Calcutta High Court
Smt. Bula Kundu vs Sri Nirmal Kumar Kundu & Anr. on 2 March, 2000
Equivalent citations: (2000)2CALLT221(HC), 2000(1)CHN505
Author: B. Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT
B. Bhattacharya. J.
1. This revisional application under section 115 of the Code of Civil Procedure is at the Instance of an opposite party in a proceeding for pre-emption under section 8 of the West Bengal Land Reforms Act ("Act") and is directed against order dated September 23, 1999 passed by the learned Additional District Judge, 2nd Court, Midnapore in Judicial Misc. Appeal No. 68 of 1994 thereby reversing order dated April 21, 1994 passed by the learned Munsif, Garhbeta in Judicial Misc. Case No. 22 of 1991.
2. The opposite parties filed the aforesaid Misc. Case No. 22 of 1991 under section 8 of the Act for pre-emption of sale effected through a registered deed dated March 27, 1989 in favour of the present petitioner on the ground of adjoining ownership.
3. The aforesaid application was contested by the present petitioner by filing written objection thereby contending, inter alia, that the opposite parties were merely co-sharers of adjoining holding but could not be said to be adjoining owners of the property transferred and as such the application was liable to be dismissed.
4. The learned trial Judge on consideration of the materials on record held that in view of the fact that the present petitioner purchased only a portion of a holding and the opposite parties being co-sharers of the adjoining holding which was yet to be partitioned by metes and bounds, it could not be said that the opposite parties were adjoining owners of the land actually transferred by the deed in question and accordingly dismissed the application.
5. Being dissatisfied, the opposite parties preferred an appeal being Misc. Appeal No. 68 of 1994 and by the order impugned herein the learned first appellate Court below has set aside the order passed by the learned trial Judge and allowed the application for pre-emption on the ground of adjoining ownership.
6. Being dissatisfied, the petitioner has come up in revision.
7. Mr. Banerjee, the learned counsel appearing on behalf of the petitioner has raised two points in support of this application.
8. Firstly, Mr. Banerjee contends that the opposite parties themselves having admitted in evidence that they are co-sharers of the adjoining holding and that there was no partition among the co-sharers of that holding, it cannot be said that the opposite parties are adjoining owners of the land covered by the sale sought to be pre-empted.
9. Mr. Banerjee next contends that the petitioner by the said transaction having purchased only a portion of the holding of his vendor, and there being no common bundary between the purchased portion and the holding of the opposite parlies, the application for pre-emption was not maintainable.
In support of such contention Mr. Banerjee has relied upon the following decisions of this Court :
(a) Smt. Rekha Rani Maity and Ors. v. Jagatpall Sashmal; 1995 WBLR (Cal) Page 263,
(b) Dushasan Kayal v. Sandharani Das: 1997(2) CLT page 107,
(c) Khagandra Nath Panda v. Gaya Prasad Sahu; 1987(1) CHN page 88,
10. In the case of Rekha Rani Maity and Ors. (supra) it was contended on behalf of the pre-emptee that on the date of filing of the application for pre-emption, the pre-emptee had already became a co-sharer in the disputed holding by virtue of a subsequent deed of exchange which was registered on the same day along with the deed sought to be pre-empted and as such the pre-emption application was not maintainable. It was contended therein that in order to obtain an order for pre-emption it was necessary that the conditions for maintaining an application for preemption should exist not only at the time of disputed transaction but also at the time of presentation of the proceeding or at the time of passing final order. This Court accepted such contention and held that in view of the fact that the pre-emptee became a co-sharer of the holding by virtue of subsequent deed of exchange, he ceased to be a stranger of the holding.
11. In the said decision in paragraph 11, however, Mallick, J by relying upon the decision of Kedarnath Panchandhoyee and Ors. v. Nagendra Nath Mahapatra and Ors. reported in 1980(1) CLJ page 395 further observed that unless there was partition. It could not be said that any specific portion of the adjoining holding was in possession of the pre-emtor and as such It could not be held that pre-emptors were holding land adjoining the disputed land.
12. It may not be out of place to mention here that in the case of Kedarnath Panchadhoyee (supra) relied upon by Mallick, J both the pre-emptor and the pre-emptee were co-sharers of the adjoining holding and there was no partition between them. Under the aforesaid circumstances D.C. Chakraborty, J held that the application for pre-emption on the ground of adjoining ownership was not maintainable. Such was not the case in Rekha Rani Maity's case and as such, the principles laid down in the case of Kedamath Panchadhoyee could not be applied in that case. As the points raised by the pre-emptee in Rekha Rani Maity's case were different, I make no observation as regards the ultimate conclusion of Mallick, J in the said case.
13. In the case of Dushasan Kayal (supra), the pre-emptor obtained a portion of plot No. 222 from her husband and thus became co-sharer of that plot Subsequently, when the husband of the pre-emptor sold a further Indefinite portion of the land of the same Plot No. 222 to the pre-emptee, she came up with an application for pre-emption the ground of adjoining ownership. in such a fact, Mallick, J rejected the prayer for pre-emption, firstly on the ground that in the absence of registered deed of partition, Plot No. 222 remained undivided and as such the pre-emptor could not be held to be adjoining owner and secondly on the ground that the property transferred was vague and indefinite. Therefore, the decision in the case of Dushasan Kayal cannot in any way benefit Mr. Banerjee's client.
14. In the case of Khagendra Nath Panda v. Gaya Prasad Sahu (supra). an application for pre-emption was filed both on the gronds of co-shareshlp and adjoining ownership. Both the Courts below having rejected such application, pre-emptor came up in revision. Mitra, J (as His Lordship then was) in the fact of the case held that the petitioner could not be a co-sharer. So far the ground of adjoining ownership was concerned, His Lordship held that such claim was barred by limitation. Even on merit, His Lordship in the absence of any previous partition, applied the principles laid down in the case of Kedamath Panchadhoyee (supra) and held that the petitioner could not be said to be adjoining owner.
15. Therefore, none of the aforesaid three decisions cited by Mr. Banerjee can be regarded as an authority for the proposition of law that in order to get relief for pre-emption on the ground of adjoining ownership, the applicant or the applicants must be full owner of the adjoining holding or that he or they must have common boundary line with the portion of the land transfered by the transaction sought to be pre-empted.
16. in my opinion, in order to maintain an application for pre-emption on the ground of adjoining ownership it is not necessary that the applicant must be the full owner of the adjoining holding. Even a co-sharer of the adjoining holding may apply, for pre-emption. Similarly, I do not find any substance in the contention of Mr. Banerjee that pre-emptor must have land adjoining the portion of the land which has been transferred by the disputed transaction. The language of section 8 of the Act makes it clear that the applicant for pre-emption must be adjoining owner of the holding part of which has been transferred by the disputed transaction. Therefore, even if a holding consists of three plots eg. (a), (b) and (c) and the pre-empter is a co-sharer of the adjoining holding consisting of three different plots eg. (d), (e) and (f) and If by the disputed transaction a part of plot (a) has been transferred, a co-sharer of holding consisting of plot Nos. (d), (e) and (f) can maintain such application although there is no common boundary line between the plot (a) of the holding consisting of plot Nos. (a), (b), (c) and the holding consisting of plot Nos. (d), (e) and (0. As pointed out by this Court in the case of Ishan Chandra Ghatak v. Sasadhar Maity reported in 82 CWN page 195, relied upon by Mr. Roychowdhury appearing on behalf of the opposite parties, in section 8 there is no qualifying word to 'holding' and thus it is not necessary that the pre-emtor must be holding land adjoining the actual land sold by the disputed transaction.
17. Mr. Banerjee in this connection has strongly relied upon the language employed in the third proviso of the section 8 of the Act and has contended that the said proviso has manifested the Intention of the legislature that the application for pre-emption on the ground of adjoining ownership must have common boundary with land transferred.
18. For the purpose of appreciating the aforesaid contention of Mr. Banerjee, the third proviso to section 8 of the Act is quoted hereunder :
"Provided also that as amongst raiyat possessing lands adjoining such holding preference shall be given to the ralyat having the longest common boundary with the land transferred."
19. A plain reading of section 8 of the Act Including the aforementioned third proviso Indicates in clear terms that for the purpose of maintaining an application for pre-emption on the ground adjoining ownership, the applicant must be raiyat possessing land adjoining the holding, a portion or share whereof is transferred to a stranger. But in a situation where several applications have been filed by different adjoining owners of such holding, preference shall be given to the applicants who have common boundary with the land transferred, thus excluding those applicants who have no such common boundary and among the applicants having common boundary with the land transferred, the raiyat having the longest boundary with the land transferred will be given preference. But section 8 of the Act does not intend that all the applicants in addition to being "a raiyat possessing lands adjoining such holding should also have common boundary with the land transferred.
20. If none of the applicants has common boundary with the land transferred, although they are "raiyat possessing lands adjoining such holding", the Court may apportion the portion or share of the holding transferred in such manner or on such terms as it deems equitable as authorised by section 9(3) of the Act.
21. Thus, I find no substance in the points raised by Mr. Banerjee.
The opposite parties being raiyats possessing land adjoining the holding of the vendor of the petitioner are entitled to maintain the application for pre-emption notwithstanding the fact that their other co-sharers of holding have not Joined with them or that they cannot be described as raiyats having common boundary with the land transferred. The learned Court of appeal below thus did not commit any illegality in allowing the application for pre-emption.
The revisional application thus falls.
No costs
22. Application fails