Calcutta High Court (Appellete Side)
Sanatan Mathura & Ors vs Madan Mahan Das & Ors on 29 September, 2016
IN THE HIGH COURT AT CALCUTTA
(CIVIL REVISIONAL JURISDICTION)
C.O. No. 2081 of 2008
Sanatan Mathura & Ors.
-Vs.-
Madan Mahan Das & Ors.
Present : The Hon'ble Mr. Justice Siddhartha Chattopadhyay
For the Petitioners : Mr. Apurba Ghanti,
Mrs. Priti Jain.
For the Opposite Party : Mr. Hiranmoy Bhattacharya,
Mr. Laxminath Bhattacharya.
Heard On : 13.07.2016.
C.A.V. On : 13.07.2016
Judgment Delivered On : 29.09.2016
Siddhartha Chattopadhyay, J.:
Challenging the legality and validity of the judgment dated 18.04.2008 passed by the learned Additional District Judge, 2nd Fast Track Court, Tamluk, Purba Medinipur in Misc. Appeal No. 81 of 2006, the petitioner has come before this forum with a prayer to set aside the impugned order passed by the First Appellate Court on the ground that the learned First Appellate Court failed to construe the provision of Section 8 of W.B.L.R. Act.
2. According to the petitioner, learned First Appellate Court, did not consider the evidence and documents in its proper perspectives and has come to an incorrect finding which requires interference from this Court. As against this, learned Counsel appearing on behalf of the opposite party contended that the learned First Appellate Court reversed the order of the learned Trial Court showing a sound reason which does not require any interference. To come to a finding we should consider the factual aspect.
3. According to the petitioner of Misc. Case No. 33 of 2002, the contention of the petitioner is such that the Ka and Ka/1 schedule property is the part of Kha schedule property. The said Ka schedule property originally belonged to one Mahesh Chandra Mondal. On 04.05.1943 he had executed a registered deed of gift in favour of his two sons namely Sita Ram Das and Charan Das. Thereafter the said Sita Ram Das and Charan Das jointly dug a doba on plot no. 346. Thereafter Charan Das had gifted his share to the extent of 3/1 decimals of land along with other non-suited plots to his grandson on 30.01.1974. Subsequently, Sita Ram Das also gifted three decimals of land on 11.07.1989 and 31.12.1996 to the petitioner and one decimal of land was gifted to Bharat Chandra Das by Sita Ram Das. Petitioners further cases is such that the plot nos. 344 and 345 are adjoining land of the suit plot no. 346 and in those plots that they have residential units. But the opposite party No. 3 Netai Charan Das sold the said land in favour of opposite party Nos. 1 and 2, without disclosing the same to the present petitioners. According to the petitioner, they are co- sharers in the suit plot and so they are entitled to their pre-emption on the ground of co-sharers as well as adjoining land owner.
4. On perusal of the learned trial Court's order it appears that the learned Trial Court held that the co-sharership of the transferee is not perfect and unqualified so long the right of pre-emption of the co-sharer subsists. The learned trial Court is also of the opinion that if the petitioner had not sought to pre-empt in respect of the first purchase or if the application of the petitioner for pre-emption had failed for some other reason, the opposite parties rights of co-sharer of the holding by virtue of the first purchase would not have been perfect and complete. In the present case it appears that the first transfer was made in favour of the opposite party No. 2 in the case of plot by which she has alleged to have become a co- sharer in the suit land. The present petitioners have exercised the right of pre-emption.
5. Learned Counsel appearing on behalf of the opposite party contended that the First Appellate Court held that the appellants (present opposite party) are the co-sharers as well as the raiyat of Dag No. 346. Learned First Appellate Court had relied on the report under Order 39 Rule 7 of C.P.C. which speaks that suit land Dag No. 346 is contiguous to Dag No. 345.
6. After hearing the rival submission of the parties it seems to me that this Court is called upon to answer:
(b) Whether the pre-emption is available to a purchaser of a well-
demarcated portion from an admitted owner who subsequently sold the remaining portion to a third party on the ground of co-sharership.
7. It has been well-settled in a decision reported in Sk. Samser Ali - Vs.- Serina Bibi 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. In the said judgment, legal principle was discussed in this fashion that when an original owner has sold the well-demarcated portion it does not attract Section 14 of the Act and by virtue of said purchase he does not become a co-sharer along with the original owner. If the petitioner cannot be a co-sharer of an admitted owner, he cannot assume such character if the remaining portion of the plot of land apart from well-demarcated portion is transferred to a third party. The petitioner has also pre-emptor also prayed for a decree on the ground of adjoining land owner. But in view of Section 8 (2) speaks "(2) Noting 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.]"
Therefore, if any transfer has been effected by a registered deed of gift in that case claim of pre-emption does not arise. Here the impugned plot was gifted by their predecessor-in-interest in favour of their siblings. Therefore, the claim in regard to pre-emption on the ground of vicinage/adjoining land owner also does not arise.
8. Considering the circumstances, I am of the view that the judgment passed by the learned First Appellate Court is required to be set aside. Accordingly, this revisional application stands allowed.
9. Let a copy of this judgment be sent to the learned Court below for his information and taking necessary action in accordance with law.
10. 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.