Calcutta High Court (Appellete Side)
Sanjay Halder & Ors vs Budhan Rajak on 30 March, 2016
IN THE HIGH COURT AT CULCUTTA
(CIVIL REVISIONAL JURISDICTION)
C.O. No. 2979 of 2015
Sanjay Halder & Ors.
-Vs.-
Budhan Rajak
Present : The Hon'ble Mr. Justice Siddhartha Chattopadhyay
For the Petitioners : Mr. Partha Pratim Roy,
Ms. Sayantanee Chatterjee,
Mr. Sandeep Bose,
Mr. Sarbananda Sanyal.
For the Opposite Parties : Mr. Sabyasachi Bhattacharya,
Ms. Shohini Chakraborty.
Heard On : 02.12.2015, 17.12.2015,
25.01.2016, 08.02.2016.
C.A.V. On : 08.02.2016.
Judgment Delivered On : 30.03.2016.
Siddhartha Chattopadhyay, J.:
This revisional application is directed against the Order dated 18.06.2015 passed by the learned Additional District Judge, 1st Court at Jangipur, in Miscellaneous Appeal No. 8 of 2014, affirming the Order dated 03.10.2013 passed by the learned Civil Judge (Junior Division) 1st Court, Jangipur in Miscellaneous Case No. 12 of 2008.
2. According to the petitioner, learned Trial Court below failed to appreciate that in respect of land which is bastu in nature pre-emption application under Section 8 of the West Bengal Land Reforms Act is maintainable and that the learned First Appellate Court failed to appreciate that the petitioners are being the adjacent land owners can maintain the application for pre-emption specifically when a portion of the land is transferred to a stranger in respect of the suit property.
3. Before dealing with the points agitated before this Court factual aspects of this case is to be relooked. According to the parties, it is undisputed that the suit land was originally belonged to one Padmakamini Devi who had 30 decimal of land in plot of land bearing No. 870 and the said plot is under the jurisdiction of Jangipur Municipality. It is also admitted by the parties that Padmakamini Devi by virtue of a registered deed of sale bearing No. 1432 dated 18.03.1957 sold the said property to one Kalipada Das and his name was recorded in the R.S.R.O.R. That Kalipada Das sold the property to one Dilip Kumar Singha by virtue of a registered deed of sale bearing No. 1540 dated 20.02.1964. There is no controversy over the issue that Dilip Kumar Singha had possessed the said property and he sold 5.75 decimals of land to the petitioners of a Miscellaneous Case No. 12 of 2008 under a well-demarcated portion. Thereafter, he sold the said property to the present opposite party (Budhan Rajak) and it was registered on 31.01.2008. According to the present petitioner, he is a co-sharer in respect of the said suit land and he is entitled to get pre-emption being one of the co-sharers of the suit property. He also contended that although it is a bastu land yet he is entitled to get pre-emption. As against this, the opposite party contended that since a well-demarcated portion of a holding is sold in that case the subsequent purchaser cannot become a co-sharer in respect of the said property. He also contended that the bastu land is not pre-emptible.
4. After hearing submission of the parties it seem to me that the following legal points emanates from the respective submissions:-
(1) Whether the pre-emption is available to a purchaser of well-
demarcated portion from an admitted owner who subsequently sold the remaining portion to a 3rd party on the ground of co-sharership.
(2) If the bastu land is pre-emptible or not.
5. Now, I have to answer to the point No. 1. In the interest of effective adjudication I would like to refer Section 8 of West Bengal Land Reforms Act "Section 8. Right of purchase by co-sharer or contiguous tenant.-
(1) If a portion or share of a plot of land of a raiyat is transferred to any person other than a co-sharer of a raiyat in the plot of land, the bargadar in the plot of land may, within three months of the date of such transfer, or any co-sharer of a raiyat in the plot of land may, within three months of the service of the notice given under Sub-Section (5) of Section 5, or any raiyat possessing land adjoining such plot of land may, within four months of the date of such transfer, apply to the Munsif having territorial jurisdiction, for transfer of the said portion or share of the plot of land to him, subject to the limit mentioned in Section 14 M, on deposit of the consideration money together sum of ten per cent of that amount:
Provided that if the bargadar in the plot of land, a co-sharer of raiyat in a plot of land and a raiyat possessing land adjoining such plot of land apply for such transfer, the bargadar shall have the prior right to have such portion or share of the plot of land transferred to him, and in such a case, the deposit made by others shall be refunded to them:
Provided further that where the bargadar does not apply for such transfer and a co-sharer of a raiyat in a plot of land and a raiyat possessing land adjoining such plot of land both apply for such transfer, the former shall have the prior right to have such portion or share of the plot of land transferred to him, and in such a case, the deposit made by the latter shall be refunded to him:
Provided also that as amongst raiyats possessing lands adjoining such plot of land preference shall be given to the raiyat having the longest common boundary with the land transferred.
(2) Nothing in this section shall apply to-
(a) a transfer by exchange or by partition, or
(b) a transfer by bequest or gift, or hiba-bil-ewaz, or
(c) a mortgage mentioned in Section 7, or
(d) a transfer for charitable or religious purposes or both without reservation of any pecuniary benefit for any individual, or
(e) a transfer of land in favour of a bargadar in respect of such land if after such transfer, the transferee holds as a raiyat land not exceeding one acre (or 0.4047 hectare) in area in the aggregate.
Explanation.- All orders passed and the consequences thereof under Sections 8, 9 and 10 shall be subject to the provisions of Chapter IIB.
(3) Every application pending before a Revenue Officer at the commencement of Section 7 of the West Bengal Land Reforms (Amendment) Act, 1972 shall, on such commencement, stand transferred to, and disposed of by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every such application shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provision of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972."
6. It appears from the pleading that Dilip Kumar Singha had sold 5.75 decimals of land to the petitioners of Miscellaneous Case No. 12 of 2008 in a well-demarcated portion and also sold a portion to Budhan Rajak (present Opposite Party). In view of the definition as mentioned above I am of the view that if a well-demarcated portion is sold by the original owner of a plot of land, the purchaser does not become the co-sharer with the original owner. If a raiyat being sole owner of the entire plot of land, sells out a well- demarcated portion of the land two different purchasers by different registered deeds then each purchaser becomes sole owner of the demarcated portion purchased by him and none of them become co-sharer of that land. A Co-ordinate Bench of this Court has held the same view in connection with Sk. Samser Ali & Ors. -Vs.- Serina Bibi & Anr. reported in (2012) 2 CHN 694. Accordingly, point No. 1 is answered in the negative.
7. The next point that was argued that the learned Trial Court held that pre-emption is not applicable in connection with bastu land. Learned First Appellate Court took a different view. Section (1) Sub-Section (2) of West Bengal Land Reforms Act speaks that the applicability of the said act is extended to whole of the West Bengal except the area excluded in the said section. Urban Land (Ceiling and Regulation) Act does not contain the overriding clause so as to exclude the applicability of the West Bengal Land Reforms Act in a case covered under the said act. Definition of the land has seen a radical change and now it means land of every description which includes homestead as well. If the definition of the raiyat remain unchanged in that case the argument that is a bastu land could have helped the opposite party. However, learned First Appellate Court held that the bastu land is also under the coverage of land and in view of the application for pre- emption of Section 8 of the West Bengal Land Reforms Act, pre-emption of bastu land is also maintainable.
8. On perusal of the impugned order passed by the learned Courts below, I am not in agreement with the finding of the learned Trial Court so far as "bastu land" is concerned and I have no hesitation to say that the learned First Appellate Court has appreciated the evidence led by both parties in its proper perspectives and has come to correct conclusion, which does not warrant any interference.
9. In the result, the revisional application fails but without cost.
10. Let a copy of this order be sent to the learned Court below for his information and taking necessary action in accordance with law.
11. 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.