Calcutta High Court (Appellete Side)
Ajit Kumar Sardar vs Smt. Rupa Mondal Alias Rupa Bachhar on 15 April, 2016
IN THE HIGH COURT AT CULCUTTA
(CIVIL REVISIONAL JURISDICTION)
C.O. No. 2169 of 2008
Ajit Kumar Sardar
-Vs.-
Smt. Rupa Mondal alias Rupa Bachhar
Present : The Hon'ble Mr. Justice Siddhartha Chattopadhyay
For the Petitioners : Mr. Bidyut Kumar Banerjee,
Ms. Shila Sarkar,
Ms. Priyanka Mandal.
For the Opposite Parties : Mr. Gopal Chandra Ghosh,
Ms. Jayeta Kaunda.
Heard On : 10.02.2016, 26.02.2016.
C.A.V. On : 26.02.2016.
Judgment Delivered On : 15.04.2016.
Siddhartha Chattopadhyay, J.:
This instant revisional application emanates from the Judgment and Order dated 30th May, 2008 passed by the learned Additional District Judge, 2nd Court at Barasat in connection with Misc. Appeal No. 197 of 1996. In the said impugned order learned First Appellate Court has set aside the order dated 16th July, 1996 passed by the learned Civil Judge (Junior Division), 3rd Court at Basirhat. The Trial Court has dismissed the application under Section 8 of W.B.L.R. Act. The said judgment has been set aside by the First Appellate Court holding that the present opposite party is entitled to pre- empt the case land as prayed for in the petition under Section 8 of W.B.L.R. Act.
2. According to the present petitioner, learned First Appellate Court failed to appreciate the position of law and could not consider his claim as a contiguous land owner. It is also further contended that opposite party had been in possession in respect of a defined and demarcated portion of the case land so he could not be treated as contiguous owner particularly when partition took place long back.
3. At the time of hearing, learned Counsel appearing on behalf of the opposite party contended that the order of the learned First Appellate Court is absolutely justified and said Court has taken care of every nitty-gritty of the said law and discussed everything its proper perspectives and the finding of the learned First Appellate Court does not warrant any interference.
4. Factual aspect needs to be re-stated. The case of the pre-emptor in brief is such that suit property originally belonged to one Sashi Bhusan Sardar, who has purchased 26½ decimals of the said land including five decimals of land of the case plot No. 925 appertaining to a Khatian No.149 from a co-sharer namely Bharat Chandra by registered deed dated 25.01.1968. Sashi Bhusan Sardar died long back leaving behind his wife Gurudashi and daughter Kalidashi who stepped into the shoes of their predecessor. Thereafter, Gurudashi gifted 1.22 acre of land out of her share by a registered deed dated 04.01.1990 to Rupa Mondal and by another deed dated 17.02.1989 she had also gifted 0.26 decimals of land to said Rupa Mondal and on the basis of those deed of gifts the present opposite party is in possession. The present petitioner Ajit Kumar Sardar is a stranger to the case land and he had acquired 0.66 decimals of land from Kalidashi Mondal by registered deed dated 27.07.1990. The pre-emptor came to know about such transfer on 01.08.1990 from the villagers and after obtaining certified copy of the said has filed the case on the ground that the suit land is an ejmali property and it was never partitioned by metes and bounds and he wanted to pre-empt the case land as being co-sharer and also as an adjoining land owner.
5. Opposite Party (present petitioner) contested the case by filing written statement in which categorically denied all the material allegations levelled against him. He contended that he used to cultivate the case land as 'Bargadar' under Kalidashi and so he is entitled to get the said land. His further claim is such he has also land adjoining the case land.
6. I have gone through the judgment passed by the learned Trial Court as well as the First Appellate Court. Both the Courts below have made elaborate discussions in their respective judgments and came to the finding that the present petitioner is not a 'Bargadar' in respect of the suit property. Although I must say that the First Appellate Court (vide page 11 of certified copy paragraph 2) held "Considering those materials, it was held by the Court below rightly that the respondent is a 'Bargadar' in respect of the case land accordingly, the judgement passed by the Court below should not be interfered with."
7. In fact, that is a typographical mistake obviously on the part of the learned First Appellate Court because the Trial Court held the respondent is not a 'Bargadar'. Discussion made by the First Appellate Court also speaks that said respondent was not a 'Bargadar'. Both the Courts below had relied on the evidence and documents as well. So their finding on this issue cannot be disturbed. This revisional Court is not a Court of appeal in its strict sense. The scope of re-appreciation of evidence is very limited. It seems to me that both the Court below had come to a correct conclusion that the present petitioner is not at all a 'Bargadar' in respect of the said land.
8. Learned Trial Court had straight way dismissed the pre-emption case showing the logic behind it. The learned First Appellate Court on the contrary held "Here in this case, the Court below wrongly held that the petitioner is not a co-sharer and on the contrary, he held that the respondent is a 'Bargadar' in respect of the case land. The decision arrived at by the Court below is such that before amendment of W.B.L.R. Act, it was justified but after the amendment of the Act. The position of land has been changed which should be taken into consideration."
9. Thereafter the First Appellate Court had some observations and came to the conclusion that the application for pre-emption is maintainable and that the Court below wrongly held that the applicant is not entitled to get the land pre-empted.
10. From the rival submission of the parties it seems to me that this Court is called upon to answer:- (1) Whether an application for pre-emption is maintainable when the entire share or a portion of a plot of land is transferred by a raiyat or can only be maintained if a portion of a share of a plot of land is transferred by a raiyat to a third party other than the co- sharer;
(2) Whether the pre-emption is available to a purchaser of a well demarcated portion from an admitted owner who subsequently sold transferred the remaining portion to a third party on the ground of co- sharership;
11. It is perhaps needless to say that Section 8 W.B.L.R. Act deals with the right of purchase by a co-sharer or a contiguous plot owner and 'Bargadar' if a portion or share of a plot of land of raiyat is transferred to any other person i.e. a co-sharer of a raiyat in plot of land. Such right is conferred upon three categories of persons namely 'Bargadar', co-sharer of raiyat in a plot of land and any raiyat possessing land adjoining to such plot of land.
12. The legislature in its wisdom has incorporated the word 'or' between the words 'share and 'portion' which indicates that if a raiyat transfers his entire portion or share in a plot of land to a person other than the co-sharer of a raiyat, the pre-emption is permissible. Therefore, the application for pre-emption is maintainable even when a co-sharer has divested his entire share or portion of plot of land to a third person other than the raiyat. Factual aspects of this case speaks after the death of Sashi Bhusan his wife Gurudashi and daughter Kalidashi became the co-sharer and Gurudashi gifted 1.22 acre of land out of her share by a registered deed of gift dated 04.01.1990 and to the present opposite party by a registered deed of gift on 04.01.1990 and by another deed dated 17.02.1989 to the present opposite party.
13. In Sk. Samser Ali & Ors. -Vs.- Serina Bibi & Anr. reported in (2012) 2 CHN 694 and Subal Mondal -Vs.- Gopal Chandra Mondal reported in 2014 (1) CHN Cal 706, our High Court held that if the original owner has sold out demarcated portion of a land to the pre-emptor and subsequently sold the remaining portion to a pre-emptee, the pre-emptor does not acquire any right of pre-emption. There is no clinching evidence led by the present petitioner before the Court below which can inspire confidence. There is nothing on record that to establish his claim as a contiguous tenant, he has produced mouza map and site plan. Therefore, in my view, the petitioner has also failed to establish his claim of pre-emption on the ground of vicinage.
14. Therefore, I have no hesitation to set aside the judgment dated 30th May, 2008 passed by the learned Additional District Judge, 2nd Court at Barasat in connection with Misc. Appeal No. 197 of 1996. The impugned order passed by the learned Civil Judge, (Junior Division) vide order dated 16th July, 1996, is hereby affirmed on different ground.
15. Therefore, the civil revisional application merits rejection. There shall be no order as to costs.
16. Let a copy of this order be sent to the learned Court below for his information and taking necessary action in accordance with law.
17. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SIDDHARTHA CHATTOPADHYAY, J.) A.F.R/N.A.F.R.