Calcutta High Court (Appellete Side)
Sri Atanu Ghosh vs Prabhash Chandra Dey And Others on 12 August, 2021
12th August, 2021 (AK) 113 C.O. 563 of 2009 Sri Atanu Ghosh Vs. Prabhash Chandra Dey and others (Via video conference) Mr. Tanmoy Mukherjee Mr. Amal Kumar Saha Mr. Iresh Paul ... For the Petitioner.
Mr. Tapash Kumar Bhattacharya Mr. Aviroop Bhattacharya ...For the Opposite parties.
The pre-emptee in a proceeding under Section 8 of the West Bengal Land Reforms Act, 1955 has preferred the instant revisional application against the order of the appellate court below, whereby the appellate court set aside the order of dismissal of the trial court and granted preemption to the opposite party on the ground of co- sharership.
Learned counsel for the petitioner raises a short question for consideration in the present revision. In the facts of the case, one Bangal and one Bholanath were the original co-owners of the plot-in-question. The heirs of Bangal sold a portion of Bangal's share to the present preemptor in the year 1999.
On the other hand, a portion of Bholanath's share was sold to one Laxmi. It is significant to mention here 2 that the sale in favour of Laxmi was executed by both Bangal and Bholanath together, by the same deed, thereby transferring a specifically demarcated portion of their land to Laxmi, in the year 1961.
It is contended by learned counsel for the petitioner that, by virtue of such transfer, Laxmi became the absolute owner of the specifically demarcated portion sold by both the co-owners to him. The pre-emptee, being the present revisionist-petitioner, purchased the property from Laxmi in the year 2004.
Learned counsel contends that the pre-condition of Section 8 of the 1955 Act coming into operation is that the transfer sought to be preempted is not in favour of a co-owner of the property sought to be preempted and that the persons entitled to preemption are to be either bargadar, or co-sharer or contiguous of the portion or share transferred.
In the present case, the property-in-question, which is sought to be preempted, was sold in its entirety not by one of the co-owners but by both the co-owners, as a single body, by specifically demarcating the same, to Laxmi as an absolute owner who sold the same subsequently to the pre-emptee who, by such transfer, also became the absolute owner of a separate piece of land, independent and demarcated from the plot of land which is the subject-matter of pre-emption. 3
As such, the preemption application was not maintainable and ought to have been dismissed by the appellate court, although on grounds different than the trial court.
Learned counsel appearing for the preemptors/opposite parties controverts such
submissions and contends that unless there is partition as recognized by Section 14 of the 1955 Act by metes and bounds, either by a court's decree or by a registered deed, the co-ownership in respect of the property is not obliterated.
Hence, it is argued that there cannot be any doubt that the preemptor was a co-owner in respect of the property and, as such, entitled to a right of preemption of the transfer.
Learned counsel for the opposite party, in support of his contention, cites the judgments of Bula Kundu Vs. Nirmal Kumar Kundu, reported at 2000 (1) CHN 505, and Satish Chandra Mondal Vs. Sourav Mondal, reported at 2015 (2) CHN (CAL) 616, and an unreported judgment passed in Sk. Abdul Odud Ali Vs. Emanulla Khan and others, all rendered by learned single Judges of this court, in support of his contention.
Learned counsel further cites Saibar Rahaman Vs. Munshi Md. Hedayatulla reported at 2015 (2) CHN (CAL) 228, to harp on the ratio laid down therein, that an 4 application for preemption is maintainable even when the co-sharer has transferred his share in its entirety.
However, the said judgments are not applicable in the facts of the instant case, inasmuch as the principles laid down therein are completely different from the question which has fallen for consideration in the present lis.
In the present context, it is evident from the sale- deed executed in 1961 in favour of Laxmi that not only did the same effect a segregation, by specific demarcation and mention in the schedule of the sale deed, but was executed by both the co-owners, as a single body, in unison.
The effect of such transfer would be that, similar to the sale of a demarcated portion by a single owner, the entire ownership of all the co-owners in the said demarcated portion was transferred in favour of Laxmi, through whom the pre-emptee claims by dint of a purchase deed of 2004.
Hence, in 1999, when the pre-emptor purchased a portion of the property from some of the co-sharers in the rest of the property, leaving aside the previously demarcated portion (which had attained independent and absolute character as far as back as in 1961), the pre- emptor only derived title in respect of a portion of the rest of the property, other than that sold out to Laxmi in 5 1961, and became a co-owner in a limited sense only in respect of such balance land.
It is also evident from the deed of 1961 that the northern boundary of the transferred land, as per the description of the schedule of the deed, was clearly specified to be butted and bounded by other land of both the co-owners, from which a portion was subsequently sold to the pre-emptor.
Hence, even if the pre-emptor is a co-owner vis-à- vis the other co-owners, such co-ownership is, at best, restricted to the portion which was not sold to Laxmi and thereafter to the pre-emptee.
As far as the pre-emptee's portion is concerned, first Laxmi and then the pre-emptee became absolute owners respectively, since the original transfer was effected upon demarcation by both the co-owners as a single body.
Section 8 of the 1955 Act is clearly qualified by the rider that the right to preemption arises only when a "portion or share" of a plot of land is transferred. However, in the instant case, the entire property of Laxmi, which acquired independent and separate character in the year1961, was transferred to the preemptee in 2004, thereby not attracting Section 8 at all.
In such view of the matter, the order of the appellate court cannot stand the scrutiny of law. In the present case, the operation of Section 8 of the 1955 Act is 6 precluded altogether, since no portion or share of a plot of land sought to be pre-empted, that is, the preemptee's land, was transferred in 2004. Moreover, the preemptors were at best co-owners of the adjacent plot of land, retained jointly by the original owners post-transfer to Laxmi, and had no nexus with the land of which the sale was sought to be preempted, of which the preemptee was the sole and absolute owner.
Hence, it cannot be said that the preemptors were co-owners of the preemptee's land or that any "portion or share" of the adjacent plot of land, jointly owned by the preemptors, was sold to the preemptee.
Thus, the appellate court acted without jurisdiction in granting the pre-emption on the ground of co- sharership.
As such, C.O. 563 of 2009 is allowed, thereby setting aside the order passed by the appellate court granting pre-emption to the opposite party.
There will be no order as to costs.
Urgent website certified copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.
(Sabyasachi Bhattacharyya, J.)