Calcutta High Court (Appellete Side)
For The vs Ramkrishna Mondal & Ors on 6 March, 2015
Author: Arijit Banerjee
Bench: Arijit Banerjee
1 06-03-15Item No. 3
aks court no. 31 C.O. 2820 of 2013 Mr. Bhaskar Ghosh Mr. Ramprokash Banerjee Mr. Bidyut Baran Biswas .... For the petitioner.
Mr. Sourav Chaudhuri ... for the opposite party.
The principal opposite party herein filed Pre. Misc. Case No. 22 of 2009 before the learned Civil Judge (Junior Division), 2nd Court, Krishnagar for asserting his right of pre-emption in respect of the suit plot. Learned Judge recorded in his order dated 21st September, 2010 that the opposite party before him has admitted the fact the petitioner before him being the principal opposite party in this revisional application is a co- sharer in respect of the suit plot. However, the learned Judge held that the transaction was not an outright sale but in fact was a loan in substance. Sanjit Chakraborty, one of the co- owners of the suit plot, transferred his share to Amitava Saha against the loan but the same was re-conveyed to Sanjit Chakraborty during the pendency of the pre-emption application. Learned court relied on an observation of this court in a case reported in 1987(1) CLJ 137 to the effect that the right to pre-empt must be alive at the time of disputed sale, during institution of the proceeding and till the final order and came to a finding that the right of pre-emption in favour of Dayal Chakraborty, the pre-emptor, does not survive as the suit property had been re-conveyed back to Sanjit Chakraborty. 2 Accordingly, the learned Judge dismissed the pre-emption application.
The pre-emptor, Dayal Chakraborty, filed Misc. Appeal No. 69 of 2010 before the Additional District Judge, (2nd Court), Nadia. Learned appellate court referred to Section 9(2) of the West Bengal Land Reforms Act, 1955 which provides that when any person acquires the right, title and interest of the transferee in such plot of land by succession or otherwise, the right, title and interest acquired by him shall be subject to the right conferred by sub-section 1 of Section 8 on a co-sharer of a raiyat in a plot of land or a raiyat possessing the land adjoining the plot of land. Learned appellate court held that even if the suit plot was re-conveyed back to Sanjit Chakraborty, he took it subject to the right of pre-emption under Section 8(1) of the 1955 Act that had accrued in favour of Dayal. In this connection, learned appellate court relied on a decision of this court in the case of Basanti Bala Sarkar Vs. Ramkrishna Mondal & Ors., reported in 1985(II) CHN 232. Learned appellate court allowed the appeal and reversed the order of the learned trial Judge. Being aggrieved the petitioner is before this court by way of the instant revisional application.
Appearing on behalf of the petitioner, learned counsel argued that the principal opposite party, i.e., Dayal is not a co- sharer in respect of the suit plot. He produced copies of record of rights to establish his point and submitted that two Khatians may contain the same Dag number but that does not mean that the plots are the same. In this connection, the learned counsel 3 relied on a decision of this court in the case of Bnagsodhar Roy Vs. Mrs. Puspa Mondal & Others, reported in (2014)1 WBLR 907 . Learned counsel vociferously argued that since Dayal is not a co-sharer in respect of the suit plot, no question of Dayal exercising any right of pre-emption can or does arise.
Appearing on behalf of the principal opposite party, i.e. Dayal, learned counsel submitted that the learned appellate court has rightly reversed the learned trial court's order. The learned trial court did not take into consideration Section 9(2) of the West Bengal Land Reforms Act, 1955. He submitted that once a right of pre-emption accrues, the same cannot be defeated by a subsequent transfer by the transferee of the suit plot. The subsequent transferee takes subject to the right of pre- emption. In this connection, learned counsel relied on a decision of Basanti Bala Sarkar Vs. Ramkrishna Mondal & Ors., reported in 1985 (II) CHN 232 wherein this court held that in the absence of any limiting factor, the term 'otherwise' in Section 9(2) of the West Bengal Land Reforms Act, 1955 will include a co-sharer who acquires the title of the transferee by re-purchase.
I have considered the rival contentions of the parties. In my opinion, learned appellate court was right in holding that Dayal's right of pre-emption survived even though the suit plot might have been re-conveyed back to Sanjit. Learned appellate court correctly applied Section 9(2) of the West Bengal Lands Reforms Act, 1955 and the ratio of this court's decision in Basanti Bala Sarkar (Supra). Learned trial court had erred in holding that Dayayl's right of pre-emption lapsed upon the suit 4 property being re-conveyed back to Sanjit. This error was rightly corrected by the learned appellate court. As regards the contention of the petitioner that Dayal is not a co-sharer in respect of the suit plot, I am not inclined to go into such factual dispute at this stage. This issue was not agitated either before the learned trial court or before the learned appellate court. In fact, learned trial court records in its judgement that it is admitted by the opposite parties before that court that Dayal is a co-sharer in respect of the suit plot. In view of such admission, I am inclined to think that the petitioner is raising this issue as an after-thought and I find no justification of going into that issue. In any event, this court while exercising jurisdiction under Article 227 of the Constitution of India does not function as a fact-finding court.
I see no infirmity in the order impugned in this revisional application. I am in agreement with the reasoning and the conclusion of the order impugned.
Accordingly, this revisional application fails and is dismissed.
Certified copy of this order, if applied for, be supplied to the parties on priority basis.
(Arijit Banerjee, J.)