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2019 DIGILAW 197 (CAL)

Monish Chandrasa Sarkar v. Kalpana Singha

2019-02-07

BIBEK CHAUDHURI

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JUDGMENT : Bibek Chaudhuri, J. Judgment and order dated 19th September, 2016 passed by the learned Additional District Judge, Kandi, Murshidabad in Misc Appeal No.15 of 2012 affirming an order dated 8th June, 2012 passed by the learned Civil Judge (Junior Division), 2nd Court, Kandi in Misc Case No.18 of 2005 arising out of an application under Section 8 of the West Bengal Land Reforms Act 1956 (herein describe as the said Act) came to be challenged in the instant revision under Article 227 of the Constitution of India. 2. The preemptee/appellant of the above mentioned misc appeal is the petitioner before this court. 3. One Prodyut Kumar Singha, predecessor-in-interest of the present opposite parties filed an application under Section 8 read with Section 9 of the said Act which was registered as Misc Case No.18 of 2005 stating, inter alia, that one Ram Chandra Singha and five others were joint owners and co-sharers in respect of piece and parcel of land in plots No.3022 and 3023, khatian No.2049, JL No.65 of mouza Sadpur within P.S Kandi measuring about 0.233 decimal and 02.50 decimal of land respectively. The said Ram Chandra Singha transferred his 1/6th share to another co-sharer, namely, Pralay Singha. After the death of Pralay Singha his heirs and successors inherited his share in the land described above. Subsequently, the heirs of the said Pralay Singha, since deceased transferred their share to the opposite party and his name was recorded in the LR Record of Rights along with other co-sharers. It is further pleaded by the preemptor that the said property has not been partitioned amongst the co-sharers. For effecting partition between the co-sharers, Title Suit No.127 of 1991 is pending in the court of learned Civil Judge (Senior Division), Kandi. That on 9th September, 2004, one Prabir Singha, one of the co-sharers transferred his share in favour of the present petitioner by executing a registered deed of sale dated 9th September, 2004 at a consideration price of Rs. 1,50,000/- without serving any notice to the preemptor/opposite party. Such transfer by the Prabir Singha, one of the co-sharer in favour of a stranger purchaser prompted the preemptor to file an application under Section 8 of the said Act on 20th April, 2005. 4. 1,50,000/- without serving any notice to the preemptor/opposite party. Such transfer by the Prabir Singha, one of the co-sharer in favour of a stranger purchaser prompted the preemptor to file an application under Section 8 of the said Act on 20th April, 2005. 4. The petitioner, as opposite party filed a written objection against the above mentioned application under Section 8 of the said Act denying all material allegations made out against him by the preemptor. It is specifically pleaded by the present petitioner as opposite party in the said misc case that the property in question was partitioned amongst the co-sharers by a registered deed of partition and the vendor of the petitioner got his well demarcated share as per the partition deed. However, the petitioner without honouring the amicable partition between the co-sharers filed Title Suit No.127 of 1991 for partition only to harass the vendor of the petitioner and other co-sharers. According to the petitioner, since the property in question has been partitioned amongst the cosharer by registered deed of partition and he purchased well demarcated portion of one of the co-sharers, the preemptor had no right to pre-empt the property in question and the said misc case was liable to be dismissed. 5. On the above pleadings, the parties led their respective evidence before the learned trial judge. On due consideration of the respective cases and the evidence on record, both oral and documentary, the learned Civil Judge (Junior Division), 2nd Court, Kandi allowed the said misc case on contest without cost. Against the said order, the present petitioner filed Misc Appeal No.15 of 2012 which came up for hearing before the learned Additional District Judge, Kandi, Murshidabad on 19th September, 2016. The learned appellate court dismissed the said misc appeal by affirming the order passed by the learned Civil Judge (Junior Division), 2nd Court, Kandi. 6. Mr. Ruitendra Banerjee, learned Advocate appearing for the petitioner with all fairness submits that the predecessor-in-interest of the opposite parties being the preemptor was one of the co-sharers in respect of the property in question. The vendor of the petitioner was also a co-sharer in respect of the said property. The said vendor namely Prabir Singha transferred his entire share in the property in favour of the petitioner. Therefore, the predecessor-in-interest of the opposite party was not entitled to pre-empt the said property as a co-sharer. 7. The vendor of the petitioner was also a co-sharer in respect of the said property. The said vendor namely Prabir Singha transferred his entire share in the property in favour of the petitioner. Therefore, the predecessor-in-interest of the opposite party was not entitled to pre-empt the said property as a co-sharer. 7. Secondly, it was argued by the learned Advocate for the petitioner that the joint property was partitioned by registered deed of partition amongst the co-sharers and vendor of the petitioner transferred his well demarcated exclusive property in favour of the petitioner over which the predecessor-in-interest of the opposite parties could not claim to be the co-sharer. 8. Mr. Partha Pratim Roy, learned Advocate for the opposite parties drew my attention to a judgment passed in Title Appeal No.2 of 1997 against the judgment and decree passed by the then Additional District Judge, Kandi in partition suit No.83 of 1991. It is pertinent to mention here that Prodyut Kumar Singha, predecessor-in-interest of the present opposite parties was one of the plaintiffs in the said partition suit which was filed against the vendor of the petitioner and other co-sharers and the property in question was the subject matter of the said property. In the judgment passed in Title Appeal No.2 of 1997, the learned Additional District Judge, Kandi clearly held that suit property was not amicably partitioned between the co-sharers by virtue of the deed of partition dated 5th January, 1988. Accordingly the judgment and decree passed in partition suit No.83 of 1991 was set aside by allowing the appeal and the suit was sent back of remand for fresh trial. The said partition suit is still pending. Therefore, the property in question has not been partitioned between the co-sharers. The vendor of the petitioner being one of the co-sharers transferred his share in the property in question. 9. Under such circumstances, the court below allowed the application for pre-emption filed by the predecessor-in-interest of the opposite parties. There is no illegality in the order and question for interference is not called for. 10. Having heard the submission made by the learned counsels appearing for the parties and on perusal of the lower court record, it is ascertained that the property in question has not been partitioned as yet amongst the co-sharers. There is no illegality in the order and question for interference is not called for. 10. Having heard the submission made by the learned counsels appearing for the parties and on perusal of the lower court record, it is ascertained that the property in question has not been partitioned as yet amongst the co-sharers. The vendor of the petitioner used to own and possess the property which was transferred to the petitioner jointly with the opposite parties and other co-sharers. The joint property has not been partitioned as yet and a suit for partition is pending between the co-sharers. 11. On perusal of the judgments passed by the learned trial judge and the learned judge of the 1st Appellate Court, I find that they have come to a right decision that the vendor of the petitioner was a co-sharer raiyat and he transferred the land to a person other than a co-sharer of a raiyat in the plot of land. Therefore, the predecessor-in-interest of the opposite parties had every right to pray for pre-emption. 12. Learned Advocate for the petitioner raised a question as to whether pre-emption is permissible when a co-sharer transfers his entire share in the land to a third party. The issue is no more res integra now. The Division Bench of this Court in C.O No.1164 of 2015 (Naymul Haque @ Nainul Haque vs. Allauddin Sk) along with other connected matters in its judgment dated 8th August, 2018 clearly held that right of pre-emption of a co-sharer is available even if entire share of land is transferred by another co-sharer to a third party stranger. 13. Therefore, I do not find any merit in the instant revision and the same is liable to be dismissed. 14. Before I part with, I am constrained to record my concern and anguish over certain observation made by the learned Additional District Judge, Kandi in his judgment in Misc Appeal No.15 of 2012. In order to arrive at a decision as to whether partition of the property in question was effected amongst the co-sharers and allotment of well demarcated shares have been made in favour of them, learned Additional District Judge made the following observations;- "The best example to understand it would be Pakistan and India. For the dispute raised regarding L.O.C (Line of Control) it cannot be said India and Pakistan are Co-owners or Co-sharers. For the dispute raised regarding L.O.C (Line of Control) it cannot be said India and Pakistan are Co-owners or Co-sharers. So which shall be the Common Dividing Line makes the Suit and Suit for Demarcation because theoretically it is only a thin line of points where they join at two sides to divide both sides but when Pakistan was separated from India, it was the Partition. Two owners (theoretically) decided to separate their territory from each other. So Partition took place. Three sides of each remained on the other side but only the Dividing Line remained a dispute. Actually it would be better to say the 12th side of a 12 sided polygon of India is in dispute with the 5th side of a 5 sided polygon of Pakistan of which the 12th side of India is the 5th side of Pakistan who raised the dispute or at all such is a dispute or not are political issues and not for this Court. By way of example it is taken to distinguish between two Co-sharers seeking division of their entire land and two contiguous owners seeking the determination of their Dividing Line or Line of Control. In this case, the three sides or not even one side had been demarcated. All the four sides remained undemarcated, therefore, it cannot be said that there had been a valid partition between the parties by the impugned Deed of Partition." 15. The above observation made by Sri. P.P. Dutta, learned Additional District Judge, Kandi is absolutely uncalled for and misconceived. In order to address an issue as to whether there is any qualitative difference between partition and demarcation of property, reference of India and a neighbouring country is not only unnecessary, but, in my considered view devoid of any logical interpretation. Partition inter vivos between the co-shares cannot be equated with the partition of Indian sub-continent. Dispute, if any, along the line of control between two countries appears to be a very sensitive political issue which has no occasion to be referred in a judgment by a Court of Law while deciding a question as to whether partition according to the law was effected amongst the co-sharers or not. 16. Dispute, if any, along the line of control between two countries appears to be a very sensitive political issue which has no occasion to be referred in a judgment by a Court of Law while deciding a question as to whether partition according to the law was effected amongst the co-sharers or not. 16. I am sure that Sir Dutta has crossed the limit of judicial prudence in as much as a prudent and sane person who holds the holy chair of a judge will not indulge himself in making such observation in the body of the judgment. The learned Judge is totally confused regarding the basic principles of law of partition and preemption. 17. I am not unmindful to note that the Supreme Court in number of cases discharged the High Court from making any aspersion or derogatory remarks against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct. The judgment of the Supreme Court in A.M. Mathur vs. Pramod Kumar Gupta reported in, (1990) 2 SCC 533 may be cited in this regard. 18. I am of the considered view that the concerned judicial officer be informed through the Registrar General of this Court that logical deduction of a legal principle cannot rest upon extraneous consideration. Reasoning of a decision in a judgment cannot stand on citing references of some national or international political issue. The learned judge must not forget that his judgment is available in public domain. Therefore, while delivering judgment, a judicial officer must show utmost restraint and discipline and must confine his discussion to the issues involved in a proceeding on the fact situation of a particular case. He cannot travel beyond the factual matrix involved in a suit. 19. The above observation of this Court is directed to be sent to the learned judge who passed the impugned order only for future guidance. 20. He cannot travel beyond the factual matrix involved in a suit. 19. The above observation of this Court is directed to be sent to the learned judge who passed the impugned order only for future guidance. 20. I also deem fit and proper to send a copy of this order along with a copy of the impugned order dated 19th September, 2016 passed by the learned Additional District Judge, Kandi, Murshidabad in Misc Appeal No.15 of 2012 to the Hon'ble the Acting Chief Justice, High Court, Calcutta through the Registrar General to consider if the learned judge should be directed to attend a training programme in West Bengal Judicial Academy on the principles of "Writing Judgments".