Calcutta High Court
Bhadreswar Bera vs Mathura Mohan Shaw And Ors. on 10 September, 2004
Equivalent citations: 2004(4)CHN349
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This application under Article 227 of the Constitution of India is at the instance of a pre-emptee in proceedings under Section 8 of the West Bengal Land Reforms Act (hereinafter referred to as the Act) and is directed against order dated 5th May, 2004 passed by the learned Additional District Judge, 1st Track Court, Chandernagore in Misc. Appeal No. 167 of 1995 thereby setting-aside Order No. 24 dated August 30, 1995 passed by the Munsif, 1st Court, Chandernagore in Misc. Case No. 10 of 1987.
2. The opposite party No.1 filed the aforesaid Misc. Case No. 10 of 1987 under Section 8 of the Act for pre-empting a sale transaction executed by opposite party Nos. 2 to 6 in favour of the present petitioner on the allegation that he is an adjoining owner of the plots involved in the said transaction.
3. There is no dispute that by a registered sale deed executed on 8th October, 1986 the opposite party Nos. 2 to 6 transferred two plots, namely, plot Nos. 1034 and 87 in favour of the present petitioner. The specific case of the pre-emptor is that he is the co-sharer of the adjoining plots, namely, plot Nos. 1033 and 85. The apposite party No. 1 claimed that the plot No. 1033 is adjoining to plot No. 1034 while plot No.85 is contiguous to plot No. 87.
4. The aforesaid application for pre-emption was opposed by the present petitioner thereby disputing the allegations made in the application for pre-emption. According to the petitioner, the opposite party No.1 had no share in plot No. 1033 and at the same time, those are not adjoining plots. It was further contended that the application was barred by limitation. The specific case of the petitioner was that plot No. 1033 although belonged to the father of the pre-emptor but the said plot was allotted to one Haradhan Saha, the brother of the pre-emptor and his name was published in the modified settlement record-of-right. As regards the ownership in plot No.85, it was, however, admitted that the pre-emptor got his father's share in plot No. 85 in lieu of disclaiming his share in plot No. 1033 and other plots but he is not in possession of that portion of the said plot No. 85 which is adjacent to plot No. 87 and consequently, he cannot be said to be the longest boundary man in respect of plot No.87 so as to claim pre-emption on the ground of adjoining ownership.
5. The learned Trial Judge on consideration of the materials on records, dismissed the application filed by the opposite party No.1- on the ground that plot No. 1033 was allotted in favour of brother of pre-emptor and as such, he had no share in the property. As regards plot No. 85 it was held that the petitioner was a co-sharer but other co-sharer was not made party and consequently, the petitioner was not entitled to pre-empt plot No.87 on the basis of his share in plot No. 85.
6. Being dissatisfied, the opposite party No. 1 preferred an appeal before the learned First Appellate Court below and by the order impugned herein, the said Court has set aside the order passed by the learned Trial Judge and has allowed the prayer for pre-emption with the finding that there was no partition between pre-emptor and his brother and that the petitioner is the co-sharer in both plot Nos. 1033 and 85. It may not be out of place to mention here that before the learned First Appellate Court below, on the application of the opposite party No. 1 under Order 41 Rule 27 of the Code of Civil Procedure, some additional documents, namely, certified copy of a deed dated 20th April, 1993, map of concerned mouza and four sheets of R. S. record-of-rights were marked as additional evidence. Similarly, original sale deed dated 8th October, 1986, attested copy of R.S. Khatian, L.R. Khatian were marked as Exhibits B, C and D on behalf of the present petitioner.
7. Being dissatisfied, the pre-emptee has come up with the present application under Article 227 of the Constitution of India.
8. Mr. Bagchi, the learned counsel appearing on behalf of the petitioner has made threefold submission before this Court. Mr. Bagchi contends that the pre-emptor having admitted that he is in possession of the adjoining plots by virtue of mutual arrangement with his brother, in view of definition of "co-sharer of a raiyat in a plot of land" as mentioned in Section 2 Sub-section (6) of the Act, an application for pre-emption is not maintainable as his instance. Mr. Bagchi contends that once a co-owner is found to be in possession of a demarcated portion of a plot of land, he cannot be said to be a co-sharer of a raiyat in a plot of land and as such, at his instance an application for pre-emption is not maintainable.
9. Mr. Bagchi next contends that in the absence of any evidence showing that the pre-emptor is in possession of those parts of plot Nos. 1033 and 85 which are adjoining to plot Nos. 1034 and 87 respectively, no order for pre-emption could be passed in favour of the pre-emptor.
10. Mr. Bagchi further contends that his client having subsequently acquired title to plot No. 1034 by way of a deed of gift from another co-sharer, at present he has become a co-sharer of the plot No. 1034 even without the help of the disputed transaction. Mr. Bagchi contends that in order to succeed in an application for pre-emption, the right of the pre-emptor must exist not only at the time of presentation of the application but should continue till the end of the proceedings. Therefore, according to him, at this stage, his client can oppose the application for pre-emption as another co-sharer of the plot on the basis of the subsequent deed of gift even without taking the aid of the title acquired by virtue of disputed transaction.
11. The aforesaid contentions raised by Mr. Bagchi have been seriously disputed by Mr. Mukherjee appearing on behalf of the pre-emptor. Mr. Mukherjee contends that it is now a settled law that for the purpose of maintaining an application for pre-emption on the ground of adjoining ownership, it is not necessary that the pre-emptor must prove that he is holding a particular portion adjoining the plot acquired by the pre-emptee. It would be sufficient, Mr. Mukherjee continues, if he is the co-sharer of the adjoining plot. Mr. Mukherjee contends that amended definition contained in Section 2 Sub-section (6) of the Act cannot help the present petitioner in any way, inasmuch as, it has been established that there has been no partition between the pre-emptor and his brother in accordance with the provisions contained in Section 14 of the Act and as such the pre-emptor has un-demarcated interest in the entire adjoining plot of land. Regarding the last contention of Mr. Bagchi, Mr. Mukherjee submits that if by a subsequent transaction, a person becomes co-sharer of the plots covered by the transaction sought to be pre-empted such fact cannot enable him to resist the application for pre-emption. He, thus, prays for dismissal of the application.
12. The first question that arises for determination in this application is whether in view of amended definition contained in Section 2(6) of the Act, the pre-emptor has ceased to be co-sharer of the plot, simply because, he is in occupation of a portion of the plot by mutual arrangement with the other co-sharer.
13. According to Section 2(6), the "co-sharer of a raiyat in a plot of land" means a person other than the raiyat, who has an un-demarcated interest in the plot of land along with raiyat. In the case before us, it has been established that there is no registered deed of partition between the pre-emptor and his brother, The pre-emptor has also given evidence stating that by mutual oral arrangement, he is in possession of a particular portion. There is no two-opinion on the position of law that if statute prohibits partition of a particular class of property except by way of registered document, then unless partition is effected by a registered deed there can be no partition in accordance with law even if, the parties actually made oral partition. In such a case, if the co-sharers remain in occupation of a particular demarcated portion by such mutual arrangement, for such arrangement their un-demarcated interest in the plot is not extinguished. In the eye of law, they remain co-sharer so long there is no registered deed of partition notwithstanding the fact that each of the co-sharers are in occupation of a particular demarcated portion. Therefore, so long there is no partition in accordance with the provisions contained in Section 14 of the Act, the pre-emptor, in spite of his possession in a demarcated portion of plot Nos. 1033 and 85, remains a co-sharer of those plot of land and has un-demarcated interest in the entire plots in question. I, thus, find no substance in the aforesaid contention raised by Mr. Bagchi.
14. The next question is whether it is necessary for a pre-emptor to prove that he is in actual possession of the portion of the adjoining plot which is immediately contiguous to the land transferred by the disputed transaction.
15. In my view, all that a pre-emptor is required to prove in order to get an order of pre-emption on the ground of adjoining ownership of the plot is that a portion or share of a plot of a land of raiyat, is transferred to any other person other than a co-sharer of a raiyat in the plot of land and that the pre-emptor is a raiyat possessing land adjoining such plot of land. Therefore, it is not necessary that the pre-emptor must be in possession of the contiguous portion of the disputed plot. The aforesaid point has already been concluded by a decision of this Court in the case of Bula Kundu vs. Nirmal Kumar Kundu, reported in 2000(1) CHN page 506.
16. The amendment in the Act by incorporating the words "plot of land of a raiyat" instead of the words "holding of a raiyat" has not altered the position of law in any way.
17. The last point taken by Mr. Bagchi is equally devoid of any substance. At the time of filing the application of pre-emption of the transaction, the present petitioner was not a co-sharer of the plot and that is why the opposite party No. 1 applied for pre-emption. If subsequently, by another transaction, the petitioner becomes co-sharer, such fact cannot extinguish the right of a pre-emptor. It is true that in order to succeed in an application for pre-emption, the pre-emptor must have such right even till the passing of the order of pre-emption which means that if during the pendency of the pre-emption proceedings, the pre-emptor himself loses his right in the land on the basis of which he claimed pre-emption, in such a case, his application will fail. But right of a pre-emptor which has accrued to pre-empt a particular transaction cannot be frustrated by the pre-emptee by acquisition of co-sharership in the plot by virtue of a subsequent transaction. If I accept the contention of Mr. Bagchi, then all applications for pre-emption can be upset by acquisition of further share from the vendor or other co-sharers of the plot.
18. AH the points taken by Mr. Bagchi having failed, I find no merit in this application and the same is dismissed with costs which I assess at 30 G.Ms. to be paid by the petitioner to the opposite party No. 1.