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2024 DIGILAW 1022 (CAL)

Sayan Sarkar v. Purnendu Banerjee

2024-05-13

SHAMPA SARKAR

body2024
JUDGMENT : (Shampa Sarkar, J.) The revisional application arises out of an order dated April 01, 2023, passed by the learned Civil Judge, (Junior Division), 6th Court at Alipore, district South 24 Parganas, in Misc. Case No.04 of 2022. 2. By the order impugned, the learned court allowed an application for local investigation. Misc. Case 04 of 2022 was an application under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as said Act). The learned court was of the view that in order to prove whether the properties were adjacent to each other, positive evidence was necessary. The prayer of the preemptor/opposite party No.1, for appointment of an investigation commissioner was allowed. Whether the property of the preemptor was adjacent to the property sold to the petitioner and other local features of the property, were sought to ascertained. 3. The petitioner is the pre-emptee and the opposite party No.1 as preemptor had filed an application under Section 8 of the said Act, in the court of the learned Civil Judge (Junior Division), 6th Court at Alipore, district 24 Parganas (south). 4. The subject-matter of the preemption case was 360 sq. ft. or 0.825 decimals danga land of Mouza Amtala, in R.S. dag no. 176 corresponding to L.R. dag no.655. 5. According to the preemption application, R.S. dag no.176, measuring about 22 decimals originally belonged to Amulya Charan Bakshi. By a registered deed of gift he transferred 3.67 decimals of land to the proforma opposite party, Samir Kumar Bakshi. Subsequently, Samir Kumar Bakshi further acquired 5.5 decimals of land from his mother Jyotshna Rani Debi. Later, Jyotsna Rani Debi transferred 4.58 decimals of land to Samir Kumar Bakshi. Accordingly, Samir Bakshi became owner of 13.75 decimals of land in R.S. dag no.176 corresponding to L.R. dag no.655 and by a registered deed the preemptor purchased 3.30 decimals of danga land from Samir Kumar Bakshi on August 10, 2018. Thereafter, the petitioner also purchased 0.87 decimals of land in R.S. dag no.177. The preemptor thus, became owner of more or less 4 decimals in R.S. dag No.177 corresponding to L.R. dag No.656. That the property measuring about 24 decimals situated in R.S. dag No.177 corresponding to L.R. dag no.656 was an adjacent plot and the preemptor had right, title and interest in a part of the same. The preemptor thus, became owner of more or less 4 decimals in R.S. dag No.177 corresponding to L.R. dag No.656. That the property measuring about 24 decimals situated in R.S. dag No.177 corresponding to L.R. dag no.656 was an adjacent plot and the preemptor had right, title and interest in a part of the same. The preemptor claimed preemption of the suit property on the ground of contiguous ownership. 6. The petitioner objected to such application, inter alia, stating that the petitioner had purchased a specific demarcated plot of land measuring about 0.825 decimals in R.S. dag No.176 corresponding to L.R. dag No.655 of Mouza Amtala. From the deeds and the plans annexed to the deeds, it was crystal clear that the property purchased by the opposite party No.1/preemptor was not adjacent to R.S. plot No.176 corresponding to L.R. dag No.655. 0.825 decimals of land in R.S. dag No.176, corresponding to L.R. dag No.655, was purchased by the petitioner with the financial help from his father and a separate plan had been annexed to the said purchase deed dated October 25, 2021. The plot was specifically demarcated in the deed. The fact remained that there was no common boundary between the lands of the respective parties and the parties were neither adjacent owners nor co-sharers. 7. Mr. Roy, further submitted that the specific case of the preemptor was that the strip of land, which was the subject-matter of the preemption application was in the western side of the land of the preemptor. The schedule of the preemption application also indicated that the plot of land of the preemptor was on the eastern side of the suit land. 8. Pointing to the application for local investigation, Mr. Roy submitted that only because the preemptee/petitioner had denied the claim of contiguity, the same could not be a ground for the learned court to allow local investigation. The issue involved in the preemption application was whether the property sold to the petitioner was situated adjacent to the property of the preemptor or not. Such issue would have to be decided at the time of trial and onus was on the preemptor to prove on the basis of his deeds and other documents that the suit land was adjacent to the land owned by the preemptor. 9. Contiguous ownership had to be decided on evidence. Such issue would have to be decided at the time of trial and onus was on the preemptor to prove on the basis of his deeds and other documents that the suit land was adjacent to the land owned by the preemptor. 9. Contiguous ownership had to be decided on evidence. The learned court could not have allowed local investigation for such purpose as the same would amount to fishing out evidence. 10. Referring to the provisions of Order 26, Rule 9 of the Code of Civil Procedure, Mr. Roy submitted that the said provision could be pressed into action only when the court required any dispute or doubt to be elucidated. This is not a case of boundary dispute in which parties were claiming right, title and interest over a particular strip of land and without local investigation, the said adjudication would not be possible by the learned court. 11. This is a case where the preemptor/opposite party No.1 would have to prove contiguous ownership on the basis of deeds, other documents, mouza map and evidence. 12. Mr. Sukanta Chakraborty, learned Advocate appearing on behalf of the preemptor submitted that whether the preemptor was the owner of an adjacent plot of land to the suit plot, would have to be decided by local investigation. The position of the respective lands and the local features were required to be determined by an expert. It would not be possible for the court to decide without such report, whether the lands were actually situated adjacent to each other or not. 13. Having heard learned Advocates for the respective parties, this court finds that the specific case of the preemptor was that the preemptor was an adjacent owner of the plot of land sold to the opposite party No.1. The pleading is quoted below :- "10. That the petitioner claimed for pre-emption of the suit land on the ground of adjacent owner of the land in suit which is been transferred by the profroma-opposite party No.2 and he also made a party to the present suit and no relief is sought for against him but the suit be heard in his presence." 14. The schedule of the preemptor application is quoted below :- Schedule All that piece and parcel of 360 sq. ft. The schedule of the preemptor application is quoted below :- Schedule All that piece and parcel of 360 sq. ft. or 0.825 decimals danga land of mouza :Amtala, Touzi No.395, J.L. No.73, R.S. dag No.176, Khatian No.7674, L.R. Dag No.655, Danga land under A.D.S.R. and P.S. Bishnupur, District 24 Parganas (south), butted and bounded : On the north : Subrata Sarkar On the south : Sutapa Ghetu On the East : P.S. Dag No.177, L.R. Dag No.656 and House & land of the petitioner: On the west : Village road. 15. The points for local investigation are quoted below :- a) That Ld. Commissioner will visit the locale i.e. the suit property and will ascertain whether the suit property is situated just adjacent western side of the property as owned by the petitioner, tallying with the title deeds and annexed plans of the deeds of the petitioner and the opposite party no.1 b) To ascertain whether there is any other property in between the suit property and the property of the petitioner. c) Local feature if any, as pointed out during commission work. 16. A local investigation on the points as mentioned hereinabove, would amount to fishing out evidence and aiding the preemptor to prove his case. 17. It was the specific case of the preemptor that the preemptor was an adjacent owner, whose property was situated on the eastern side of the suit plot, that is, the suit property was on the western side of the property of the preemptor's land. Both the parties allege to have purchased their respective lands on the basis of their deeds, with specific boundaries and demarcation. The preemptor is under obligation to prove his case of contiguous ownership on the basis of relevant evidence. 18. By allowing the application for local investigation, in effect, the learned court had practically provided the mechanism on the basis of which the preemption application could be proved by the preemptor. The only point for local investigation was to ascertain whether the plots were adjacent to each other. This is not the scope of an application for local investigation. Contiguity, will have to be proved by the preemptor who sought to preempt the sale of the land to the petitioner. The local features of the plots would hardly be of any relevance or significance in the proceeding. 19. This is not the scope of an application for local investigation. Contiguity, will have to be proved by the preemptor who sought to preempt the sale of the land to the petitioner. The local features of the plots would hardly be of any relevance or significance in the proceeding. 19. The local investigation would only aid the preemptor to prove his own case. The result of the preemption application would depend on the proof that the preemptor was a contiguous owner. He was required to prove the same through his title deeds, record of rights, mouza map, etc. 20. The object of local investigation is to enable the court to elucidate any dispute with regard to the identity of the lands or when there was a boundary dispute and the exact extent of the land enjoyed by the parties could not be ascertained on the basis of the respective deeds and other related documents. In the instant case, the preemptor would have to simply prove that he was an adjacent owner and such proof could easily be accomplished on the basis of the respective title deeds, the mouza map, the record of right, the land plan annexed to the deeds, etc. 21. Under such circumstances, the order impugned is set aside. 22. The revisional application is allowed. 23. There will be no order as to costs. 24. Parties are directed to act on the server copy of this judgment.