Calcutta High Court (Appellete Side)
Sri Lakshman Sil vs Smt. Mita Karmakar & Ors on 26 March, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CO No. 1765 of 2016
Sri Lakshman Sil
-Versus-
Smt. Mita Karmakar & Ors.
For the Petitioner: Mr. Asish Sanyal
Mr. Sunil Kumar Chakraborty
Mr. Sumitava Chakraborty.
For the OPs: Mr. Anit Kumar Rakshit
Mr. S.S. Bayerd.
Heard on: January 31, 2019.
Judgment on: March 26, 2019.
BIBEK CHAUDHURI, J. : -
1.Judgment and order of reversal passed in Miscellaneous Appeal No.32 of 2005 by the learned Additional District Judge, 2nd Court at Hooghly on 30th March, 2016 is under challenged in the instant revision under Article 227 of the Constitution of India.
2. Briefly stated, facts of the case leading to the instant revision are as follows:-
3. One Kanailal Karmakar (hereafter described as opposite party) filed a petition under Section 8 of the West Bengal Land Reforms Act (hereafter 2 described as the "said Act") which was registered as Preemption Misc Case No.15 of 2001 in the 1st Court of the learned Civil Judge (Junior Division) Hooghly pleading, inter alia, that proforma opposite party No.2 and 3 were the owner of RS dag No.878 appertaining to khatian No.250 of Mouza Raghunathpur within PS Mogra. The opposite party is the absolute owner of a piece and parcel of property adjacent to the above mentioned plot of land. The opposite party came to know from the petitioner on 27th December, 2000 that he had purchased RS plot No.878 (hereafter described as case property) from proforma opposite parties No.2 and 3. Since the opposite party, being the adjacent owner, having longest common boundary with the case land was not served with any notice under Section 5 of the West Bengal Land Reforms Act, he made an application for preemption. It is further pleaded by the opposite party in his application under Section 8 of the said Act that the impugned sale was effected on 26th December, 2000.
4. The preemptee, petitioner herein contested the said application by filing a written objection wherein he denied all the allegations made out by the present opposite party in his application under Section 8 of the said Act. It is specifically denied that the opposite party is the contiguous owner of the case land having longest common boundary. Specific case of the petitioner is that proforma opposite party No.2 and 3 had ½ satak demarcated portion and one Gabinda Malo who happens to the son of proforma opposite party No.2 had ½ satak demarcated portion in plot No.878. The aforesaid three owners expressed their intention to sale their respective specific portion to the petitioner. The opposite party also wanted to purchase the case land from the vendors of the petitioner. Therefore, the allegation of the opposite party that he had no knowledge of the impugned transfer does not arise at all.
35. Parties led their respective evidence in the trial court and by an order dated 31st January, 2005 Preemption Misc Case No.43 of 2004 was rejected on contest without cost.
6. The preemptor/opposite party filed an appeal against the order passed in Preemption Misc Case No.43 of 2004 in the Court of 2nd Court of learned Additional District Judge, Hooghly which was registered as Misc Appeal No.32 of 2005.
7. The learned Additional District Judge, 2nd Court, Hooghly by an order dated 30th march 2016 allowed aforesaid misc appeal on contest. Prayer of the opposite party herein for preemption of the case land was accordingly allowed.
8. The said order dated 30th March, 2016 passed in Misc Appeal No.32 of 2005 is assailed in the instant revision.
9. The learned trial judge rejected the application under Section 8 of the said Act mainly on two folds ground:-
10. First, the said application was not maintainable on the ground that the preemptor did not deposit the entire consideration money together with 10% compensation amount which is a precondition for filing an application for preemption under the said Act. Therefore, it was held by the learned trial judge that the application under Section 8 of the said Act was not maintainable. Secondly, on factual aspect it was found by the learned trial judge that the preemptor was not the contiguous land owner of the case land and therefore he was not entitled to preempt the case land.
11. Learned Appellate Court, by impugned judgment and order reversed the finding of the learned trial judge and held that the petitioner was 4 entitled to preempt the case property on the ground that she being the contiguous land owner of the property which was sold out in favour of the preemptee by his vendors.
12. Mr. Asish Sanyal, learned Advocate for the petitioner submits at the outset that right of preemption accrues only when a raiyat transfers a portion or share of a plot of land. By virtue of a deed of sale executed and registered on 26th December, 2000, the petitioner purchased ½ decimal land with a shop room thereon in plot No.878, appertaining to RS khatian No.250 of mouza Raghunathpur within P.S Mogra from one Gauranga Malo and his son Krishna Malo. He also refers to a deed of gift executed by the said Gauranga Malo in favour of his son Gabinda Malo on 14th August, 2000 by virtue of which the donor transferred remaining ½ decimal of land with a shop room thereon to his son Gabinda Malo. Thus, it is urged by Mr. Sanyal that Gabinda Malo is the contiguous land owner in respect of the case land which was sold out by the said Gauranga Malo and Krishna Malo in favour of the petitioner. The predecessor-in-interest of the opposite parties, namely Kanailal Karmakar was never a contiguous land owner of the case land. Therefore, the finding of the learned Appellate Court is perverse and cannot be sustained.
13. It is also argued by Mr. Sanyal that plot No.878 comprises of 1 decimal of land. Out of the said land Gauranga Malo and his son Krishna Malo transferred ½ decimal of land with a shop room to the petitioner and remaining ½ decimal of land was transferred to Gabinda Malo by his father Gauranga Malo by executing a deed of gift dated 14th August, 2000. Therefore, the entire plot of land was transferred by the original owners and under such circumstances, the predecessor-in-interest of the opposite parties had no right to preempt the case land.
14. Mr. Anit Kumar Rakshit, learned Advocate for the opposite parties, on the other hand submits that impugned sale in favour of petitioner by 5 the opposite parties No.2 and 3 was executed and registered on 26th December, 2000. The predecessor-in-interest of the opposite parties filed an application under Section 8 of the said Act on 22nd February, 2001. Therefore, the application is not barred by limitation.
15. In the said application, the preemptor stated that he owns land, adjacent to the case land on the western side. According to Mr. Rakshit the case of the petitioner is proved from the sale deed executed by opposite parties No.2 and 3 in favour of the petitioner. Schedule of the said deed shows that on the western side of the case land, the land of the predecessor-in-interest of the opposite parties is situated. Even in the schedule of the land which was transferred to Gabinda Malo by executing registered deed of gift by his father Gauranga Malo, there is a mention of land of Kanailal Karmakar, original petitioner and the predecessor-in- interest of the opposite parties, on its adjacent west.
16. Mr. Rakshit, learned Advocate for the opposite parties next draws my attention to the relevant portion of the impugned judgment wherefrom it is ascertained that on the prayer of the preemptor, the case land and the adjacent land of the preemptor were locally inspected by the trial court appointing an Advocate Commissioner. The Advocate Commissioner submitted his report that the predecessor-in-interest of the opposite parties is a contiguous land owner of the case land. Therefore, the learned court of appeal, according to Mr. Rakshit, correctly decided the case permitting the opposite parties to preempt the case land.
17. Having heard the submission made by learned Advocate for the parties and on from the materials on record, specially the documents annexed with the supplementary affidavit, it is not in dispute that the predecessor-in-interest of the opposite parties was the owner of the land situated on the adjacent west of the case land. He prayed for preemption as a contiguous land owner. The schedule of the impugned deed of sale in 6 favour of petitioner clearly shows that Kanailal Karmakar was in possession of a portion of land on the adjacent west of the case land. Under such circumstances, the learned First Appellate Court did not commit any error in holding the predecessor-in-interest of the opposite parties as contiguous land owner and permitting him to preempt the case land on such ground.
18. The learned trail judge held that the application under Section 8 of the said Act was not maintainable in view of the fact that the preemptor did not deposit the entire consideration money plus 10% of such consideration money as compensation. However, in Dwijapada Halder vs. Prafulla Chandra Halder reported in 76 CWN 784, it has been clearly held that an application for preemption under Section 8(1) cannot be rejected if the applicant made a short deposit at the time of filing of such application and it would be sufficient compliance of Section 8(1) of the Act if the preemptor deposits the balance of the consideration money when the Revenue Officer passes the final order or after the amount of the consideration money payable by the preemptor has been finally adjudicated by the Revenue Officer under Section 9(1) of the said Act. Subsequently, in Abdur Rahaman vs. Sk. Abu Bakar reported in 2016 (1) CHN (Cal) 319, this court further held that an application under Section 8 of the said Act is maintainable even when the short deposit is made and if a dispute is raised to the actual market value being less than what is shown as consideration money in the deed, it is a duty of the court to determine and/or ascertain the same. As such the court cannot straightway dismiss the preemption application merely on the ground of short deposit.
19. On this score also, the learned Appellate Court correctly held that a preemption case shall not fail for short deposit of consideration money by the preemptor.
720. In view of the above discussion, I do not find any ground to interfere with the impugned judgment and order.
21. The instant revision is thus dismissed on contest, however, without any cost.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.)