Calcutta High Court (Appellete Side)
Smt. Tarulata Mahanta vs Sri Haripada Sarkar on 13 January, 2012
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 693 of 1995 Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Smt. Tarulata Mahanta.
Versus
Sri Haripada Sarkar.
For the petitioner: Mr. A.K. Bagchi,
Mr. Amal Krishna Saha,
Mr. Prabir Kr. Misra.
For the opposite party: Mr. P.S. Bhattacharjee. Heard On: 23.02.2011 & 04.01.2012.
Judgement On: January 13, 2012.
Prasenjit Mandal, J.: This application is at the instance of the pre-emptee and is directed against the Order dated September 9, 1994 passed by the learned Additional District Judge, 2nd Court, Balurghat in Misc. Appeal No.13 of 1991 thereby affirming the judgment and order No.30 dated December 20, 1990 passed by the learned Munsif, Balurghat, West Dinajpur allowing an application for pre-emption under Section 8 of the West Bengal Land Reforms Act.
2
In 1987, the opposite party instituted a Misc. Case being Misc. Case No.35 of 1987 before the learned Munsif, Balurghat for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955 with an alternative prayer under Section 24 of the West Bengal Non-Agricultural Tenancy Act, 1949. The petitioner filed her written objection against the said Misc. Case denying the material allegations contained in the Misc. Case. Both the parties adduced evidence on the said Misc. Case and then the learned Trial Judge allowed the said Misc. Case on contest on December 30/20, 1990.
Being aggrieved, the petitioner herein preferred a Misc. Appeal being Misc. Appeal No.13 of 1991 and the said Misc. Appeal was also dismissed on contest. Being aggrieved, this application has been preferred by the pre-emptee / petitioner herein.
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 the learned Trial Judge allowed the Misc. Case holding that the opposite party is a co-sharer of the land in case by purchase and that he has fulfilled the conditions necessary for the purpose of pre-emption as embodied in Section 8 of the West Bengal Land Reforms Act, 1955. The Appellate Court has also endorsed the same view and in 3 consequence, the Misc. Appeal preferred by the petitioner herein was also dismissed.
Beside the observations made by the Lower Courts I find that it is the specific contention of the petitioner herein that the land in case is situated within the Balurghat Municipality and the said land is surrounded by houses on all sides. It is also the contention of the petitioner herein that the land has been described as 'Bastu' and that the petitioner herein has her homestead thereon. For these reasons, the opposite party is not entitled to get an order of pre-emption.
While assailing the Judgment of the Lower Courts, Mr. A.K.Bagchi, learned Advocate appearing for the petitioner submits that the land in question is Bastu and as such the provisions of Section 8 of the W.B.L.R. Act, 1955 will not be applicable. In support of his contention, he has relied upon the decision of Punit Singh V Sri Gour @ Gobinda Chandra Das & Ors. reported in (2007) 3 WBLR (Cal) 93 and thus, he submits that since the land in question being situated within the area of the Balurghat Municipality and described as 'Bastu', the application for pre- emption is not maintainable.
Mr. Bagchi has also submitted that the Misc. Case for pre- emption is not maintainable. He has also referred to the decision of Gopal Sardar V. Karuna Sardar reported in AIR 2004 Supreme Court 3068 and thus, submits that the West Bengal Land Reforms Act 4 is a self-contained Court in relation to enforcement of rights of pre-emption and looking to the provisions of the Limitation Act, it appears that when one applies for enforcement of rights of pre- emption under Section 8 of the West Bengal Land Reforms Act, the proceedings initiated are in the nature of a suit. So Section 5 of the Limitation Act is not attracted to the proceedings initiated under Section 8 of the West Bengal Land Reforms Act. The right conferred under Section 8 is a statutory right and it is, in fact, a weak right and so strict compliance of the provisions of Section 8 of the said Act is required.
Per contra, Mr. Partha Sarathi Bhattacharya appearing on behalf of the opposite party has supported the impugned order; but at the same time, he has submitted that this Hon'ble Court is to pass the appropriate orders thereon.
From the materials-on-record it is evident that both the Courts below have come to the concurrent findings that the opposite party is a co-sharer of the land in case and an application for pre-emption was allowed on the ground of co- sharership after having fulfilled all the other conditions embodied in Section 8 of the W.B.L.R. Act, 1955 and so, these concurrent findings to the effect that the opposite party is a co- sharer of the land in case should not be disturbed. Both the Courts below have also held that the petitioner herein is a stranger purchaser of a portion of the land in case and this 5 contention of the pre-emptor is not in dispute. So it is also observed that the petitioner herein is a stranger purchaser of a portion of the land in case. Now, the question is whether the opposite party has fulfilled the other conditions relating to the provisions for pre-emption under Section 8 of the said Act.
Upon perusal of the materials-on-record I find that the pre- emptee has raised the contention that the land in case is Bastu and it is surrounded by pucca residential houses on all sides. She has also deposed that she had made a construction of brick building for her residential house and that she has been residing thereon. She has also stated that she is praying municipal taxes and separate municipal holding no. has allotted in her name. She has filed the other connected papers relating to sanction of the plan by the concerned Municipality, the municipal rent receipts, accounts showing expenditure for making construction on the land in case. It is his specific statement during cross-examination that prior to the institution of the Misc. Case, she had constructed her dwelling house thereon. This is not denied at all. Therefore, from the materials-on-record there is no dispute that the land in case is of 'Bastu' quality and it is situated within the area of Balurghat Municipality.
Both the Courts below did not consider such aspect with regard to the land in case. As per decision of Punit Singh (supra) an application for pre-emption is not maintainable in respect of a 6 Bastu land and the said decision is based on the judgment of a Division Bench of this Court in the case of Paschimbanga Bvhumijibi Krishak Samity & Ors. v. State of West Bengal & Ors., reported in (1996) 2 Cal LJ 285:1996 WBLR (Cal) 242. In view of the decision of Punit Singh and referred to above I am, therefore, of the view that the application for pre-emption is not maintainable and so the Lower Courts have committed errors of law in not taking into consideration of the aspect that the land in case is of Bastu quality and so the application under Section 8 of the W.B.L.R. Act is not maintainable.
As regards limitation, upon perusal of the materials-on- record of the application I find that the application does not lay down how the Misc. Case for pre-emption is barred by limitation. The learned Trial Judge as well as the First Appellate Court did not discuss anything as to the contention that the Misc. Case is barred by limitation. There is no observation at all in the judgment and order passed by the Courts below. So, it could be presumed that such ground of limitation was not raised before the Courts below. In fact, in this revisional application it is not clearly stated how the application for pre-emption is barred by limitation. Therefore, since, there is no observation in the findings of the Courts below, it is presumed that such ground of limitation was not taken by the pre-emptee before the Lower Courts. Accordingly, I am of the view that this Court is not in a 7 position to arrive at a conclusion whether the application for pre-emption is barred by limitation. In conclusion, this question of limitation favours the pre-emptor.
Therefore, I am of the view that the order impugned cannot be supported. The revisional application succeeds and is, therefore, allowed.
The impugned order is, therefore, set aside. The Misc. Appeal stands 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.)