Calcutta High Court (Appellete Side)
Soumen Pramanik & Anr vs Subhendu Pramanik & Ors on 16 July, 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. 2417 of 2013 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Soumen Pramanik & anr.
Versus Subhendu Pramanik & ors.
For the petitioners: Mr. S.C. Karar.
For the opposite parties: Mr. A.K. Samanta, Mr. Basudev Gayen.
Heard On: 11.07.2013.
Judgement On: July 16, 2013.
Prasenjit Mandal, J.: This application is at the instance of the pre-emptees and is directed against the order dated June 13, 2013 passed by the learned Additional District & Sessions Judge, Fast Track 2nd Court, Tamluk in Misc. Appeal No.50 of 2005 thereby affirming the order of the pre-emption passed by the learned Trial Judge in Misc. Pre-emption Case No.44 of 2003.
The question is whether the Courts below are justified in arriving at a concurrent finding that the pre-emptors/opposite parties herein have fulfilled the conditions for pre-emption as provided in Sections 8 & 9 of the West Bengal Premises Tenancy Act, 1955.
Section 8 of the Pre-emption Act has undergone a change in the year 2000 and according to the new provisions of Section 8 of the West Bengal Land Reforms Act, if a portion or share of a plot of land of a raiyat is transferred to any person other than a co-sharer of a raiyat in the plot of land, an application for pre- emption will lie under certain other terms and conditions.
In the instant case, the two plots, namely, Plot Nos.760 & 761 as described in Schedule 'Kha' to the plaint measuring about 53 decimals of land originally belonged to three persons, namely, Netai Pramanik, Kishori Pramanik and Banamali/Radheshyam Pramanik having 1/3rd share each over the total area of 53 decimals of land. After the death of Kishori, his share had devolved upon his legal heirs who sold the same to one Radhanath Mondal and after the death of Radhanath Mondal, his share had again been re-sold to the pre-emptors by a deed of kobala dated November 14, 1999.
The lands in case which have been described in Schedule 'Ka' originally belonged to Netai who had transferred the same to his three sons by executing a 'Nirupanpatra' and from them the opposite party nos.1 & 2 had purchased the 'Ka' schedule property by a deed of kobala dated August 4, 2003 and registered on September 2, 2003.
The pre-emptors have contended that they became the co-sharers of the 'Kha' schedule property by purchase from the heirs of Radhanath who purchased the same from the heirs Kishori Pramanik.
In the instant case, as per defence version, the three sons, namely, Netai, Kishori, Banamali/Radheshyam were three separate raiyats and their lands had been demarcated long time back and the khatian had been prepared accordingly long time back, though no materials including record of rights had been furnished by them before this Bench.
Anyway, both the Courts below have held that the pre-emptors became the co-sharers by way of such purchase. If the record of rights justifies declaration of separate share in respect of the 'Kha' Schedule property amongst the three original owners, they became the independent raiyats under the state. So, if the pre- emptors had purchased the entire share of Kishori via the heirs of Radhanath Mondal, the question of pre-emption, in my view, does not arise at all.
It is the specific contention of the pre-emptees that the pre-emptors are neither the co-sharers nor the adjacent owners of the suit property. The evidence adduced before the learned Trial Judge has not been placed before this Bench.
On perusal of the copy of the judgment as furnished in the application, it does not appear that the learned Courts below have dealt with the question whether a portion or a share of a plot of a raiyat had been transferred to the pre-emptees or not. There is no clear finding whether the pre-emptees are the adjacent land- owners of the lands in case. There is no clear observation that the pre-emptors are the undivided co- sharers in the plots of land wherefrom a portion or share had been sold to the stranger purchasers. Therefore, the defence stance has not been properly considered by the Lower Court.
Therefore, in my view, it is difficult to affirm the findings of the Courts below. The materials as available in the record, i.e., the impugned judgment, in my view, are not enough to conclude that the provisions of Section 8 of the West Bengal Land Reforms Act have been complied with.
Mr. S.C. Karar, learned Advocate appearing for the pre-emptees, has referred to the decisions of Digambar Adhar Patil v. Devram Girdhar Patil (died) & anr. reported in AIR 1995 SC 1728 and Sk. Samser Ali v. Serina Bibi reported in 2012(2) CHN (CAL) 694 to show that when record of rights are prepared long time back, the person's name therein should be deemed to be the owner of the land. Since partition has been effected amongst the three persons long before the enactment of provisions of Section 14 of the West Bengal Land Reforms Act which became effective from August 7, 1969, the separate entries prior to that date cannot be taken as joint property.
In that view of the matter, I am of the opinion that I have no other alternative but to set aside the orders passed by the Courts below and the learned Trial Judge shall be directed to hear out the matter afresh and he shall consider whether the pre-emptors have complied with the provisions of Sections 8 & 9 of the 1955 Act for getting an order of pre-emption.
At the same time, in coming to the conclusion on that matter, he is also directed to consider the defence stance as recorded above. He shall dispose of the application for pre-emption within two months from the date of communication of the order to him without fail. If necessary, he may take up the matter on day-to-day basis hearing to ensure the disposal of the matter afresh within the time mentioned above.
This application is disposed of in the manner indicated above.
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.)