Calcutta High Court (Appellete Side)
Smt. Shyamali Bera vs Sri Nata Krishna Parua And Another on 8 October, 2013
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
C. O. No.671 of 2011
Smt. Shyamali Bera
Versus
Sri Nata Krishna Parua and another
For the petitioner: Mr. Amit Kumar Pan
Mr. Shubhadeep Biswas
Mr. Ratul Das
Mr. Debrup Bhattacharyya
For the opposite party : Mr. Saptangshu Basu
No.1 Mr. Imtiaj Ahmed
Mr. Pankaj Singh
For the Opposite party : Mr. Debasish Roy
No.2 Mr. Subimal Ghorai
Judgement on: 8th October, 2013
Tarun Kumar Gupta, J.:-
The pre-emptee has filed this application under Article 227 of the
Constitution of India challenging the order dated 15th of December, 2010
passed by learned Additional District and Sessions Judge, Fast Track
third Court, Purba Medinipur at Tamluk in Misc. Appeal No.3 of 2009
/18 of 2009 affirming the order of pre-emption being No.51 dated 17th
February, 2009 passed by learned Civil Judge (Junior Division) 1st Court
Tamluk in J. Misc. Case No.28 of 2005.
The O.P. pre-emptors filed said suit for pre-emption under
Section 8 read with Section 9 of the West Bengal Land Reforms Act,
1955 (hereafter to be referred as the Act of 1955) alleging that one Satish
Chandra Mitra was the original owner of 41 decimals of land of suit plot
No.771. Three decimals of land of said plot was acquired by the State
Government. After death of Satish Chandra Mitra his legal heirs sold out
entire 38 decimals of land to the pre-emptors Sri Nata Krishna Parua and
Sri Srikrishna Parua and their other two brothers namely Bata Krishna
Parua and Harekrishna Parua by several kobalas. The four brothers were
in joint possession of the suit plot 771. One of the co-sharers namely
Harekrishna sold out 5.5 decimals of suit plot to the pre-emptee Shyamali
Bera being stranger purchaser by a kobala dated 30th of March, 2005
which was registered on 19th September, 2005. No notice under Section
5 of the Act of 1955 was served upon the pre-emptors being co-sharers of
the suit plot. Though the consideration money was noted in said kobala
as Rs.10 lakhs but the actual consideration money passed was only Rs.4
lakhs. Accordingly the pre-emptors prayed for pre-emption of the suit
land after depositing Rs.4 lakhs together with 10% totaling Rs.4,40,000/-
in the court below.
The present petitioner pre-emptee contested said pre-emption case
by filing a written objection denying material allegation of the pre-
emption petition and contending inter alia that her vendor Harekrishna
Parua was in possession of his share of land after a partition between the
co-sharers and sold out the suit land measuring about 5.5 decimals on
receipt of a consideration money of Rs.10 lakhs after pre-emptor's
refusal to purchase said land at the market price. The vendor of the pre-
emptee also gifted 0.17 decimals of land of the suit plot to the pre-emptee
through a deed of gift dated 16th of February, 2006. The vendor
Harekrishna's name was recorded in the record of right and after
purchase the name of the pre-emptee was recorded in the record of right.
The pre-emptors were no longer co-sharers of the suit plot after the
partition, and rather the pre-emptee became a co-sharer of the same on
the strength of said deed of gift dated 16.02.2006. The application for
pre-emption was liable to be dismissed.
Learned trial court allowed the application for pre-emption by
holding that the pre-emptors were co-sharers of the suit plot and that no
notice of transfer was served upon the pre-emptors before selling out the
suit land to the pe-emptee, third party purchaser. Learned trial court
further held that the alleged deed of gift dated 16th of February, 2006
relating to 0.17 decimal of land pertaining to suit plot executed by
Harekrishna in favour of the pre-emptee was executed just to frustrate the
application of pre-emption filed on 23rd of November, 2005. Learned
trial court further held that the consideration money passed at the time of
sale of the suit property was Rs.10 lakhs and that the pre-emptors would
be entitled to get an order of pre-emption only after depositing the
balance consideration money together with 10% thereupon. Said order
of pre-emption dated 17th of February, 2009 was challenged by the pre-
emptee in the appeal court. Said Misc. appeal being No 3 of 2009 /18 of
2009 was dismissed on contest. Hence is this revisional application.
Mr. Amit Kumar Pan, learned counsel appearing for the pre-
emptee has assailed the judgment of lower courts on the ground that the
courts below failed to appreciate the evidence on record in their proper
perspective. According to him, there was a deed of settlement between
the four brothers duly signed by all of them. He next submits that in
terms of said deed of settlement four brothers started to possess their
respective portions exclusively and the record of right was also published
in the name of pre-emptee's vendor Harekrishna showing exclusive
possession and ownership. He next submits that after purchase the name
of the pre-emptee was also recorded in the record of right. He further
submits that the pre-emptors tried to challenge the deed of gift dated
16.2.2006. On that score they filed a specific suit being Title Suit No.55 of 2006 but without any success. They preferred an appeal being Title Appeal No.02 of 2009 which was also dismissed on contest. According to him, said judgments will establish that the deed of gift dated 16th February, 2006 was a genuine document. He next submits that on the strength of said deed of gift the pre-emptee also became a co-sharer of the suit plot. A transfer by deed of gift is outside the purview of pre- emption in view of Section 8 (2) (b) of the Act of 1955. He lastly submits that in para 4 (d) of the affidavit-in-opposition filed by the pre-emptors it was admitted that they were unwilling to purchase the suit land at a consideration money of Rs.10 lakhs. According to him, in view of said admission the application for pre-emption was not maintainable. Accordingly, he prays for setting aside the order of pre-emption as granted by learned trial court and affirmed by the appellate court.
Mr. Saptangshu Basu appearing for O. P. No.1 (one of the pre- emptors), on the other hand, submits that the document of amicable arrangement between the four brothers for the convenience of possession cannot be treated as a valid partition. According to him, in terms of Section 14 of the Act of 1955 a partition can only be effected among raiyats after coming into force of the said Act, either through a court decree or through a registered document. He next submits that as said document of settlement was not a registered one it did not effect partition of the suit plot between the co-sharers by metes and bounds and that suit plot remained and continued to remain joint properties of four brothers.
He next submits that noting the name of a person in the record of right exclusively only shows possession and nothing more. He next submits that even if the deed of gift dated 16th of February, 2006 relating to a portion of the suit plot is accepted to be a valid document of gift still it cannot stand in the way of pre-emption as the pre-emption case was filed before execution of said deed of gift. He next submits that an affidavit-in-opposition as referred by learned counsel for the pre-emptee was not pressed into service by the pre-emptors. He further submits that even if it is admitted for argument's sake that the pre-emptors later on learnt about said sale and were unwilling to purchase the same at a consideration amount of Rs.10 lakhs but that cannot wipe out the necessity of giving notice as envisaged under Section 5 (4) of the Act of 1955. According to him, there was no evidence to show that any notice under Section 5(4) of the Act of 1955 was served upon the pre-emptors before executing the sale deed dated 19th of March, 2005. Lastly he submits that this court of revision should not interfere with concurrent findings of fact of courts below in absence of any glaring defect in the order impugned.
The admitted positions of this case may be summarized as follows:-
(1) The pre-emptors together with their two brothers including the pre-emptee's vendor Harekrishna jointly purchased the suit plot from the original owners.
(2) While the pre-emptors and their two brothers were in joint possession of the suit plot they effected one deed of settlement for convenience of possession.
(3) Said deed of settlement was not a registered document. (4) The pre-emptee was a third party purchaser. (5) Harekrishna sold out the suit land measuring about 5.5 decimals from a portion of the suit plot to the pre-emptee through a kobala dated 30th of March, 2005 which was registered on 19th of September, 2005 wherein the consideration money was shown as Rs.10 lakhs. (6) The pre-emptors filed a case (J. Misc. Case No. 28 of 2005) praying for pre-emption on 23rd of November, 2005. (7) The pre-emptors claimed that actual sale price in said kobala dated 30.03.2005 was Rs.4 lakhs and accordingly deposited said amount together with 10% thereof in the trial court. (8) Harekrishna being vendor of the pre-emptee executed a deed of gift dated 16th of February, 2006 in favour of pre-emptee showing gift of .17 decimals of land in the suit plot.
In terms of Section 14 of the Act of 1955 a partition can only be effected amongst co-sharers either through a court decree or through a registered document. Admittedly, the deed of settlement (Ext.B), neither being a registered document nor being a court decree, was not a document of valid partition in terms of Section 14 of said Act of 1955. In the absence of a valid document of partition of the suit plot amongst the co-sharers namely four brothers including the vendor of the pre-emptee, it cannot be said that there was effective partition of the suit plot amongst the four co-sharers. It is true that a separate record of right was published in the name of pre-emptee's vendor Harekrishna and later on in the name of pre-emptee purchaser, but record of right is only a document of possession. It can at best show that the pre-emptee's vendor was in possession of the land recorded against his name in the record of right in terms of the document of settlement but neither said document of settlement nor the record of right can effect partition of the suit plot by metes and bounds between the four co-sharer brothers. As such, the suit plot continued to be a joint property of four co-sharer brothers. In this connection reliance can be placed on a case law reported in 2004 (4) CHN 349 (Bhadreswar Bera vs. Mathura Mohan Shaw & Ors.) wherein it was specifically held that unless a partition is effected by way of a registered document, interest in land is not extinguished even though possession by mutual arrangement is demarcated. During evidence no document could be filed to show that any notice in terms of Section 5(4) of the Act of 1955 was served upon the pre-emptors before effecting the impugned sale on 30th of October, 2005 in favour of the pre-emptee. The averment that the pre-emptors were not willing to purchase the suit property at an amount of Rs.10 lakhs, will not wipe away the pre-emptors' right of filing an application for pre-emption. If it was established that there was a notice under Section 5 (4) of the Act of 1955 duly served upon the pre-emptors before executing the disputed sale deed on 30th of March, 2005 then only the application of pre-emption could have been challenged.
There is no denial that vendor Harekrishna later on executed one deed of gift (Ext.B) dated 16th February, 2006 by gifting .17 decimals of land in the suit plot in favour of the pre-emptee. It is true that said deed of gift dated 16th February, 2006 has been well established to be a deed of gift and not a deed of sale in disguise of a deed of gift in a court of law and affirmed up to the level of appellate forum. But such deed of gift cannot stand in the way of the application for pre-emption filed by the pre-emptors in this case. The sale sought to be pre-empted was effected on 30th March, 2005 and was registered on 19th of September, 2005. The suit for pre-emption was filed on 23rd of September, 2005. As such, on the date of filing of the application for pre-emption the pre-emptee was not a co-sharer of the suit plot, and was rather a stranger purchaser. If that be the factual aspects then said deed of gift dated 16.02.2006 had no effect on the application of pre-emption.
Again Section 8 (2) (b) of the Act of 1955 prohibiting pre-emption regarding a transfer through gift is of no consequence as the application for pre-emption was filed in respect of the property involved in the deed of sale dated 30th of March, 2005 and not the deed of gift dated 16.02.2009. Accordingly, I am of the opinion that the concurrent findings of fact of learned courts below were based on evidence and do not call for interference by this court in exercise of its extraordinary jurisdiction under Article 227 of the Constitution of India.
As a result, the revisional application is hereby dismissed on contest.
However, I pass no order as to costs.
Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.) later 08.10.2013 Let the lower courts' records be sent to the Court concerned by special messenger at the cost of the opposite party Nos. 1 and 2.
Learned advocate, Mr. Subimal Ghorai appearing for the opposite parites, undertakes to file said cost by tomorrow.
On depositing said cost, office should return the lower courts' records to the court concerned through special messenger within a week after the puja vacation.
Learned advocate, Mr. Debrup Bhattacharyya appearing for the petitioner-pre-emptee, prays for stay of the impugned judgment.
The prayer is considered and refused.
(Tarun Kumar Gupta, J.)