Calcutta High Court (Appellete Side)
Arindam Joardar vs Tarun Raha & Anr on 3 March, 2016
Author: Soumen Sen
Bench: Soumen Sen
47 03.03.16 C.O. 920 of 2015
akd
Arindam Joardar
Vs.
Tarun Raha & Anr.
--------
Mr. Partha Pratim Roy, Mr. Sarbanandya Sanyal.
... for the petitioner.
Mr. Bidyut Banerjee, Ms. Shila Sarkar.
... for the opposite parties.
This revisional application is directed against an order dated 4th December, 2014 passed by the learned District Judge, Murshidabad, in Miscellaneous Appeal No. 58 of 2001 arising out of an order dated 12th July, 2011 passed by the learned Civil Judge (Junior Division), Additional Court, Berhampore, Murshidabad in connection with an application filed under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the "said Act").
The Appellate Court affirmed the judgement of the Trial Court.
The grounds of challenge in this revisional application against both the orders are that both the Courts below have failed to appreciate that the opposite party no. 1 fhas sold his share in the plot of land to a stranger without offering the said share for sale to the co-sharer/opposite parties.
The petitioner has proceeded on the basis that the opposite party no. 1 is a co-sharer of the plot of land and in terms of Section 8 sub-section (1) if a co- sharer wants to sell a portion or share of the land, he is required to first offer it for sale to the other co- owners failing which he could sell it to a stranger. The petitioner based his cause of action on a transfer being made by one of his brothers on the ground that he is a co-sharer of plot in question.
One Mr. Ashit Barani Joardar was the original owner of a plot of land measuring about 335 decimal. During his lifetime, he executed a deed of gift by which 112 decimal of land each was given to three persons, namely, Arindam Joardar, Tapan Kumar Joardar and Arghadeep Chowdhury. After the execution of the deed of gift, Arghadeep Chowdhury sold his share as owner 112 decimal to the opposite party no. 1 and thereafter the said opposite party sold his share to opposite party no. 2. These transfers are sought to be challenged by the petitioner by filing an application under Section 8 of the West Bengal Land Reforms Act claiming preemption.
Learned Counsel for the petitioner submits that Section 8 of the said Act makes it clear that if a portion or share of a plot of a raiyat is transferred to any person other than a co-sharer of a raiyats in the plot of land, a co-sharer may within three months of the service of the notice given under sub-section (5) of Section 5 of the Registration Act, 1908 be entitled to file an application under Section 8 of the said Act for preemption.
It is submitted that the deed of gift relied upon the courts below would show that an undemarcated portion of land was allotted to three persons and if in absence of having the property demarcated a portion of the land has been allotted to the petitioner, then the right of the other sons of the doner would be entitled to claim preemption on the ground of co- ownership, which remains and not effected.
Mr. Bidyut Banerjee, learned Senior Counsel appearing for the opposite parties, has referred to a decision in the case of Sm Labanya Bala Debi vs. Sm. Parul Bala Debi & ors. reported in 77 CWN 272 and submitted that co-ownership and/or joint possession by the parties are the basic foundation of a suit for partition and having regard to the fact that in the instant case each of the three sons of the doner was given exclusive demarcated property. None of them has claimed to be a co-owner of the other; otherwise the deed of gift fails.
This Court is in agreement with the submissions made by Mr. Banerjee that on the execution of the deed of gift and having regard to the fact that three sons have received their three separate demarcated portion in the mother plot, they are enjoying the said property as exclusive owners. None of them could claim to be co-owner of the other.
The fact shorn of details are that one Ashit Barani Jowarddar was the original owner of a plot of land measuring about 335 decimals in Plot No. 216. During her lifetime she executed a deed of gift dated 12th September, 1990 to the extent of 1.12 acre of land each in favour of three persons, namely Arindam Joardar, Tapan Kumar Joardar and Arghadeep Chowdhury. Under the deed of gift Arghadeep Chowdhury was given 1.12 acre of land which is mentioned as 'kha' schedule in the said deed in a specific demarcated way. The said Arghadeep Chowdhury while in possession of his entire gifted property measuring 1.12 acre of land made transfer in favour of the opposite party no. 1 on 4th January, 2002 for a valuable consideration of Rs,2,00,000/- and gave him possession.
The petitioner, who is also a donee in respect of a separate schedule property, has filed the application for preemption challenging the said transfer and he claimed for preemption as co-sharer and continues to be land owner of the schedule property mentioned before the Trial Court under Sections 8 and 9 of the West Bengal Land Reforms Act.
The learned Trial Court on consideration of the materials on record rejected the said application for preemption on an appeal being preferred. On an appeal being preferred the Appellate Court affirmed the said decision.
The contention before the Appellate Court appears to be that Ashit Barani Jowarddar was the exclusive owner and possessor o;f the suit plot no. 216 measuring 3.35 acre of land and while she was in possession in 16 annas ownership executed a deed of gift in favour of the petitioner as well as other two persons on 2nd September, 1990 mentioning three schedule in the deed of gift and by virtue of the said deed, the petitioner got 1.1 acre of land, which has been mentioned in the 'g' schedule of the said deed and Arghadeep Chowdhury, vendor of the opposite party no. 1, got 1.12 acre in the suit plot, which has been described in the 'kha' schedule in the said deed. Arghadeep Chowdhury sold his share in the suit plot in favour of the opposite party no. 1 by registered deed of sale on 4th January, 2002.
The petitioner contended that being a co-sharer and alternatively an adjoining land-owner of the suit property exercised his right of preemption over the suit property.
The learned Trial Court dismissed the application of the petitioner on the ground that since Arghadeep Chowdhury has transferred his entire share in the suit plot, the right of preemption does not exist in view of the law laid down by the Court in Kinkar Mahato vs. Sahan Mahata reported in 2005 (3) ICC 5.
The appellant appears to have urged before the Appellate Court that the object of Section 8 of the West Bengal Land Reforms Act is to secure consolidation of a plot of land by giving right of preemption to a co-sharer in the plot of land or to a bargadar or to any raiyat possessiong land adjoining such plot of land as per Section 8 of the said Act and after amendment it would be a portion of a share of a plot of land of raiyat is transferred, the right of preemption of the co-sharer of adjoining land owner / bargadar would arise.
On the other hand, the opposite party contended that since Arghadeep Chowdhury has sold his entire share in the suit plot, he has got specific demarcated portion of land described in the schedule 'kha' of the deed of gift, which has since been sold in favour of the opposite party no. 1. In view of the decision in Kinkar Mahato (supra) this application is not maintainable. It was further contended that the opposite party was not co-sharer because specific portion of a suit plot was given in favour of Arghadeep Chowdhury by deed of gift.
The gift deed dated 12th September, 1990 would show that Ashit Barani Jowarddar made deed of gift in favour of Tapan Kumar Jowarddar, Arghadeep Chowdhury and Goutam Mondal mentioning 'ka', 'kha' and 'ga' in the said deed respectively, and, Arghadeep Chowdhury got 112 decimals of land which has been described in the 'kha' schedule in the said deed and the said Arghadeep Chowdhury transferred 112 decimals of land in favour of opposite party no. 1 dated 4th January, 2002 which is the subject matter of preemption.
Mr. Partha Pratim Roy, the learned counsel appearing on behalf of the petitioner, submits that in view of the recent decision of this Court in the case of Biswanath Sarkar & Anr. vs. Sunit Kumar Saha reported at 2013 (3) WBLR 271 (Cal.) and in the case of Sajhan Ali vs. Sk. Saber Ali reported at 2015 (3) CHN 689 (Cal.), inasmuch as there being no clear demarcation of the suit plot the said sale in favour of the stranger person is required to be set aside.
In view of the aforesaid two decisions cited by Mr. Roy on an interpretation of the conjunction "or" it was held that preemption application is maintainable even if the entire share or entire portion in a plot of land is transferred by a raiyat to other person. The said interpretation has been dealt in an earlier decision of this Court in Kinkar Mahato's case (supra). The subsequent decision has taken note of the earlier decision and discussed on the interpretation of the said conjunction "or".
In Labanya Bala Debi's case (supra) cited by Mr. Bidyut Banerjee, the concept of ownership was discussed very elaborately in paragraph 5 therein; the relevant portion whereof is - This is a case where a common owner has transferred specific portions out of the entire plot with defined areas and boundaries to different purchasers on different dates although mentioning his proportionate share with reference to the entire jama.
The Trial Court and the Appellate Court have considered the deed of gift and the evidence adduced by the parties. Although, the property may not have been butted and bounded but there are clear indications in the deed of gift which says that specified demarcated portion has been allotted to three persons and the said three persons are in exclusive occupation of the respective areas allotted to them.
There was no evidence on record to show that notwithstanding the deed of gift mentioning three separate schedule of property gifted to the three sons, the said properties remained as joint and are in joint possession of the said properties.
A property can be identified either by demarcation or by any other specific description. The deed of gift clearly describes the said property and it becomes effective as soon as the three sons accepted the gift and they remain in exclusive possession of their respective portion of the suit plot.
The learned counsel for the petitioner would not dispute that if a demarcated portion is sold, then the petitioner would not have any right to claim preemption. In the instant case, it is not required to consider the decisions cited with regard to the interpretation of Section 8 of the West Bengal Land Reforms Act as to whether it relates to entire portion or share in the property as it can be found from evidence that the demarcated portion under the exclusive occupation of Arghadeep Chowdhury has been sold in favour of the opposite party no. 1.
Under such circumstances, this Court finds no reason to interfere with the concurrent findings of fact arrived at by the Courts of law. The judgement does not suffer from any infirmity.
This revisional application is thus dismissed. There will be no order as to costs.
(SOUMEN SEN, J.)