Calcutta High Court (Appellete Side)
Smt. Sandhya Rani Kuila vs Ratan Chandra Ghosh & Ors on 27 January, 2021
Author: Shampa Sarkar
Bench: Shampa Sarkar
S/L 27 27.01.2021Court. No. 19
GB C.O. 93 of 2021 Smt. Sandhya Rani Kuila Vs. Ratan Chandra Ghosh & Ors.
(Through Video Conference) Mr. Jayanta Das, Ms. Saumita Ghosh.
... for the Petitioner.
Mr. Rabindranath Mahato.
... for the Opposite Party No.1.
The point raised in this revisional application is as to whether the learned Additional District Judge, 6th Court at Paschim Medinipur erred in passing the order dated October 15, 2020 in Misc. Appeal No.8 of 2011, thereby affirming the order dated December 22, 2010, passed by the learned Civil Judge (Junior Division), 2nd Court at Paschim Medinipur in J. Misc. Case No.56 of 1986.
It appears from the records that both the courts below came to the conclusion that when the preemptee had purchased the entire 5 decimal of land of the suit plot from Mrigen and Gobinda, the right of preemption did not lie either on the ground of co-sharership or on the ground of vicinage.
The learned advocate for the petitioner refers to the decision of this court (Jalpaiguri Bench) passed in C.O. No.21 of 2019 dated August 29, 2019, in which a point has 2 been referred for decision of the Larger Bench on this issue as hereunder:
"Whether an application for pre-
emption is maintainable under Section 8 of the West Bengal Land Reforms Act, 1955, in the event a raiyat transfers her/his entire portion or share in a plot of land to a person other than a co-sharer."
Mr. Mahato, learned advocate appearing on behalf of the preemptee submits that the issue involved in this case is not covered by the reference and this Court has to determine whether the petitioner was a co-sharer or an adjoining owner.
Having gone through the orders impugned before this Court, the Court finds that the learned lower appellate court has held that the petitioner was neither a co-sharer nor a contiguous owner for the following reason:-
"Here in this case the pre-emptor Sandhya Rani Kuila is neither a co-sharer nor an adjoining land owner along with the original owner Sachidananda Adhikary. Since the pre-emptor has purchased a well demarcated portion by 2 registered sale deeds, he cannot be a co-sharer with the original owner Sachdananda Adhikary. From Exbt. 3 it cannot be said that the pre-emptor Sandhya Rani Kuila is an adjoining owner of the pre-emptee. The pre-emptee has purchased the entire 5 decimal land of the suit plot from Mrigen and Gobinda and as such the 3 right of the pre-emptor for pre-emption of the suit land does not lie on the ground of co- sharer as well as on the ground of vicinage. In my humble view, the pre-emptor Sandhya Rani Kuila is neither a co-sharer nor an adjoining land owner in respect of suit plot No.362 and as the entire plot of land has been transferred by Mrigen and Gobinda, the pre- emptor has no right to pre-empt the suit land as prayed for."
Prima facie, I am of the view that the point has already been referred as the learned courts below held that preemption would not be available either on the ground of co-sharership or on the ground of contiguous ownership if the entire demarcated portion is sold. The petitioner filed an application for preemption on the ground of co-sharership and on the ground of vicinage.
As such the point needs consideration by the Larger Bench.
The preemptee is restrained from creating any third party interest in respect of the property in question till the disposal of the revisional application.
Let this matter be heard after the issue is being decided by the Larger Bench.
(Shampa Sarkar, J.)