Calcutta High Court (Appellete Side)
Basanti Mondal & Ors vs Srikanta Mondal on 26 September, 2013
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
C. O. No. 1110 of 2012
Basanti Mondal & Ors.
Versus
Srikanta Mondal
For the petitioners: Mr. Partha Pratim Roy
Judgment on: 26th September, 2013
Tarun Kumar Gupta, J.:-
The heirs of pre-emptee Bamdeb Mondal have filed this
application under Article 227 of the Constitution of India challenging
order dated 6th of January, 2012 passed by learned Additional District
Judge, 4th Court, Suri, in Misc. Appeal No.12 of 2011 by setting aside the
order of rejection of pre-emption passed by learned Civil Judge (Junior
Division), 2nd Court, Bolpur, Dist. Birbhum on 28.02.2011 in Misc. Case
No.11 of 2007.
As none appeared to oppose this application in spite of service of
notice the case was taken up for ex parte hearing.
O. P. Srikanta Mondal filed this pre-emption case alleging that he
and his three brothers namely Prasanta Mondal, Dhiren Mondal and
Shanti Kumar Mondal jointly purchased a portion of a tank by a
registered kobala dated 16th of March, 1981. His brother Prasanta
Mondal, however, transferred half satak of said tank to a stranger
purchaser namely Bamdeb Mondal by a registered deed of conveyance
dated 28th of February, 2007. Accordingly, he filed said case for pre-
emption of the 'ka' schedule property under Section 8 of the West Bengal
Land Reforms Act in 1955.
The pre-emptee Bamdeb Mondal, since deceased, started to contest
said case by filing written statement alleging that the suit was bad for
partial pre-emption, for not depositing the entire consideration money of
Rs.40,000/- in the court below. It was alleged that he was also a co-
sharer of said tank and not a stranger purchaser. On the death of said pre-
emptee Bamdeb Mondal his heirs were brought on record.
Learned trial court after contested hearing dismissed said case of
pre-emption on the ground that transferor Prasanta Mondal sold out his
entire share namely half satak in the suit tank to the purchaser through a
kobala dated 28th of February, 2007 as it was evident from the admission
of pre-emptee in his cross-examination.
The pre-emptor Srikanta Mondal filed an appeal against said order
of Misc. Appeal 12 of 2011. After contested hearing learned appeal court
allowed said appeal. Hence is this revisional application.
Mr. Partha Pratim Roy appearing for the pre-emptees assails the
impugned judgment of appellate court on the following grounds.
He submits that in the application praying for pre-emption under
Section 8 of the West Bengal Land Reforms Act, 1955 it was nowhere
stated that a portion or share of a plot of land of a raiyat was transferred
to a stranger purchaser which is the very basis of foundation of a case of
pre-emption under said provision. According to him, for not making
those averments in the application for pre-emption the application was
not maintainable and was liable to be rejected on that score alone. In
support of his contention he refers a case law reported in AIR 1979
Calcutta 174 (Saranan Mondal and another vs. Bejoy Bhushan Ghosh).
He next submits that as there was no averment to that effect
the pre-emptor was not entitled to lead any evidence on that score. In
this connection he refers a case reported in AIR 1981 Calcutta page 334
(Adhir Kumar Das vs. Sm. Juthika Sen).
He next submits that the pre-emptor admitted during his cross-
examination that pre-emptees' vendor Prasanta Mondal transferred his
entire 5 'gonda' share to pre-emptee Bamdeb Mondal. According to him,
said admission of pre-emptor in his cross-examination was conclusive
proof that pre-emptees' vendor Prasanta Mondal transferred his entire 5
'gonda' share (half decimal) to the pre-emptee Bamdeb Mondal.
According to him, in view of said admission of the pre-emptor there was
no need to give any other evidence to show that the vendor of pre-emptee
transferred his entire share in the suit tank. According to him, learned
lower appellate court wrongly discarded said admission of the
pre-emptor. His last submission is that suit land was a tank and being
non-agricultural land it was not covered under Section 8 of the Act of
1955. In support of his contention he has referred the case of
Paschimbanga Bhumijibi Krishak Samity & ors. vs. State of West
Bengal & Ors. reported in (1996) 2 Cal L.J. 285, Punit Singh vs. Sri Gour
@ Gobinda Chandra Das & Ors. reported in (2007) 3 WBLR (Cal) 93
and an unreported decision passed in connection with C. O. 693 of 1995
by one of the Hon'ble Judges of this Court relying on said two decisions.
In the case of Saranan Mondal and another (supra) it was held by
one of the Judges of this Court that non-mentioning in the application
about transfer of a portion or a share of a holding of a raiyat may be fatal
to the petition. However, said point was neither argued before said
learned Judge nor the decision of said case was based on said
observation. As such, said observation was nothing but an obiter dictum
having no binding force.
This point of not mentioning in the application that a portion
or a share of a plot of land was transferred, was neither agitated in the
trial court nor in the appellate court. The petitioners / pre-emptees cannot
be permitted to raise this issue of maintainability at this stage for the first
time.
The case of Adhir Kumar Das (supra) relates to an ejectment suit
filed on the ground of reasonable requirement under Section 13(1) (FF)
of the West Bengal Tenancy Act, 1956. The facts of the referred cases
were quite distinguishable from the facts of the present case. In the case
in hand, an application was filed claiming pre-emption under Section 8 of
the Act of 1955 alleging transfer of a co-sharer from joint property to a
stranger purchaser. In order to establish the claim of pre-emption the
petitioner pre-emptor has to establish the basic ingredients of Section 8
of the Act of 1955. In a case of pre-emption under Section 8 of the Act
of 1955 a pre-emptor has to establish that a portion or a share of a plot of
land of a raiyat was transferred to a stranger purchaser, that the petitioner
pre-emptor was a bargadar, or a co-sharer or an adjacent land owner of
the plot of land from which said transfer was made and that he filed said
application within the prescribed time. The opposite party who is
resisting said claim of pre-emption also knows what are the points in
issue in an application for pre-emption under Section 8 of the Act of
1955. As such, the absence of those specific averments in the
application did not prejudice the O. P. pre-emptee in taking his defence in
the case. There was also no specific averment in the written objection of
the pre-emptee that his vendor transferred his entire share in the suit tank.
Under these circumstances there was no bar to adduce evidence by the
parties in support of their respective claims on the point in issue.
In the case of Paschimbanga Bhumijibi Krishak Samity and others
(supra) and subsequent decisions followed as referred by Mr. Roy it was
held that 'bastu' land or land having dwelling house should not come
within the purview of pre-emption under Section 8 of the Act of 1955.
But admittedly, the suit property was a tank. In terms of West Bengal
Land Reforms (Amendment Act) of 1981 land means land of several
descriptions and includes tank, tank fishery etc. as defined in Section 2
(7) of the Act of 1955 with effect from 7th of August, 1969. As such,
tank or tank fishery after said amendment has been brought within the
fold of land as defined in the Act of 1955. After said amendment of the
definition of land in the Act of 1955 whenever any portion or share of a
plot of land of a raiyat whether agriculture or otherwise is transferred to a
stranger purchaser, Section 8 may be attracted. Tank or tank fishery
cannot be equated with 'bastu' land. As such, those case laws have no
application in the facts of this case.
It is true that the pre-emptor stated during his cross-examination
that vendor of the pre-emptee transferred his entire share in the suit plot
to the pre-emptee by the impugned deed dated 28th February, 2007. But
an admission is not conclusive proof. Learned lower appellate court has
rightly held that as per purchase deed dated 16th of March, 1981 (Ext.1)
Prasanta Mondal being vendor of the pre-emptee along with his three
brothers jointly purchased 6 ¾ sataks of undivided share in the suit tank.
As such, by arithmetic calculation Prasanta Mondal had more than 1
(one) satak of share in the suit tank. Admittedly he sold out only half
satak undivided share in the suit tank to pre-emptee through kobala dated
28.02.2007(Ext.2). There is no evidence that there was any mutual partition between the parties through which Prasanta had share of only ½ satak in the suit tank or that through any other previous transfer his share in the suit tank reduced to ½ satak of land. In absence of any evidence to that effect learned lower appellate court was right to hold that the documentary evidence will prevail over the oral evidence so far as the same relate to the contents of a document. It is thus apparent that the vendor of the pre-emptee transferred only a portion or share of a plot of land i.e. suit tank to the pre-emptee by the impugned kobala dated 28th February, 2007.
Accordingly, I am of the opinion that the order impugned of learned lower appellate court is neither wrong nor perverse. As such, it does not call for any interference by this court of revision exercising its extraordinary power under Article 227 of the Constitution of India.
As a result, this application is hereby dismissed ex parte but without costs.
Send down lower court record along with a copy of this judgment at an early date.
Urgent photostat certified copy of this judgment be supplied to the learned counsel of the parties, if applied for.
(Tarun Kumar Gupta, J.)