Calcutta High Court (Appellete Side)
Bangsodhar Roy vs Smt. Puspa Mondal & Ors on 13 August, 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. 2427 of 2012 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Bangsodhar Roy.
Versus Smt. Puspa Mondal & ors.
For the petitioner: Mr. Asis Ch. Bagchi, Mr. R.N. Mahato.
For the opposite parties: Mr. Bhaskar Ghosh, Mr. Amit Kumar Rakshit.
Heard On: 17.07.2013.
Judgement On: August 13, 2013.
Prasenjit Mandal, J.: This application is at the instance of the pre-emptee and is directed against the judgment and order dated May 14, 2012 passed by the learned Additional District Judge, 5th Fast Track Court, Barrackpore in Misc. Appeal No.102 of 2006 thereby reversing the Order No.52 dated September 21, 2006 passed by the learned Civil Judge (Junior Division), 4th Court, Sealdah in Misc. Case No.40 of 2003 under Section 8 of the West Bengal Land Reforms Act, 1955.
The pre-emptors/opposite parties herein filed an application under Section 8(1) of the West Bengal Land Reforms Act, 1955 being the Misc. Case No.40 of 2003 against the petitioners before the learned Trial Judge for pre-emption. The pre-emptee contested the said misc. case by filing a written objection denying the material allegations contained in the misc. case. Upon consideration of the evidence on record, the learned Trial Judge dismissed the said misc. case on contests. Being aggrieved, the pre-emptors preferred an appeal being Misc. Appeal No.102 of 2006 which was allowed by the impugned order by the learned Additional District Judge, 5th Fast Track Court, Barrackpore. Being aggrieved, the pre-emptee has preferred this application.
Now, the question is whether the pre-emptors are entitled to get an order of pre-emption in respect of the land in case.
Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the parties to the misc. case have adduced evidence in support of their respective contentions. Even an Advocate Commissioner was appointed for inspection of the land in case and he has submitted his report. He was also examined in Court. Upon analysis of evidence on record, the learned Trial Judge has held that the pre- emptors are neither co-sharers nor adjacent land owners of the land in case and as such, he has dismissed the said misc. case on contests.
The First Appellate Court, while dealing with the matter, has concluded that the pre-emptors are the co- sharers of the plot in case being No.154 as well as the contiguous owners of the land in case and as such, they are entitled to get an order of pre-emption. Accordingly, the First Appellate Court has allowed the misc. appeal and passed an order of pre-emption in favour of the pre-emptors/opposite parties herein by reversing the order passed by the learned Trial Judge.
Admittedly, the opposite party no.2 of the misc. case is the vendor and he had transferred the land in case in favour of the vendee, the opposite party no.1 of the misc. case, who is a stranger to the land in case. There is no doubt that the vendor had transferred a portion of the plot in case in favour of the stranger.
It may be recorded herein that the West Bengal Land Reforms Act, 1955 has undergone a major change in the year 2000 by the West Bengal Land Reforms (Amendment) Act, 2000 and the Section 8 of the Act has also undergone a change in respect of the pre-emption matter. Such an amendment has been given effect from August 7, 1969 and according to the changed definition, if a portion or share of a plot of land is transferred to a stranger, bargadar, co-sharer or person possessing land adjacent to the land in case is entitled to pray for pre-emption before the appropriate court after observing certain conditions and formalities.
While dealing with the matter of pre-emption, the Appellate Court has observed that the pre-emptors are the co-sharers of the land in case.
It may be mentioned herein that the pre-emptors became the owner of a portion of the plot in case, i.e., Plot No.154 by way of inheritance from Satish Chandra Mondal and in support of their claim for co-sharership, they have not filed any deed to show that they are the co-sharers.
From the judgment of the learned Trial Judge, it appears that the pre-emptors have filed some record of rights which have been marked Exhibit 7 series and from such papers, it appears that seven separate khatian numbers in the LR record of rights have been allotted to the petitioners in the instant case. As per evidence of the pre-emptors, their land has been mutated with the Barrackpore Municipality. They pay Municipal taxes and rents separately for the land they possess.
The pre-emptors have also filed the record of rights in respect of the plot in case in the name of Satish Chandra Mondal, Exhibit 1, i.e., C.S. Plot No.154. They inherited the share of Satish.
One Ramanath Bhattacharjee got 1 cottah of land in Dag No.150 by a registered deed of gift of 1951 from one of the Zaminders, namely, Rishikesh Ghosh. Thereafter, Nonibala Ghosh, wife of Rishikesh Ghosh disposed of her portion being the land measuring 1 cottah 9 chittack by a sale deed in the year 1957. After the death of Ramanath Bhattacharjee, his son, vendor of the pre-emptee became the owner of the properties left by Ramanath and these two properties of both the parties are contiguous to each other according to the case of the pre-emptors.
Both the parties have adduced evidence to the effect that the land in case is not a vacant land at all. But the pre-emptee has his homestead thereon. The pre-emptee has contended that these properties of the parties are fully demarcated for a long time even when the vendor of the pre-emptee possessed the same. The pre-emptee has mutated his name with the Municipality and he has paid rents to the Government and Municipal taxes to the Municipality for the land in case.
Thus, from the evidence on record, it is clear that the land in case is quite separate from the land possessed by the pre-emptors having distinct C.S. plot nos. of the two plots and the said land in case has been well-recognized as a separate entity under a different khatian, Municipal holding number, etc. The learned First Appellate Court has held that the pre-emptors are the co-sharers and he has considered the definition of co-sharer as indicated in Section 2(6) of the West Bengal Land Reforms Act, 1955 which means a person other than the raiyat, who has an undemarcated interest in the plot of land along with the raiyat. From the analysis of evidence on record, I have held in the above paragraph that since separate khatians has been prepared long time back in the names of the pre-emptors as well as the pre-emptee or his predecessor and the pre- emptee has his homestead on the land in case and mutation has been done with the Municipality also in respect of the lands possessed by the parties. The predecessor-in- interest of the pre-emptors had been in occupation of his land for 4 decades in respect of 6 decimals of land only as per their contention and their land is situated adjoining the land in case. Separate entity had been given to the land of Satish, i.e., predecessor-in- interest of the pre-emptors when he became a direct tenant under the State. The land in case, therefore, cannot be described as an undemarcated land. Therefore, in my view, the learned First Appellate Court has committed a wrong in concluding that the pre-emptors are the co-sharers in respect of the land.
Mr. Asis Ch. Bagchi, learned Advocate for the pre- emptee/petitioner, has contended that as per decision of Smt. Tarulata Mahanta v. Sri Haripada Sarkar of this Bench in 2012(2) CLJ (Cal) 354, the bastu land cannot be the subject of the pre-emption. Relying on the decision of Punit Singh v. Shri Gour @ Gobinda Chandra Das & ors. reported in 2007(3) WBLR (Cal) 93, he has also submitted that the pre-emption cannot be granted in respect of such bastu.
He has also relied on the decision of Swapan Kumar Kar & ors. v. Salil Kumar Dey & ors. reported in 2004(2) CLJ (Cal) 273 and thus, he has submitted that the claim of pre-emption in respect of land covered by Urban Land Ceiling and Regulation Act is not maintainable.
He has also referred to the decision of Birajananda Das Gupta (deceased by LRs.) v. Competent Authority under the Urban Land (Ceiling & Regulation) Act, 1976 & ors. reported in AIR 1988 Calcutta 8 particularly the paragraph no.6 and thus, he has contended that the Court is to consider whether the land is vacant land or not. Thus, he has submitted that the order of the First Appellate Court should be set aside.
Per contra, Mr. Bhaskar Ghosh, learned Advocate appearing for the opposite parties, has contended that the definition of land has been changed and now as per definition of land under Section 2(7) of the West Bengal Land Reforms Act, 1955, land means land of every description and includes tank, tank fishery, fishery, homestead or land used for the purpose of livestock, breeding and so on. Such change of definition has become necessary in the present situation for the purpose of determination of the ceiling limit that a raiyat may retain and also to take possession of the surplus land for distribution of the same to the landless people or for other public purpose particularly under Chapter IIB of the said Act.
He has also contended that the provisions of the Urban Ceiling Act will not be a bar in granting the order of pre-emption and he has relied on the decision of Sri Ramala Chowdhury & anr. v. Sri Suman Ghosh reported in 2010(1) CLJ (Cal) 556.
In this respect, I am of the view that Section 1(2) of the West Bengal Land Reforms Act, 1955 is very much clear, where the Act lays down that it extends to the whole of West Bengal except the area described in Schedule 1 of the Calcutta Municipal Corporation Act, 1980, but not excepting the area included in the said Schedule which immediately before coming to the force of the Calcutta Municipal Corporation (Amendment) Act, 1983 was comprised in the Municipality of Jadavpur, South Suburban and Garden Reach and this has been exclusively described in the decision of Sri Ramala Chowdhury & anr. (supra). So, in my view, the Urban Ceiling Act will not be a bar in granting pre-emption provided the other conditions as per Section 8 of the Act of 1955 are fulfilled.
Anyway, in order to consider the land for the purpose of pre-emption, I do not mean that a limited meaning of the land should be considered, but, the fact to be considered the present position of the land, i.e., whether demarcated, well-defined by boundaries and separate existence by allotment of separate khatian numbers and in consequence of payment of rents, allotment of Municipal holding thereof and payment of municipal taxes, etc. In view of the materials on record, I endorse the view passed by the learned Trial Judge that the pre- emptors having separate identity in respect of their shares in the plot in case for a long period, say, more than 4 decades as direct raiyats under the State in respect of 6 decimals of land only cannot be described that they have an undemarcated share in the plot in case. The contrary finding arrived at by the learned First Appellate Court, in my view, cannot be accepted. So, the findings of the learned First Appellate Court that the pre-emptors are the co-sharers of the land in case cannot be upheld.
So far as the claim for pre-emption on the ground of vicinity is concerned, I find that the learned First Appellate Court has totally ignored the evidence on record or rather I can say he did not consider at all the evidence on record.
An Advocate Commissioner was appointed for inspection of the land in case and during his deposition before the Court, he has clearly indicated that there is a strip of land between the land in case and the land of the pre-emptors. Even the P.W.1 who deposed on behalf of the pre-emptors has also admitted that there is a strip of land in between the land of the pre-emptors and the land in case.
During the cross-examination of the P.W.1, Shri Balaram Mondal has stated clearly that there is a strip of land, but, he does not know the length and breadth of the strip of land in between their house and the house of the opposite parties.
The learned Trial Judge has also recorded that the pre-emptors did not file any RS map to show that the land in case and the land of the pre-emptors are adjacent. Therefore, from the admission of the P.W.1 as well as from the evidence of the independent witness, i.e., the Commissioner, it is clear that the pre-emptors have no land adjoining the land in case. Rather those two plots of land are intervened by a strip of land. So, the learned Trial Judge, in my view, has rightly held that the pre-emptors have failed that they are the contiguous raiyats of the opposite party no.2 of the misc. case and so, the findings of the learned First Appellate Court which does not lay down any discussion of the evidence or why the evidence on record should be discarded cannot be accepted. The learned Trial Judge, in my view, has rightly concluded that the pre-emptors are not the contiguous raiyats in respect of the land in case.
In that view of the matter, I am of the opinion that the impugned order cannot be sustained. The judgment and order passed by the learned First Appellate Court should be set aside and that of the learned Trial Judge should be affirmed. The pre-emptors are not, therefore, entitled to get an order of pre-emption in respect of the land in case.
The application, therefore, succeeds and is allowed. The impugned judgment and order dated May 14, 2012 passed by the learned Additional District Judge, 5th Fast Track Court, Barrackpore in Misc. Appeal No.102 of 2006 is hereby set aside and the judgment and order dated September 21, 2006 passed by the learned Trial Judge in Misc. Case No.40 of 2003 is hereby affirmed.
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.)