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2023 DIGILAW 883 (CAL)

Aber Ali Miah v. Akber Ali and Miah

2023-06-07

AJOY KUMAR MUKHERJEE

body2023
JUDGMENT : AJOY KUMAR MUKHERJEE, J. 1. The instant application has been preferred against the judgment and order dated 19.08..2020 passed by learned Additional District Judge, 3rd Court at Cooch Behar in connection with Misc. (Pre) Appeal No. 12 of 2015. By the impugned order learned Appellate Court was pleased to set aside the order dated 15.06.2015 passed by the learned Civil Judge (Junior Division) Sadar, Cooch Behar in Misc. pre-emption Case No. 9 of 2012 and passed order of preemption in favour of petitioner/opposite party no. 1 herein. Petitioner herein/pre-emptee contended that the suit plot being LR Plot Nos. 704 and 705 Mouza-Harinchowra is the subject matter of the pre-emption application and the opposite party no. 1 in the instant revisional application, being the pre-emptor, filed aforesaid Misc. pre-emption Case, being No. 09 of 2012, on the ground that his right of co-sharership and continuous land ownership has been overlooked by the opposite party no. 2 (seller) while selling the land from LR Khatian Nos. 704 and 705 to the opposite party No. 1/petitioner herein. In support of his claim the pre-emptor furnished LR Khatian, being No. 810, which is marked as Exhibit 1 and title deeds, being Nos. 5381 and 5378 of 1998 (marked as Exhibit 2 and 3 respectively). 2. Petitioner herein contended although there are reference of as many as 12 plots in pre-emptor’s title deed, but his name has been recorded only in respect of LR plot No. 705 measuring about 0.03 acres. He further submits that the pre-emptor has not taken the plea in respect of other plots, that his name has not been recorded and therefore, he has taken step for correction of the Record of Rights to the concerned Block Land and Land Reforms office. On the contrary during cross examination, the pre-emptor categorically stated that he possesses only two plots, but ultimately it appears that the pre-emptor possesses only 0.03 acres of land in respect of LR plot No. 705. The pre-emptor has not filed any document to show that he has title or possession over LR Plot No. 704. 3. Petitioner further pointed out that on the other hand, the petitioner/pre-emptee being opposite party no. 1 of the Misc. The pre-emptor has not filed any document to show that he has title or possession over LR Plot No. 704. 3. Petitioner further pointed out that on the other hand, the petitioner/pre-emptee being opposite party no. 1 of the Misc. Pre-emption Case, claimed co-sharership and contiguous land ownership on the strength of Khatian standing in his name, being LR Khatian No. 649 in respect of LR Plot No. 704, land measuring about 0.06 acres. Petitioner submits that the LR Khatian No. 649 is the prima facie proof of possession unless rebutted. The pre-emptor has not been able to produce any evidence to rebut the fact of possession of 0.06 acres of land by the pre-emptee over LR Plot No. 704, which is one of the suit plots. Accordingly petitioner contended that both the pre-emptor and pre-emptee have lands only in suit plot nos. 704 and 705. Therefore, the sole fact for determination remains as to who possesses the longest common boundary under the provisions of sections 8 of the West Bengal Land Reforms Act 1955 (in short Act of 1955). 4. Learned counsel appearing on behalf of the opposite party no. 1 submits that the opposite party no. 1 purchased 3 khata 15 dhurs land as prescribed in schedule ‘A’ to the plaint from Abdul Jonab Miah, on 26.11.1996 by executing a sale deed being No. 5381 for 1998. Opposite party no. 1 herein thereafter also purchased 1 khata 4 dhurs of land from Abdul Malek on 26.10.1998 which also described in ‘A’ schedule by dint of another registered deed being no. 5378 of 1998. Accordingly by such purchase the petitioner/opposite party no. 1 herein became owner and possessor of 3 katha 15 dhurs and 1 katha 4 dhurs of land described in schedule ‘A’ to the plaint. He further submits that the land described in ‘A’ schedule and schedule ‘B’ to the plaint (which is owned by opposite party no. 2 herein) are situated just side by side and part of ‘A’ schedule land is situated on the western side of the ‘B’ schedule land and both ‘A’ and ‘B’ schedule land recorded under same khatian. Opposite party no. 1 herein further submits while he was possessing the ‘A’ schedule land being the contiguous owner of ‘B’ schedule land and also being a co-sharer of ‘B’ schedule land, opposite party no. Opposite party no. 1 herein further submits while he was possessing the ‘A’ schedule land being the contiguous owner of ‘B’ schedule land and also being a co-sharer of ‘B’ schedule land, opposite party no. 2, the owner of ‘B’ schedule land sold 7.50 satak of land to the petitioner herein out of his share by executing a registered deed being no. 699 for 2012 on 25.01.2012 as prescribed in ‘C’ schedule to the plaint. Opposite party further states that prior to the sale to the OP no. 1/petitioner herein, no notices were served upon the petitioner regarding the above mentioned sale and opposite party no. 2 without the knowledge of the petitioner and without serving notice upon the petitioner, sold 7.5 satak of land to opposite party no. 1. He further submits that on 25.01.2012/27.01.2012 or prior to that date, the petitioner herein was neither a co-sharer of the land nor contiguous owner to the case land as described in ‘C’ schedule and on the contrary opposite party no. 1 is a co-sharer in respect of ‘C’ schedule land and he has also contiguous land to the case land and he has been possessing the longest common boundary of the case land. 5. His further case is that from the pleading of the opposite party no. 1 it is clear that opposite party no. 1 herein Akbar Ali became the owner and possessor of 3 Kathas 15 dhurs of land and 1 kathas 4 dhurs of the land by two registered sale deeds and petitioner herein did not challenge the said deeds. It is not in dispute that Abdul Monuaf Miah is the rightful owner and possessor of ‘B’ schedule land measuring 0.23 acres out of which he sold 7.50 satak of land in favour of the petitioner herein vide registered deed for the year 2012 and accordingly he contended that the court below rightly passed preemption decree in Misc. Pre-emption case No. 12 of 2015 upon allowing the said appeal after setting aside the order dated 15.06.2015 passed by the learned Civil Judge (Junior Division) in pre-emption case no. 9 of 2012 and as such the order impugned does not call for any interference and application is liable to be dismissed. 6. I have considered submissions made by both the parties. 7. 9 of 2012 and as such the order impugned does not call for any interference and application is liable to be dismissed. 6. I have considered submissions made by both the parties. 7. It appears that the petitioner herein claimed co-sharership and contiguous land ownership on the strength of Khatian standing in his name being LR Khatian no. 649 in connection with LR Plot no. 704 measuring 0.06 acre. It is true that the pre-emptee/ petitioner could not produce any deed in support of his title but the entry in record of rights prima-facie establish possession of the petitioner herein and said presumption has not been rebutted by the opposite party no. 1 herein in either of the earlier proceedings. There is also nothing in the record to ascertain that the pre-emptor has the longest common boundary with the case land. The settled principle of law is that the pre-emptor who has initiated pre-emption proceeding is supposed to prove his own case that he hold longest common boundary in order to get an order of pre-emption. On perusal of the impugned judgment it appears that court below has set aside the order of the trial court on the ground that preemptee could not establish his right over the suit plot except recording his name in the khatian. 8. Needless to say that 3rd proviso to section 8(1) of the West Bengal Land Reforms Act 1955 says that as amongst raiyat possessing lands adjoining such plot of land, preference shall be given to the raiyat having longest common boundary with the land transferred. Said proviso deals with the possession of land. By the words “Raiyats possessing lands adjoining such plot of land” used in section 8(1) means a raiyat having under possession of common boundary. So common boundary under possession is the test for the claim of a contiguous raiyat to pre-emption and in deciding which of the rival claimants for pre-emption is in possession of longer common boundary, to have preferential claim, entry in the record of rights is certainly prima facie proof of possession, unless it is rebutted. From the khatian exhibited by the pre-emptor in respect of LR Khatian No. 819, it appears that as per the entry in the record of rights, pre-emptor/opposite party no. 1 possesses 0.03 acres of land in respect of the LR plot no. From the khatian exhibited by the pre-emptor in respect of LR Khatian No. 819, it appears that as per the entry in the record of rights, pre-emptor/opposite party no. 1 possesses 0.03 acres of land in respect of the LR plot no. 705 and no document is coming before the court that the pre-emptor has any title or possession over the LR Plot no. 704. It may be that in the pre-emptor’s title deed, 12 plots have been mentioned but the pre-emptor failed to clarify by filing cogent documents that those plots are adjacent to the suit plots or he is still owner and possessor of said plots. In the cross-examination though pre-emptor stated that he possesses only two plots but from the documents it appears that his name has been recorded only in respect of 0.03 acres of land in respect of LR plot no. 705. On the contrary the petitioner herein as pre-emptee exhibited L.R. Khatian no. 649 in support of co-sharership and contiguous land ownership which reveals that the name of pre-emptee has been recorded in respect of 0.06 acres in LR plot no 704. Since aforesaid record in the name of the pre-emptee/petitioner stands unrebutted in the pre-emption case, it shows that the pre-emptee/petitioner is possessing land adjoining to case land having longest common boundary with the land transferred. Needless to repeat that in such cases the burden heavily lies upon the pre-emptor/opposite party no. 1 to prove his case of possessing longest common boundary, but no witness from the side of pre-emptor has supported pre-emptors case of having possession of longest common boundary and he also failed to prove his possession in respect of LR. Plot no. 704. The petitioner also could not file map to show that the quantum of land, he possesses is comprised of longest common boundary. In there is nothing to disbelieve the petitioner’s possession of land having longest common boundary with the land transferred by dint of entry in the record of rights which is prima facie proof of possession. Accordingly the court below was not justified in allowing pre-emptor/opposite party no. 1’s prayer for pre-emption disbelieving the entry in records of rights, in favour of the petitioner herein, showing longest common boundary. In view of above judgment passed by the court below is not sustainable in the eye of law. 9. Thus C.O. 159 of 2022 is allowed. Accordingly the court below was not justified in allowing pre-emptor/opposite party no. 1’s prayer for pre-emption disbelieving the entry in records of rights, in favour of the petitioner herein, showing longest common boundary. In view of above judgment passed by the court below is not sustainable in the eye of law. 9. Thus C.O. 159 of 2022 is allowed. The impugned judgment passed by the Learned Additional District Judge, 3rd Court, Cooch Behar on 19.08.2020 in connection with Misc.(Pre) appeal no. 12 of 2015 is hereby set aside and the judgment passed by the learned Civil Judge (Junior Division), Sadar, Cooch Behar is Misc. pre-emption Case no. 9 of 2012 dated 15.06.2015 is hereby affirmed. However there shall be no order as to the costs. 10. Urgent photostat certified copies of this order may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.