Calcutta High Court (Appellete Side)
Bibhuti Biswas vs Goutam Das & Anr on 11 July, 2013
Author: Asim Kumar Ray
Bench: Asim Kumar Ray
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11.07.13
(35)
Basudev
C.O. 1274 of 2009
Bibhuti Biswas
VS
Goutam Das & Anr.
Mr. Partha Sarathi Bhattacharjee,
Mr. Raju Bhattacharjee
- For the Petitioner.
Mr. Kushal Pal
- For the Opposite Parties.
This revisional application is directed against the
judgment and order dated 29.11.2008 passed in Misc. Appeal
No. 1 of 2006 by learned Additional District Judge, 1st Court,
Raiganj thereby affirming the judgment and/or order dated on
8.8.2005 passed in Misc. Case No. 68 of 2004 by the learned
Civil Judge, (Junior Division), Raiganj whereby the
petitioner's prayer for pre-emption in respect of the property in
issue has been rejected.
Being aggrieved by the said judgment and order, this
revisional application has been filed.
Concisely stated the case of the petitioner is that his
predecessor, Pandit Chandra Biswas purchased the land in
issue by registered Sale Deed from one Aswini Kumar Biswas.
Pandit Chandra Biswas died leaving behind his six sons, two
daughters and widow - Sabitri. The petitioner is one of his six
sons and heirs of Pandit Candra Biswas. A family settlement
Deed was executed between Sabitri, mother of the parties and
her six sons. Mano Mohan Biswas, the brother of the
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petitioner who is one of the six sons of Pandit Chandra Biswas
sold his share of land to opposite parties Goutam Das and
Baby Das by registered deed of instrument on 11.6.2004. The
petitioner, Bibhuti Das being one of the six sons took out an
application under Section 8 of the West Bengal Land Reforms
Act, 1955 and the said proceeding was registered as Misc.
case no. 68 of 2004 before the learned Civil Judge (Junior
Division), Raiganj. The matter was heard by the learned
Munsiff and a judgment was delivered on 8.8.2005 thereby
dismissing the Misc. case on contest. An appeal was preferred
by the petitioner. The same was registered as Misc. Appeal no.
1 of 2006 and that appeal too was dismissed thereby the
judgment and order passed by the learned Munsiff was
affirmed. In this background, this revisional application is
before this Court.
Learned Counsel appearing on behalf of the petitioner
invited my attention to the judgment and order passed by the
learned Munsiff and has contended that the learned Munsiff
has arrived at a decision that the property in question is a
non-agricultural land and that is why that is beyond the scope
of preemption.
Learned Counsel appearing for the petitioner has relied on
a decision reported in (1997) II CHN 20 and has contended
that this Hon'ble Court as back as in the year 1989 has held
that the "land" defined in the West Bengal Non-Agricultural
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Tenancy Act, 1949 will come into play overriding the definition
of "land" which is coming out from West Bengal Land Reforms
Act, 1955.
This Court has declared the definition of land as contained
in Section 2(7) and Section 3A of the West Bengal Land
Reforms Act (3rd Amendment), 1986 ultra-vires of Article 300A
of the Constitution of India and as a result of the said decision
the original definition of land under West Bengal Land Reforms
Act, 1955 has been revived and inclusion tenancies held under
the West Bengal Non-Agricultural Tenancy Act, 1949 within
the purview of the West Bengal Land Reforms Act, 1955 has
come to a halt.
Therefore, the first limb of contention of the learned
counsel of the petitioner is that as the land is a non-
agricultural land, the petitioner has filed the application under
Section 8 of the West Bengal Land Reforms Act, 1955 rightly.
Learned counsel for the petitioner has further contended
that the petitioner is a co-sharer as well as a 'raiyat' having his
adjacent land to the land in issue and from that point of view
his application under Section 8 of the said Act does not suffer
from any respect. He has invited my attention to the provision
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laid down in Section 1(2) of the West Bengal Land Reforms Act
and has contended that the very Act is applicable in respect of
land excluding the land situated within the Calcutta Municipal
area. The land in issue being a land situated at Raiganj within
the municipal area of Raiganj is well within the ambit of the
said Act.
In course of his argument he has also referred to a
decision reported in (1996) II CHN 212 and has contended
that the said decision nowhere indicates that the non-
agricultural land will not come under the purview of the
definition of land. He has also referred to a decision reported in
(2007) 3 WBLR (Cal) 93 which is on the preemption in respect
of bastu land. He has contended that at the time of dealing
with that matter the Court took notice of the Urban Land
Ceiling Act to decide the matter and has observed that bastu
land does not fall within the scope of preemption. He has also
cited a decision reported in 2007 (2) SCC 138 and has
submitted that when the finding of a coordinate bench is not
accepted by a bench judicial discipline demands that the
matter be referred to a larger bench. He has contended that
the judgment and order impugned does not reflect the true
position of land and it may be interfered with and set aside.
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Learned counsel appearing on behalf of the respondents
has contended that the land in dispute is well demarcated land. It has been partitioned. There is a common passage between the land in issue and the land which the petitioner is possessing. The petitioner is not at all a co-sharer in respect of the land in issue. He has also not an adjoining land owner. He has placed the provision laid down in Section 8 of the said Act and has invited my attention especially to the provision laid down in sub-section 2 of Section 8 of the said Act and has submitted that as the land has been partitioned Section 8 has no application at all.
He has further contended that the land is situated within the municipal area of Raiganj. It has been recorded as a bastu land. Pucca structure is standing on the land. The land is as such not a land to which the definition of land of the said Act is fitted with. He has contended that the decision reported in (2007) 3 WBLR (Cal) 93 is relevant to this case as the property in issue falls within the municipal area. He as invited my attention to the schedule to the petition of preemption (page 59 of the Revisional Application) and has contended that a clear picture has been depicted by the petitioner showing the land as it has separate entity and there is no connection with 6 the land in issue with that of the land which the petitioner is possessing. There is common passage too. He has drawn my attention to the judgment passed by the learned Court below and has submitted that the learned Munsiff has borrowed the finding of this Hon'ble Court coming out from the decision reported in 1997 (II) CHN 20 saying that the definition of land coming out from the Non-Agricultural Tenancy Act has been revived and the said finding is not an independent finding of the learned Appellate Court.
He has also referred to a decision reported in 1996(II) CHN 245 and has contended that if the preemptor is a co- sharer and where the land has not been partitioned by metes and bounds by a Deed of Partition or Decree of the Court as per Section 14 of the said Act an application for preemption lies but not otherwise. He has supported the judgment passed by the learned trial Court as well as the first revisional Court.
It is an admitted fact that the petitioner Bibhti Biswas is the son of Pandit Chandra Biswas. It is also an admitted fact that Sabitri Biswas is his mother and Mano Mohan Biswas is his brother. It is not disputed that there is family settlement (Bantannama) between the petitioner, his mother Sabitri and his other brothers including Mano Mohan. The said 7 Bantannama has been annexed to this revisional application. On the face of the said document it is coming out that an amicable partition between the petitioner and his other brothers and mother took place. It is also coming out therefrom that the petitioner's two sisters have relinquished their claims to the property in favour of their mother, Sabitri. The preemption petition submitted before the learned Court below has truly described the property in issue and the property situated around it. That will come out from 'Kha' schedule to the petition. The entire plot has been divided into eight portions. In one side there are four portions and in another side there are other four portions. In between those portions there is a common passage. The land in issue falls within one portion and the petitioner's land situates in another portion and in between those lands there is a common passage. It is an admitted fact that there is registered document showing partition of the plot of land which was devolved upon the petitioner, his mother - Sabitri and other brothers and sisters. Therefore, it is clear that those portions of property is an independent portion and legal heirs of Pandit Chandra Biswas are in possession of those independent portion.
8It comes out from the aforesaid discussion that the land which the petitioner is claiming that it may be preempted by him as he is a co-sharer having an adjoining land appears to be not matching with his own petition which he submitted before the learned Munsiff praying for preemption. It cannot be said that he is a co-sharer. He is also not an owner having an adjacent land to the land which he is claiming to preempt. In the decision in the case of Prafulla Kumar Maity vs. Amal Krishna Mishra & Ors. reported in 1997 (II) CHN 20 this Court has dealt with Section 3A of the said Act as substituted by the West Bengal Land Reforms (3rd Edition) Act, 1986 which entails land of every description including land forming part of non-agricultural tenancy, all came within the purview of the West Bengal Land Reforms Act, 1955. Thus, preemption is available in respect of non-agricultural land also. Coming to the said decision, the Court has expressed that the definition of land as contained in Section 2(7) and Section 3A of the West Bengal Land Reforms (3rd Amendment) Act, 1986 ultra-vires of Article 300A of the Constitution of India and the effect of the said decision is that the original definition of land under the said Act has been revived and inclusion of tenancies held under the West Bengal Non- 9 Agricultural Tenancy Act, 1949 within the purview of the said Act has come to a halt.
This Hon'ble Court at the time of dealing with the case (Prafulla Kumar Maity vs. Amal Krishna Mishra & Ors.) had the occasion to go through the ratio of Paschimbanga Bhumijibi Krishak Samiti & Ors. vs. State of West Bengal & Ors. reported in 1996 (II) CHN 212. It is submitted by the learned counsels of the parties that the said matter is sub- judiced before that, the Hon'ble Apex Court. It is an admitted fact that the land in issue is a bastu land and the same has been recorded as such. It is not also disputed that the pucca structure is standing on the said land. Therefore, the character of the land in issue appears to be a non-agricultural land.
I may now place the definition of land under Section 2(7) of the said Act "land" means land of every description and includes tank- fisherey, fisherey, homestead, or land used for the purpose of livestock breeding, poulry framing, dairy or land comprised in tea garden, mill, factory, workshop, orchard, hat, bazar, ferries, tolls or land having any other sairati interests and any other land together with all interests, and benefits arising out of land and things attached to the earth or permanently fastened to anything attached to earth;
Explanation. - "Homestead" shall have the same meaning as in the West Bengal Estates Acquisition Act, 1953 (West Ben. Act I of 1954);"
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On simple perusal of the definition of the land it is attracted to my sight that bastu is nowhere there. Section 1(2) of the said Act speaks that the West Bengal Land Reforms Act, 1955 extends to the area of whole West Bengal except the area described in Schedule "A" of the Calcutta Municipal Act, 1980 but not excepting the area included in the said schedule which immediately before the coming into force the Calcutta Municipal Corporation Amendment Act, 1980. Therefore, the land which is admittedly within a municipal area at Raiganj is well within the scope of the provision of the West Bengal Land Reforms Act, 1955. The views of this Hon'ble Court coming from the decision of a case of Punit Singh vs. Sri Gour @ Gobinda Chandra Das & Ors. reported in (2007)3 WBLR (Cal.) 93 appears to be non applicable in the case which is in my hands. Considering the aforesaid background and analysing the decisions referred to above, I am of considered opinion that there is nothing to interfere with the judgment and order impugned passed by the learned Courts below. Accordingly, the revisional application stands dismissed. 11 Interim order, if any, stands vacated.
Urgent certified copy of this Order, duly photocopied, if applied for by the parties, the same should be given expeditiously.
(Asim Kumar Ray, J.)