other land together with all interests and benefits arising out of land and things attached to the earth or permanently fastened to anything attached to earth.” By virtue of such incorporation, the legislature wanted to bring everything on earth in the purview of definition of land. 8. Considering this aspect, this Court is of the view that there is no merit in this revisional application and it stands dismissed. The judgment passed by the learned First Appellate Court is hereby affirmed. 9. Let a copy of this order be sent to the learned Court below for his information and taking necessary action in accordance with law. 10. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.