Calcutta High Court (Appellete Side)
Dipankar Biswas vs Bulu Sundori Biswas & Ors on 21 February, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
1 A-145 21.2.2019 Court No. 21 G.S.Das CO 3259 of 2015 Dipankar Biswas
-Vs-
Bulu Sundori Biswas & Ors.
Mr. Sumar Sankar Chatterjee ... for the Petitioner Mr. Partha Pratim Roy Mr Anirban Das ... for the opposite party.
Certified copy of the order of the learned Trial Judge filed by Mr. Chatterjee be kept on record.
This revisional application under Article 227 of the Constitution of India is at the instance of pre-emptees in a proceeding under Section 8 and 9 of the West Bengal Land Reforms Act, 1955 and is directed against the judgment and order dated May 7, 2015 passed by the learned Additional District Judge, 3rd Court, Berhampore, Dist.-Murshidabad in Misc. Appeal No. 54 of 2012 thereby reversing the Order No. 56 dated 23rd July, 2012 passed by the learned Civil Judge (Junior Division), 1st Court, Berhampore, District- Murshidabad in Misc. Case No. 10 of 2013.
The predecessor in interest of the opposite parties filed 2 an application under Section 8 and 9 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act, in short) to preempt the sell of the suit property in favour of the petitioners vide sale deed dated January 29, 2003 on the ground that he is entitled to pre-empt the said sale being a co-sharer of the vendors of the petitioners in respect of the suit plot.
The learned Trial Judge dismissed the said application on the ground that since the vendors of the petitioners by the impugned sale deed had sold their entire share in the suit plot the provisions of Section 8 of the said Act do not get attracted.
The opposite parties being aggrieved by and dissatisfied with the said judgment and order of the learned Trial Judge preferred an appeal being Misc. Appeal No. 54 of 2012.
The learned Judge of the appeal Court below taking note of the conflict in the two decisions of the learned single Judge of this Court in the case of Kinkar Mahato v. Sahan Mahato reported in (2005) 3 ICC 5 (Cal) and in the case of Biswanath Sarkar & Anr -vs.- Sunit Kumar Saha reported in [(2013) 3 WBLR 271 (Cal)] on the point that whether an application for pre-emption under Section 8 of the said Act is maintainable when a co-sharer raiyat transfers his entire share in the plot of land, followed the 3 decision in the case of Biswanath Sarkar & Anr -vs.- Sunit Kumar Saha(Supra) being a case which is letter in point of time and allowed the application for pre-emption holding that the application under Section 8 of the said Act is maintainable even when a raiyat transfers his entire share to a stranger.
In the present case it is an admitted position that the petitioners i.e. the pre-emptees are strangers to the suit plot.
In view of the apparent conflict of decision in the aforementioned two decisions of this Court a learned single Judge of this Court referred the issue before the Hon'ble Division Bench formulating the said point of conflict in the following manner:-
"Thus there are conflicting views on the interpretation of the word 'or' in Section 8(1) of the West Bengal Land Reforms Act, 1955. While Kinkar Mahato (supra) interpreted the word 'or' as 'of', the subsequent decisions in Biswanath Sarkar (supra) and Sk. Sajhan Ali (supra) held the word 'or' to be disjunctive. As to whether the word 'or' should be read as 'of' as held in Kinkar Mahato (supra) or it should be treated as disjunctive, needs to be resolved."
The Hon'ble Division Bench took several revisional applications for hearing together involving the selfsame issue to answer the said reference. The Hon'ble Division Bench by 4 it's judgment and order dated August 8, 2018 answered the said reference in the case of Naymul Haque @ Nainul Haque Vs. Allauddin Sk. (C.O. No. 1164 of 2015) along with the said other revisional applications.
The Hon'ble Division Bench while answering the said reference took note of a decision delivered by the Hon'ble Apex Court on November 15, 2017 in the case of Chhana Rani Saha Vs. Mani Pal (Civil Appeal No. 5905 of 2009).
The Hon'ble Division Bench started answering the reference with the following observations:-
"These references preliminary involve the question as to whether the right of pre-emption specified in Section 8 of the West Bengal Land Reforms Act, 1955 could be exercised in a case where the entire interest in the subject land is being transferred by a raiyat, if the other conditions stipulated in the aforesaid section are fulfilled."
The Hon'ble Division Bench thereafter answered the said reference as follows:
"10. In the case of Chhana Rani Saha (supra), the contiguous land-owner's right of pre-
emption was upheld in a situation where the entire land in question was sold. This is the opinion of the learned Single Judge in the cases of Biswanath Sarkar (supra) and Sk. Sajhan Ali 5 (supra). The word "or" in Biswanath Sarkar (supra) and Sk. Sajhan Ali (supra) have been construed to be disjunctive. The view of the learned Single Judge in Kinkar Mahato (supra) was that right of pre-emption could be exercised only when a co-sharer raiyat transferred a portion of the share of his interest in the plot of land. In view of the decision of the Hon'ble Supreme Court in the case of Chhana Rani Saha (supra), the word "or" has to be read as "or" only, and not "of". This answers the reference.
Let the applications be placed before the learned Court having jurisdiction on the subject- dispute."
In view of the aforesaid decision of the Hon'ble Division Bench it is now settled position of law that even if the entire share of a co-sharer in a plot of land is transferred the provisions of Section 8 of the said Act get attracted and an application for pre-emption is maintainable.
In view the position of law on this point as decided by the Hon'ble Disivion Bench, the order impugned does not called for any interference.
C.O. No. 3259 of 2015 is dismissed.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied 6 for, be supplied to the parties upon compliance with all requisite formalities.
(BISWAJIT BASU, J. )