Calcutta High Court (Appellete Side)
Abdul Matin Mallick vs Subrata Bhattacharjee(Banerjee)&Ors on 17 April, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice BiswajitBasu.
C.O. 4266 of 2016
Abdul Matin Mallick
-Versus-
Subrata Bhattacharjee(Banerjee)&Ors.
For the petitioner : Mr. Anit Kumar Rakshit.
For the opposite party: Mr. Partha Pratim Roy,
Mr. Kajal Ray,
Mr. Aditya Sen.
Heard on : 05.04.2019
Judgement on : 17.04.2019
BiswajitBasu, J.
1. The revisional application under Article 227 of the Constitution of India is at the instance of a pre-emptee in proceeding under Section 8 of the West Bengal Land Reforms Act, 1959 (hereinafter referred to as the 'said Act' in short).
2. The facts recorded hereinafter are not in dispute. The property mentioned in the Schedule 'A' appended to the application for pre-emption originally belonged to one Khudiram Bhattacharya who died on April 17, 2001 living behind him surviving his widow Purnima Bhattacharya who also died on August 14, 2001 and three sons namely Subrata, Debabrata and Ratan the pre-emptors herein and two daughters Kalyani and Alpana the vendors of the pre- emptee/petitioner. On the death of Khudiram Bhattacharya and his said widow the aforesaid sons and daughters inherited the Schedule 'A' property each having undivided 1/5th share therein. The said daughter of the said Khudiram Bhattacharya sold their undivided 2/5th share in the Schedule A property to the pre-emptee Abdul Matin Mullick by a registered deed of sale being no. 06743 dated November 23, 2011. The said sale in favour of said Abdul Matin Mullick by the daughters of said Khudiram Bhattacharya has been sought to be pre-empted by the sons of said Khudiram Bhattacharya on the ground that their sisters have transferred their undivided share in the Schedule 'A' property to the said Abdul Matin Mullick, a stranger to the said property without serving statutory notice under Sub-Section 5 of Section 5 of the said Act. The said application under Section 8 of the said Act was registered as Misc. Pre-emption Case No. 8 of 2012, before the learned Trial Judge.
3. The learned Trial Judge placing reliance on a judgment of the learned Single Judge of this Court in the case of KINKAR MAHATO & ORS. Vs. SAHAN MAHATO & ORS. reported in (2005) 3 ICC 5 dismissed the application for pre- emption holding that since the vendors of the pre-emptee have transferred their entire share in the suit Schedule 'A' property, the application for pre-emption under Section 8 of the said Act is not maintainable.
4. The pre-emptors being aggrieved by and dissatisfied with the said judgment and order of the learned Trial Judge preferred an appeal being Misc. Appeal No. 7 of 2014. The learned Judge of the appeal Court below allowed the application for pre-emption by reversing the judgment and order of the learned Trial Judge, placing reliance on the decision of another learned Single Judge of this Court in the case of Sk. Sajhan Ali & Ors. Vs. Sk. Saber Ali & Anr. reported in 2016 (1) W.B.L.R (Cal) 133 wherein it has been held that even when the entire share of a co-sharer in plot of land is transferred to any person other than a raiyat in the said plot of land the application for pre-emption under Section 8 of the said Act is maintainable.
5. There were conflicting views of the learned Single Judges of this Court on the question whether an application under Section 8 of the said Act is maintainable when a co-sharer of a plot of land transfers his entire share to any person other than a raiyat in the said plot of land. To resolve the said issue the said question was referred to the larger Bench of this Court. The larger Bench in the case of Naymul Haque and Ors. Vs. Allauddin Sk. and Ors. reported in MANU/WB/0703/2018 since has answered the said question in affirmative, the said issue therefore is no more res integra.
6. Mr. Rakshit, learned counsel appearing on behalf of the pre- emptee/petitioner submits that since separate Khatians in respect of the shares of the vendors of the pre-emptee in the suit Schedule 'A' property have already been opened the Schedule A property looses it's character of a joint property and the vendors of the pre-emptee are no longer co-sharers of the pre- emptors/opposite parties in respect of the said plot of land.
7. Mr. Roy, learned counsel appearing on behalf of the opposite parties placing reliance on the judgment of the learned Single Judge of this Court in the case of MD. SELAMUDDIN MIA (MINOR) Vs. DINESH CHANDRA KARMAKAR reported in 2016 (3) CALCUTTA HIGH COURT NOTES (CAL) 146 submits that opening of a separate Khatians does not tantamount to partition. He further submits that partition of a joint property can only be conceived of when such partition is effected according to the provisions of Section 14 of the said Act.
Heard learned counsel for the parties and perused the materials on record.
8. The vendors of the pre-emptee/petitioner and the pre-emptors/opposite parties have acquired right, title and interest in suit Schedule 'A' property by inheritance, this fact is not in dispute as such they are admittedly co-sharers of the pre-emptors/opposite parties in respect of suit Schedule 'A' property. What is in dispute is whether co-sharership of the vendors of the pre-emptee/petitioner with the pre-emptors/opposite parties ceases on separate Khatians in respect of the shares of the vendors of the pre-emptee/petitioner in the suit Schedule 'A' property are being opened.
9. To answer the said question a look to the definition of co-sharer as it stands after amendment of the said definition by the West Bengal Land Reforms Amendment Act, 2000 is required to be looked into.
" (6) "co-sharer of a raiyat in a plot of land" means a person, other than the raiyat, who has an undemarcated interest in the plot of land along with the raiyat"
Therefore, according to the said definition demarcation of the interest of a raiyat in the plot of land, will only denote cessation of co-sharership of the said raiyat in the said plot of land. The demarcation of interest of a raiyat of in a plot of land can only be made by effecting partition of the said plot of land through any of the modes prescribed under Section 14 of the said Act i.e. either by a registered instrument or by a decree or order of a Court. In the present case the shares of the vendors of the pre-emptee/petitioner in the suit Schedule 'A' property have not been partitioned by any of the modes as contemplated under Section 14 of the said Act.
10. Opening of a separate Khatians in respect of the shares of the vendors of the pre-emptee/petitioner cannot substitute the mode of partition as prescribed under the said provision of Section 14 of the said Act. This view of this Court gets support from the decision of the learned Single Judge of this Court relied on by Mr. Roy reported in 2016 (3) CALCUTTA HIGH COURT NOTES (CAL) 146 (supra).
In view of the discussion made above, the order impugned being Order dated September 1, 2016 passed by the learned Additional District Judge, Kalna, Dist. Burdwan in Misc. Appeal No. 7 of 2014 does not call for any interference.
C.O. 4266 of 2016 is dismissed. There will be no order as to costs. However, time for deposit of the consideration money together with further sum of ten percent of that amount is extended for a further period of thirty days from the date.
On the deposit of the said amount the pre-emptee/petitioner is permitted to withdraw the same.
Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(BISWAJIT BASU, J.)