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2024 DIGILAW 144 (CAL)

Amaresh Panda v. Probodh Kr. Panda

2024-01-22

PRASENJIT BISWAS

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JUDGMENT Prasenjit Biswas, J. 1. This instant revisional application filed under Article 227 of the Constitution of India emanates from the judgment and order dated 18.03.2006 passed by the learned Additional District Judge, First Court at Purulia in connection with Misc. Appeal No. 13 of 2004 which arose out of the order/judgment dated 06.02.2004 passed by the Learned Civil Judge (Junior Division), Additional Court, Purulia in connection with Misc. Case No. 94 of 1994. 2. Feeling aggrieved and dissatisfied with the said judgments and orders the present petitioners have preferred this instant application. 3. The petitioner No. 1 (since deceased) filed a case under Section 8 of the West Bengal Land Reforms Act, 1955 against the pre-emptee/predecessor-ininterest of the present petitioner no(s). 1(a) and 1(b) in respect of land recorded in R.S. Khatian No. 69 of Mouza Paika, District Purulia. It is undisputed that the said land originally belonged to one Gangadhar Panda. The said Gangadhar Panda died in the year 1970 leaving behind his three sons namely, Banshidhar Panda (since deceased), Sanatan Panda, Mahadev Panda (opposite party No. 2 herein) and three daughters namely Ananda Debi, Biraj Debi, Srirupa Debi and widow Smt. Bala Debi. On the death of said Gangadhar Panda all his properties including subject land devolved upon his aforesaid three sons, three daughters and widow having 1/7th share each therein. Thereafter, the said 3 daughters and widow of late Gangadhar Panda transferred their respective shares i.e. 4/7th undivided share in the scheduled property in favour of two sons of late Gangadhar Panda i.e. Banshidhar and Mahadev by dint of registered deed of gift dated 9.07.1985 and gave them possession. 4. Thereafter dispute started when the predecessor-in-interest of the present petitioners gave out in the village in the 3rd week of July, 1994 that he has purchased a portion of the above mentioned plot of land under R.S. Khatian No. 69 from the opposite party No. 2 (herein) by virtue of a registered deed of sale dated 28.06.1994. 4. Thereafter dispute started when the predecessor-in-interest of the present petitioners gave out in the village in the 3rd week of July, 1994 that he has purchased a portion of the above mentioned plot of land under R.S. Khatian No. 69 from the opposite party No. 2 (herein) by virtue of a registered deed of sale dated 28.06.1994. The preemptor specifically took the point that no notice of the registration of the deed executed by opposite party No. 2 herein Mahadev Panda was served upon them under Section 5 of the West Bengal Land Reforms Act and the preemptor after procuring the certified copy of the deed came to learn for the first time that the opposite party No. 2 Mahadev Panda sold the subject property to the predecessor-in-interest of the present petitioner by virtue of a registered deed of sale dated 28.06.1994. Finding no other alternative, the preemptor/the predecessor-in-interest of the opposite party Nos. 1(a) to 1(i) filed an application before the Trial Court under Section 8 of the West Bengal Land Reforms Act with a prayer for getting the order of preemption in respect of the case property. Preemptors/petitioners (herein) entered appearance before the Trial Court and contested the case by taking plea that Mahadev Panda (O.P No. 2 herein) transferred his entire share to the present petitioners and as there is no cosharership, order of preemption in respect of case land cannot be passed in favour of the preemptor in view of the amended provision of Sections 2, 6 and 7 of the West Bengal L.R. Act. It is specifically contended by the learned Counsel appearing on behalf of the present petitioners that the First Appellate Court has failed to appreciate the true spirit of Section 8 of the W.B.L.R Act and both the Courts below passed the order illegally and with material irregularity. According to the present petitioners learned Courts below failed to appreciate the position of law in its proper perspective. According to him if demarcated and entire share of a property has been sold out in the case property ground of cosharership does not lie. 5. It is further submitted by the learned Counsel appearing on behalf of the present petitioners that the preemptor in the preemption proceeding in the Courts below did not make any specific statement in support of their claim despite that Court below passed order in favour of the preemptor. 5. It is further submitted by the learned Counsel appearing on behalf of the present petitioners that the preemptor in the preemption proceeding in the Courts below did not make any specific statement in support of their claim despite that Court below passed order in favour of the preemptor. 6. Learned Counsel appearing on behalf of the opposite party No. 1 assailed that there is no illegality in the orders passed by both the Courts below. It is stated by the opposite party No. 1 that the property in question had never been partitioned amongst the original cosharers by metes and bounds. Accordingly, as a cosharer he has right to get order of preemption under the Act and the learned Trial Court did so. As there is no illegality in the impugned order passed by the Trial Court, the First Appellate Court did not interfere in the observations made by the said Trial Court. 7. I have gone through the impugned judgments passed by both the learned Courts below and also considered the submissions advanced on behalf of the parties. As per Section 2(6) of the W.B.L.R Act, 1955 “cosharer of a raiyat in a plot of land” means a person, other than the raiyat who has an undemarcated interest in the plot of land along with raiyat. The right of preemption of a cosharer is an incident of property attached to the land itself. It is some sort of encumbrance carrying with the land which can be enforced by or against the coowner of the land. The main object behind the right of preemption, either based on custom or statutory law is to prevent intrusion of a stranger into the family holding or property. A cosharer under the law of preemption gives the right of a cosharer to file an application to get an order under the Act if the share of a property in question has been transferred to a stranger to the family holding. 8. In the case at hand, it is undisputed that Gangadhar Panda, the father of the preemptor Banshidhar and O.P No. 2 (herein) Mahadev was the recorded tenant in respect of R.S Khatian No. 69 and since after his death property in question was devolved upon his three sons, three daughters and his wife who acquired undivided right, title and interest therein. All the heirs of the said Gangadhar became cosharers in respect of the suit property jointly and there is no proof that the property had been partitioned by metes and bounds. So, it can safely be hold that the case property is joint/ezmali property of the heirs of Gangadhar and it can also be said that opposite parties no(s). 1 (a) to 1(i) are nothing but strangers. It has further been established from the materials on record that there is no registered deed of partition between the cosharers/heirs of the said Gangadhar. There is no doubt on the position of law that if a statute prohibits partition of a particular class of property except by way of registered document, then unless partition is effected by registered deed there can be no partition in the eye of law. If there is an oral partition and if cosharership remains in occupation of a particular demarcated portion by dint of such mutual arrangement, for such arrangement their undemarkated interest in the plot is not extinguished. In respect of this case the heirs/legal representatives of the deceased remain cosharers so long there is no registered deed of partition notwithstanding the fact that each of the sharer is in occupation of a particular demarcated portion. 9. In view of the discussions made above it can safely be held that the preemptor Banshidhar rightly proved that he is the cosharer of a raiyat in the plot of land in question and the suit plot had never been partitioned amongst the cosharers and more to say it is a joint/ejmali property of the cosharers. One of the cosharers namely Mahadev Panda (opposite party No. 2 herein) sold away a portion or share of the case plot of land in favour of predecessor-in-interest of the present petitioners namely, Kishori Panda on the strength of Exhibit 2 who is nothing but a stranger to the plot of land in question. In the present case there is no partition amongst the cosharers in accordance with the provisions contained in Section 14 of the West Bengal Land Reforms Act and both the Courts below have come to a correct conclusion in this regard. 10. Therefore, on consideration of both the judgments I do not find any reason to interfere with the impugned judgments as there is no illegality and material irregularity in the said judgments. 10. Therefore, on consideration of both the judgments I do not find any reason to interfere with the impugned judgments as there is no illegality and material irregularity in the said judgments. Accordingly, the present petitioners are not entitled to any relief as prayed for. 11. Accordingly, C.O. being No. 1345 of 2007 is hereby dismissed on contest and the same is disposed of. 12. Interim order if any stand vacated. 13. There will be no order as to costs. 14. Let the LCR be sent down to the Court below at once. Urgent Photostat certified copy of this order, if applied for, be given to the parties on payment of requisite fees.