Calcutta High Court (Appellete Side)
Haran Chandra Das & Ors vs Sri Tapan Jyoti Guha & Ors on 19 September, 2013
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 195 of 2004 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Haran Chandra Das & ors.
Versus Sri Tapan Jyoti Guha & ors.
For the petitioners: Mr. Sardar Amjad Ali, Mr. Masum Ali Sardar.
For the opposite parties: Mr. Amales Roy, Ms. Mousumi Bhowal, Ms. Deborshi Dhar.
Heard On: 20.06.2013 & 10.09.2013.
Judgement On: September 19, 2013.
Prasenjit Mandal, J.: This application is at the instance of a pre-emptee and is directed against the order dated November 14, 2003 passed by the learned Additional District Judge, 1st Fast Track Court, Cooch Behar in Misc. Appeal No.5 of 2000 thereby reversing the order dated March 2, 2000 passed by the learned Civil Judge (Junior Division), Cooch Behar in Misc. (Pre-emption) Case No.1 of 1999 thereby dismissing the application under Section 8 of the W.B.L.R. Act, 1955 for pre-emption.
The pre-emptor/appellant/opposite party herein instituted a proceeding under Section 8 of the W.B.L.R. Act, 1955 for pre-emption against the stranger purchasers/petitioners herein and that application was dismissed by the learned Trial Judge. Being aggrieved, the pre-emptor preferred an appeal being Misc. Appeal No.5 of 2000, which was allowed by the impugned order. Being aggrieved, this application has been preferred.
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that there is no dispute that the petitioners are the stranger purchasers in respect of the land in case being L.R. Plot No.291.
Admittedly, by a joint registered deed of sale dated January 1, 1969, three persons, namely, the pre-emptor, the opposite party no.5 and one Ajoy Kumar Guha jointly purchased lands including the land in case and no partition deed was executed amongst them showing partition by metes and bounds.
There is no dispute that the said three purchasers possessed land in the following manner:-
That Tapan Jyoti Guha (pre-emptor) possessed Western portion of the said plot, Ajoy Kumar Guha to the Eastern side and Anup Kumar Guha (vendor) of the pre-emptee possessed the middle portion of the land. Thus, it is very much clear that though no partition was held, parties possessed the land according to the convenience and the vendor of the pre-emptees possessed the middle portion of the said plot according to their convenience.
From the materials on record, it has also transpired that the pre-emptors have the land adjoining to the South of the land in case by way of inheritance from his mother.
Since no demarcation was held amongst the three purchasers including the pre-emptor, vendor of the pre- emptees and Ajoy Kumar Guha, according to the definition of 'co-sharer of a raiyat in a plot of land' laid down in Section 2(6) of the W.B.L.R. Act, 1955, the petitioner of the misc. case becomes a co-sharer of the vendor of the pre-emptees and Ajoy Kumar Guha in respect of the land in case. Since amendment of the W.B.L.R. (Amendment) Act, 2000 has been given effect from August 7, 1969 and the definition of 'holding' as indicated earlier under the West Bengal Land Holding Revenue Act, 1979 is no force at present, according to the present definition of co-sharer of a raiyat in a plot of land as indicated in Section 2(6) of the said 1955 Act, having retrospective effect from August 7, 1969, the pre-emptor having an undemarcated interest in the plot of land along with other two raiyats of the land in case, I am of the view that there is no doubt that after coming into force of the West Bengal Land Reforms (Amendment) Act, 2000, such definition of 'co-sharer of a raiyat in a plot of land' shall be taken into consideration for deciding the fate of the dispute between the parties.
Accordingly, in my view, the petitioner has become a co-sharer of a raiyat in the land in case and as such, the petitioner (i.e., the pre-emptor) comes within the category of persons having the right of pre-emption provided the other conditions of Section 8 of the Act are fulfilled.
As per provisions of Section 8 of the 1955 Act, a co-sharer of a raiyat in the plot in case can well pray for pre-emption of the land in case.
During the course of argument, Mr. Sardar Amjad Ali, learned Advocate appearing for the petitioners, has contended that the land in case being situated within the Municipality area, the provisions of the W.B.L.R. Act, 1955 would not be applicable and he has submitted that according to the decision of 2004(2) CLJ (Cal) 273 [Swapan Kumar Kar & ors. v. Salil Kumar Dey], the application for pre-emption is not maintainable.
With due respect to Mr. Ali, I am of the opinion that so far as the question of applicability of the provisions of the said Act is concerned, the matter has been clearly indicated in Section 1(2) of the 1955 Act which indicates that the Act extends to the whole of West Bengal except the area described in Schedule 1 of the Calcutta Municipal Corporation Act, 1980. Accordingly, in my view, the said decision will not be applicable in the instant case. This proposition of law has been clarified in the case of Rajat Neogi v. Pradip Kumar Sen & anr. by describing that the decision of Swapan Kumar Kar & ors. is per in curium.
Therefore, I am of the view that an application under Section 8 of the W.B.L.R. Act, 1955 is quite maintainable in respect of the land in case by the petitioner/pre-emptor/opposite party herein.
While dealing with the matter, the learned Trial Judge has committed wrong by holding that the pre-emptor having undemarcated interest in the plot of land cannot be described either as a co-sharer of a plot in case or adjoining land owner.
For the reasons discussed above, I am of the view that the pre-emptor has proved that he is a co-sharer of the land in case according to Section 2(6) of the 1955 Act and the findings of the learned Trial Judge have been rightly reversed by the First Appellate Court holding that the pre-emptor is a co-sharer of the land.
The other matters relating to compliance of provisions of Section 8(1) of the 1955 Act are not pressed before this Hon'ble Court.
In that view of the matter, I am of the opinion that the First Appellate Court has rightly come to the conclusion holding that the pre-emptor is entitled to get an order of pre-emption.
Accordingly, I am of the view that there is nothing to interfere with the findings of the learned First Appellate Court and as such, the present application is bereft of merits.
So, the application is dismissed.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)