Calcutta High Court (Appellete Side)
Molu Ali Saha@Maishu Ali Saha vs Bimal Kumar Dinda & Ors on 30 June, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
(Appellate Side)
PRESENT:
The Hon'ble Justice Mir Dara Sheko.
C.O. No. 88 of 2016
Molu Ali Saha@Maishu Ali Saha
-Versus-
Bimal Kumar Dinda & Ors.
For the Petitioner : Mr. Sabyasachi Bhattacharya,
Mr. Amit Baran Dash
For the Opposite Parties: Mr. K.K. Bera,
Mr. Krishendu Bera,
Heard on : 13.06.2017
Judgment on : 30th June, 2017.
Mir Dara Sheko, J. : 1. The revisional application has
been directed assailing the judgment dated 10th
September, 2015 delivered by Learned Additional
District Judge, 2nd Court, Contai in Misc. Appeal No. 4
of 2014 affirming the order dated 30th July, 2013
passed by learned Civil Judge (Junior Division) Contai
by which the J. Misc. Case No. 27 of 2007 (for pre-
emption) was dismissed declining the prayer of pre-
emption on the ground of vicinage as was sought for by
the petitioner-appellant, who will be called on hereafter
only as the pre-emptor.
2. Fact, in brief as contended by the pre-emptor Molu
Ali Shah that there was a registered partition deed on
28th November, 1954 between his predecessor-in-
interest, and, cousin Sadhu Ali Shah got the
demarcated "Ka" schedule property mentioned in said
deed, whereas, the property, described in "Chha"
schedule of said deed, situates on adjacent western
side of said 'Ka' schedule property, was allotted to the
share of the pre-emptor. Since said Sadhu Ali without
notice sold the demarcated case property appertained
to plot nos. 848 and 849 on 18th March
1984(registration of which was complete on 17th
September, 1990) to the strangers/opposite party nos.
1 to 5 respondents, who jointly will be called on
hereafter only as the pre-emptees. Molu Ali Shah thereby filed the application for pre-emption within time on the ground of vicinage by depositing the requisite amount in Court.
3. In turn, as reveals from the Lower Court's record the pre-emptee nos. 1 & 2 (OP. Nos. 1 & 2), nos. 3 and 4 (OP Nos. 3 & 4) and no. 5 (OP. No.5) with a view to contest in said pre-emption case filed separate written objections respectively, of course, their defence is all the same by which the right of pre-emption of the pre- emptor on the ground of vicinage in the case-property was denied, and, setting also challenge against the said partition deed to caption the same as void on the ground that since the pre-emptor was minor at the time of the partition deed his representation in said partition deed was held through his mother.
4. Further defence was that by the impugned deed of sale they had purchased 61/7 decimal and 2 1/7 decimals jointly towards extreme eastern side of plot nos. 848 and 849 leaving 1/7 decimals on its western side lying in between the portion allotted to the pre- emptor and the portion purchased by the pre-emptees, and, said vacant 1/7 decimal has been used by the pre-emptees as their own passage. Therefore the right of pre-emption on the ground of vicinage would not be available due to existence of said strip of 1/7th decimal of land in between the land of pre-emptor and pre- emptees.
5. Further stated that in the impugned deed, by mistake of the scribe the situation of sold out portion was wrongly mentioned on the adjacent eastern side showing said 1/7th decimals at its end i.e. on further extreme eastern side. Such mistake in the schedule of the impugned deed dated 14th March, 1984 was rectified by filing suit and obtaining an ex parte decree in said Title suit no. 78 of 1993, which was filed by the opposite parties(pre-emptees) against Sadhu Ali Shah (since deceased) and others.
6. At the very outset this Court observed that the pre- emptees have no competence to challenge legality of the partition deed of 1954 on any ground, far to speak of on the ground that the pre-emptor was then a minor and under Mohamedan Law said minor would not be represented by his mother.
7. The trial Court as well as the Lower Appellate Court relying on the ex parte decree of Title Suit No. 78 of 1993 and by holding that since the strip of land, being used as passage, was lying in between the property belonging to the pre-emptor and pre-emptees, the pre- emptor would not be a contiguous landowner and therefore prayer of pre-emption was declined.
8. Mr. Sabyasachi Bhattacharya representing the pre- emptor argued that the ex parte decree would not be binding upon his client, since his client the pre-emptor was not made a party to that suit. Submitted that said suit was filed by the subsequent transferees along with two of five original purchasers against Sadhu Ali Shah and three of the remaining original purchasers and others as an eye wash to frustrate the statutory right of pre-emption of his client. Added further, that said ex- parte decree was created collusively, since after getting ex-parte decree in the suit one J. Misc. Case under Order IX Rule 13 of the Code of Civil Procedure was made to file in the names of heirs of original vendor of the impugned and said misc. case has been kept still pending.
9. Mr. Bhattacharya argued that right of pre-emption in favour of the pre-emptor having been accrued on the very date of execution and registration of the impugned deed, the pre-emptor would have to be protected under Section 9(2) of the West Bengal Land Reforms Act read with Section 26 of the Specific Relief Act.
10. Submitted further that both the subordinate courts failed to appreciate that even said decree in Title Suit No. 78 of 1993 did not change the adjoining status of the pre-emptor since by said decree there was no order of rectification in the schedule of the impugned deed following the practice and procedure laid down in Section 26 of the Specific Relief Act. Therefore, according to him, the order and judgment of learned Courts below having caused sufferance without any legal reason, the order and judgment of both the courts should be set aside and the revisional application should be allowed.
11. Mr. K.K. Bera learned Senior Counsel, representing the opposite parties/pre-emptees per contra submitted that the pre-emptor had attempted to amend his application by challenging validity of the ex parte decree of the title suit 78 of 1993, but, said prayer of amendment was rejected by learned Trial Court, and said order of rejection was also tested by filing revisional application before this Court which also was rejected. Submitted therefore, that, while by the aforesaid decree the schedule of the impugned deed, what was actually sold by the impugned deed, was rectified, and, since the pre-emptor did not take any step to set aside said decree of the suit rectifying the schedule, and consequently between the property of both sides there being a strip of land measuring 1/7th decimal in between the allotted land of the pre-emptor and purchased portion of the pre-emptees in the same plots of land appertained to plot nos. 848 and 849, by virtue of said ex parte decree, the pre-emptor cannot be said anymore as contiguous landowner to the property purchased by the pre-emptees. Mr. Bera therefore submitted to dismiss the revisional application affirming the order and judgment delivered by both the learned Courts below, since under Article 227 of the Constitution of India this Court would not re-evaluate the evidence on record to take any different view by attempting to traverse whether there was any lapses in the decision making process.
Mr. Bera to justify merit of above submissions relied upon the following cases:-
(a) Smt. Rekha Rani Maity & Ors. Vs. Jagatpati Sashmal reported in 1995 WBLR (Cal)263.
(b)Sri Dushasan Kayal Vs. Smt.
Sandhyarani Das.
(c) Bangsodhar Roy Vs. Smt. Puspa Mondal & Ors. reported in (2014) 1 WBLR (Cal) 907
12. Answer to such lis is to be given on the following points:-
(i) Whether rejection of the prayer of the pre-
emptor to amend his pleading by questioning validity of the ex parte decree in T.S. 78 of 1993 can have an impact upon the merit of the pre-emption case.
(ii) Whether said ex-parte decree is binding on the pre-emptor for being prevented from exercising his right of pre-emption on the ground of vicinage,
(iii)Whether the order and judgment of both the Courts can be sustained under law, or,
(iv) Whether this Court has any reason to make interference in the decision as held in refusing to allow pre-emption?
13. At the very outset this Court desires to repeat once more that under Article 227 of the Constitution of India this Court has been enjoying in one hand unfettered power to oversee the act and action of the Courts, institutions, authorities subordinate to it, for examining whether the respective decision making process adopted therein, has been done as righteous, and, on the other hand, this Court keeps itself within self-constrained restriction jurisdiction by not interfering with the affairs dealt with by all authorities subordinate to it, if, the same can otherwise be sustained in terms of fact and related law. If the relevant law is not correctly applied then testing the fact of the case this Court may interefere with such order to keep the decision making process in right direction.
14. In the case on hand, it reveals from the L.C.R. that except participating in the pre-emption proceeding by opposing through written objections and cross- examining the witnesses examined by the pre-emptor and examining only the Learned Commissioner, held local inspection, only as O.P.W1, the pre-emptees did not lead any other evidence. Of course on behalf of the pre-emptees certified copy of the ex-parte order of the suit dated 16.11.1994, decree, and the local inspection report were marked respectively as Exhibit nos. A,B, and C, whereas, on behalf of the pre-emptor as many as fourteen documents were exhibited.
15. The impugned sale deed (Ext. 11) shows sale of demarcated portion of 6 1/7th of plot 848 and 2 6/7 decimal of plot no. 849 showing 1/7 decimal on its extreme eastern side. It was sold by aforesaid admitted owner Sadhu Ali Shah (since deceased) in favour of pre-emptees-opposite party nos. 1 to 5 on 14th March, 1984 = 30th Falgaon 1390 B.S. Such deed was copied in the volume of the Registry office on 17th September, 1990, on which day its registration was accordingly complete. The pre-emption case was filed by the pre- emptor on 11th January, 1991 within the stipulated period on the ground of vicinage. Therefore there is no defect, as rightly noted by both the learned Courts below as regard filing of the pre-emption case.
16. Law is set at rest that in a case of pre-emption under Section 8(1) of the West Bengal Land Reforms Act, 1955, as amended by the Act 2014, except challenge about the impugned deed available only under Section 9 of said Act, any other defence challenging nature and character of the deed, is not available. Such an weak right of pre-emption is to be dealt with for answering on either side remaining also within such special statue. Therefore, though the amendment, as was unsuccessfully proposed for incorporation in the pre-emption application by the pre-emptor making challenge against the ex-parte decree of Title Suit 78 of 1993 (supra), was rejected, the same would have no impact upon the merit of the pre-emption case, which is to be dealt with independently on other evidence and merit remaining within the provision of the West Bengal Land Reforms Act, 1955.
17. Admittedly in the T.S. 78 of 1993 the pre-emptor was not made a party. It is observed that said suit was filed by transferee/pre-emptee nos. 3 and 4 along with other intervening transferees from them as plaintiffs making the transferees/pre-emptee nos. 2,3 and 5 along with aforesaid Sadhu Ali Shah (since deceased) and other intervening transferees as defendants. Said suit was decreed ex parte on 16th November, 1994. The operative part of said ex-parte decree marked as Ext. A is set out:-
"That the suit be and the same is decreed ex-parte with costs. The right, title and interest of the plaintiff over the 'A' schedule lands as mentioned in the plaint are hereby declared."
So the aforesaid decree does not indicate any rectification in the schedule of the impugned deed. The said decreetal 'A' schedule property as described in Bengali in the plaint of said suit is translated as follows:-
District Medinipur, P.S. Contai Mouja-Paschim Mahammadpur, Khatian 160, Plot no. 849 eastern 26/7 decimals out of eastern 3 decimals from amongst 14 decimals excluding western 1/7th decimal as shown in the sketch map appended to the plaint.
18. Ext. B shows that said T.S. 78/1993 was filed on 27th August, 1993 i.e. after about more than 2½ years of filing of the pre-emption case. It was disposed of ex- parte on 16.11.1994. Decree was sealed and signed on 13.12.1994. Those documents lying in L.C.R further reveal that said Sadhu Ali Shah the seller of the impugned property was defendant no.1 in said suit (supra). He died on 28.10.1994 and on prayer the plaintiffs of said suit order was made by learned Trial Court on the same date of passing ex-parte order (16.11.1994) exempting the plaintiffs from substituting the heirs of said Sadhu Ali Shah, since deceased. Sadhu Ali Shah, during his lifetime did not offer contest is said T.S. 78/1993. But curiously enough, his heir along with others filed J. Misc. Case 10 of 2007 on 18th June, 2017 praying for setting aside said ex- parte decree and from its order sheets (Ext. 14) bearing 61 nos. of orders till 30th January, 2013(about 19 years had been lapsed in between) it appears that the said misc. case is still pending at the stage of hearing which has been mutually adjourned on the basis of application filed by one side or the other.
19. Order sheet nos. 286 and 287 of the present case, pre-emption as reveals from the L.C.R., indicate that evidence on behalf of the pre-emptor was closed, and except marking of three documents (Ext., A, B and Ext. C) the pre-emptees choose not to examine any witness as OPW except the inspection Commissioner as O.P.W1. At the instance of pre-emptee nos. 1 and 2 the Local Inspection Commissioner was examined as O.P.W. 1 on 14th March, 2013 while the local inspection report with field book was marked as Ext. C.
20. It is pertinent to mention that in the x-erox copy of the certified copy of the evidence of Local Inspection Commissioner though he is mentioned as of O.P.W. 3 but the order sheets (supra) show that said learned Commissioner was actually examined as O.P.W.1, and no other witness was examined on dock on behalf of the pre-emptees.
21. Mr. Bhattacharya invited attention of this Court to the finding of learned Lower Appellate Court at page 9, and, criticizing said observation as of nobody's case, and even it was never argued over said Local Inspection Commissioner's report, learned Appellate Court committed illegality in placing reliance on said inspection report to hold that there being a strip of land used as common passage between the land of the parties, the pre-emptor was not becoming a contiguous landowner. The said portion of finding of learned Lower Appellate Court is set out:-
"Though, this point has not been raised by either of the party before the lower court nor it has been mentioned in the memorandum of appeal, however, on perusal of the lower court record it appears that commission over the suit land was held and the report of the commissioner was submitted which has been marked as Ext. C. On perusal of the Ext. C it appears that in between the 'Chha' schedule property and 'Ka' schedule property there is a strip of land which is used as common passage for the public. If this be the so, it cannot be said the 'Chha' schedule property is contiguous to the 'A' schedule property.
22. Mr. Bera per contra submitted that learned Courts below have inherent power to consider all facts available on record for rendering proper justice. Therefore, as further submitted by Mr.Bera, that consideration of said Local Inspection report was justifiably used as corroboration of the case of the opposite parties that in view of existence of vacant land used as a common passage situates between the land of the pre-emptor and pre-emptees, the prayer of pre- emption on the ground of vicinage had to be declined, and, the ex-parte decree was rightly accepted by both the learned Courts below to reject the prayer of pre- emption.
23. In respect of local inspection report though no argument was made before learned Lower Appellate Court, learned Court considered the same suo moto, that too for the first time, which was not desirable at the appellate stage, since so far as determination of existence of any subject dispute in the locality with reference to number of plots etc., the case property could have been investigated by scientific measurement. However let me consider propriety of such observation of learned Lower Appellate Court. Learned Commissioner as the sole witness was examined on behalf of the pre-emptees, told in examination-in-chief, "I had prepared the field note in my own hand writing and have taken signature of persons who were present on the basis of the field note I had prepared the H.S. (Hand Sketch) map and put my signature .......The field note and H.S. Map are part of the report. In cross-examination he told "I have conducted the inspection as per identification by the parties.........I had consulted no documents or evidence in regard to the fact that the road on the western side of suit land belonged to the general public. No dag no. has been mentioned in the H.S. Map and the field note."
24. It was nobody's case about use of the alleged strip of land, said to have existed between the impugned land and land of pre-emptors, as pathway or a public passage. Learned Commissioner did not consult any document in preparing the field note. He had prepared one hand drawn sketch map, meaning thereby, said map was not drawn to scale, which indicates without any second thought that he did not conduct any survey work by relayment of the surrounding plots or even the impugned plot of land by settling any fixed point with reference to any old monument or landmark of the locality.
25. A mere local inspection report, where any survey work was not conducted, as is usually done by a survey passed Commissioner during local investigation, learned Lower Appellate Court committed illegality in placing reliance on such a local inspection report in affirming the order passed by learned trial Court declining the pre-emption in view of the ex parte decree(supra), that too, by considering said inspection report suo moto without being raised by either side. Had the nature of said report been a public document under Section 74 of the Evidence Act the merit of above consideration might have been otherwise, provided, the same characteristics would prevail in the locality since before accrual of right of pre-emption in question. Therefore the finding of learned Lower Appellate Court on acceptance and placing reliance on a mere Local Inspection Report to answer the lis is perverse and is hereby set aside since it has caused miscarriage of justice in the decision making process.
26. Genesis of the case arose due to transfer by the original owner Sadhu Ali Shah (since deceased), obtained by virtue of the registered deed of partition dated 28th November, 1954 = 12th Agralayan 1361 B.S. Said deed is noticed to be appended with a map keeping distribution of their joint properties separately from schedules "Ka" to "Chha" by showing the respective area in terms of "LINK" (determined by use of one kind of measuring metalic instrument in the field/land). By virtue of said partition deed original owner Sadhu Ali Shah got "Ka" schedule situated on the extreme western and extreme eastern side of the entire plots of land appertained to plot nos. 848 and 849 showing division of the property amongst the parties to said partition deed by demarcating also the respective portions by the schedules from 'Ka" to 'Chha' measured by 'Link'. Accordingly the extreme eastern side portion situates on the adjacent east of "Chha" schedule, marked by 'Ka', fell into the share of said Sadhu Ali Shah. Meaning thereby, the 'Chha' schedule property allotted to the share of the pre-emptor Moulu Ali Shah situates on the adjacent western side of schedule "Ka" of said partition deed. The map appended to the partition deed does not show also existence of any strip of land, said to be any public passage or even a pathway, between the schedules "Chha" and "Ka". The impugned deed of purchase also did not reflect existence of any such passage or strip of land (stretched from north to south or vice versa) in between said "Chha" and "Ka" schedule land. By the impugned deed of purchase the pre-emptees had purchased eastern 61/7 decimals of plot 848 and eastern 26/7 decimal. Meaning thereby, the pre-emptees had purchased jointly the strip of land appertained to adjacent portions situated on adjacent east of demarcated portion of those two plot nos. 848 and 849 belonging to the pre-emptor, obtained by the partition deed (supra).
27. The deed of transfer, as it stood, did not show that there was ever existence of any strip of land for the purpose of its use as pathway or public passage in between the "Chha" schedule property belonging to the pre-emptor and its adjacent "Ka" schedule property belonging to the pre-emptees.
28. From the ex-parte decree and plaint of Title Suit 78 of 1993 (supra) which was initiated sometimes after institution of this pre-emption case the pre-emptor was not made a party. It is obvious that in a pre-emption case, where the right of the pre-emptor by nature is very weak and scope is very limited, the act of establishing such right is dependent on some limited tests to be determined under Sections 5, 8 and 9 of the West Bengal Land Reforms Act, 1955, where any challenge as against the nature, character or even the property covered in the schedule of the impugned deed is not available in the pre-emption case. In the event of success the petitioner is supposed to be put into the shoes of the pre-emptee and had there been any deficiency in the nature and description or even the title of the pre-emptee over the property covered by the deed, the pre-emptor is supposed to bear with all those deficiencies, since, it is the pre-emptor who himself invites the risk opting to purchase in exercise of right of pre-emption. Because it is the pre-emptor who seeks for pre-emption to exercise such weak right to be determined under the provisions of the West Bengal Land Reforms Act, 1955. Therefore, though the aforesaid Title Suit No. 78 of 1993 was decreed ex parte behind back of the pre-emptor he is not in a position under law to challenge said ex parte decree as void as against him in a proceeding of the pre-emption case. But question of its binding effect always may be raised since said suit was filed by some of the pre-emptees along with others by not making the pre-emptor as a party though the title suit 78/1993 (supra) was filed much later than institution of the instant pre-emption case.
29. Learned Counsel for the pre-emptees submitted that by the ex parte decree in the suit mistake in the schedule was rectified. There was attempt to give impression that by virtue of that ex parte decree the actual schedule of property which was purchased by the pre-emptees was rectified and by such rectification it would be deemed that the pre-emptees virtually had purchased the land situated on the extreme eastern portion of plot 848 and 849 keeping a strip of land in between the said purchase portion of the pre-emptees and the property belonging to the pre-emptor measuring 1/7th decimal.
30. Now examining the text of the decree as referred to hereinbefore, this court takes a different view that by virtue of such decree any rectification in the schedule was not actually effected. Since in said ex-parte decree right, title and interest of plaintiffs of Title Suit 78/1993 (supra) were only declared over 'A' schedule property. The relevant part of decretal 'A' schedule as per the decree is reproduced by translating form Bengali:-
Dt:- Medinipur, P.S.-Contai Plot no. 849, eastern 26/7 decimal out of eastern plot no. 848, 61/7 decimals on the north-eastern side out of eastern 16 decimals from 55 decimals.
There was however no decree with regard to the non- suited Ka schedule portion and Kha schedule mentioned in the plaint and also in the decree (Ext.B). The description of the decretal property (supra) did not substantiate existence of the alleged passage between the plot of land of the pre-emptor and that of the pre- emptees. There was a mere declaration of right, title, interest over the decretal 'A' schedule property, where even any sketch map was not made part of said decree, and the same thereby did not sever the contiguity characteristics of the plot of land belonging to the pre- emptor lying on adjacent western side of impugned case property purchased by the pre-emptees. Even in the partition deed held within a few months (subsequent to purchase) on 10.04.1985 in between the five original pre-emptees (i.e. Bimal Kr. Dinda and Sandhya Rani Dinda as 1st party, Rabin Kumar Bag as the 2nd party, and Mantu Kumar Dinda and Renuka Bala Dinda and 3rd Party), there was also one hand drawn sketch map appended to said deed of partition (Ext.10). The sketch map indicates only three stips of land divided within themselves with the mark 'Ka', 'Kha" and 'Ga'. In said map also existence of any pathway or passage was not shown. Therefore, till that partition deed held between the pre-emptees themselves they had accepted the characteristics of the property mentioned in the schedule of the impugned deed dated 19.11.1984.
31. Though Mr. Bera was trying to impress that the schedule of the impugned subject deed was rectified in a subsequent title suit 78/1993 (supra), this Court in the face of its decree, as discussed above, finds that the schedule of the deed, sought to be pre-empted, was never rectified. There was mere declaration of right, title, interest by which the contiguity of the plots of land occupied by the pre-emptor and principal five pre- emptees was never severed. Moreover, even it is assumed, though not admitted, that there was ever any attempt to rectify the schedule of the impugned deed, the language of later part of Section 26(2) of the Specific Relief Act stands as a bar. Said Portion of Section 26(2) of the Specific Relief Act is set out:-
"If, in any suit in which a contract or other instrument is sought to be rectified under sub- section(1), the court finds that the instrument, through fraud or mistake, does not express the real intentions of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value. "
That apart Section 26(4) of the Specific Relief Act further provides, "No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed." Virtually the relief of rectification is permissible only by and between the parties to the concerned instrument and by non-else. Whereas in the Title Suit no. 78/1993 (supra) there were some subsequent transferees from some of the original pre-emptees as parties. The vendor Sadhu Ali Shah was made a party to that suit but on his demise his heirs were not substituted, rather, on the very date of passing ex parte decree name of said Sadhu Ali Shah was expunged exempting the plaintiffs of said suit from making substitution of his heirs. That apart, except decree of declaration of title, as discussed above, any relief rectifying the schedule of the impugned deed was not passed, though both the learned Courts below riled on said ex parte decree wrongly accepting the same as a decree of rectification in the impugned deed.
32. This Court also took notice that though the aforesaid title suit no. 78 of 1993 was decreed ex parte on 16.11.1994, but with a view to keep said proceeding alive an application under Order 9 Rule 13 of the of Code of Civil Procedure was filed on 18.06.2007 (i.e. after about 12 ½ years ) along with an application under Section 5 of the Limitation Act allegedly by the heirs of said Sadhu Ali Shah against the decree-holders and others. Ext. 14, the copies of order sheets of said Misc. case reveal that till January 2013 it was kept pending due to adjournment taken rather mutually day to day by either of the parties. This is another strong circumstance which speaks a volume about the planned and collusive conduct in the name of institution of civil proceeding allegedly proposing rectification in the deed. Nonetheless of making several transfers by some of the parties to the impugned deed to others taking the schedule of the impugned deed as correct, the entire proceeding of title suit 78/1993 and the belated Misc. case give three fold suspicious implications. Firstly, the same might have been instituted to give a show game that as if there was mistake in the schedule of the impugned deed, that is why there was ex parte decree accepted by the vendor (since deceased) without any opposition . Secondly, against said ex parte decree a belated Misc. case under Order IX Rule 13 of the Code of Civil Procedure though is assumed as a genuine step, then in common parlance it would mean that the heirs of the vendor Sadhu Ali Shah have not been approving any alleged mistake in the schedule of the impugned deed, otherwise, by allowing exemption to substitute their predecessor Sadhu Ali Shah his heirs, after so long a period of ex parte decree, would not pray for restoration of the suit. Thirdly, while such a belated misc. case was filed then why it is still kept pending? These clear instances of collusion are very apparent. Apart from earlier observations about the factual aspect on the vicinity either of the aforesaid three fold implications are not assisting the pre-emptees to stand on their defence. Meaning thereby, to show existence of a strip of land said to be a public passage or pathway in between "Chha" schedule belonging to the pre-emptor and the "Ka" schedule belonging to the pre-emptees by virtue of the impugned deed there was unsuccessful attempt, which had no existence since the partition deed (supra) held in the year 1954 between the original owners of the case property by virtue of which Sadhu Ali Shah sold his demarcated plot of land.
33. Lastly, though not the least, though within the precinct of the pre-emption proceeding the aforesaid ex parte decree of title suit 78/1993 cannot be declared as illegal, void etc., but since the pre-emptor consciously was not made a party to said suit, said decree is not binding upon the pre-emptor. Learned Courts below failed to appreciate such factual aspect that when the pre-emptor was not made a party to that suit, he had no obligation to take step as against said proceeding. Learned Lower Appellate Court wrongly burdened the pre-emptor unnecessary picking up fault with him that he did not take step as against the aforesaid ex parte decree.
34. So far as accrual of right of pre-emption, if is available only under the special statute, it accrues on the date of execution of the impugned deed. Such accrued right gets maturity for making it actionable on and after the date of completion of its registration within a stipulated period laid down under Section 8(1) of the West Bengal Land Reforms Act, 1955. The instant case was filed within statutory period. By virtue of registered partition deed in the year 1954 there was no more jointness of property since the plots 848 and 849 were divided and demarcated separately specifying right of the parties to said partition deed to enjoy the portions of those allotted plots of land.
35. Therefore the valuable right of pre-emption, though by nature it is weak right, what has been accrued in favour of the pre-emptor on the ground of vicinage much before the ex parte decree of title suit 78/1993, and since the said decree is not binding upon the pre- emptor to disturb or frustrate the right of pre-emption already accrued by him over the property covered by the impugned deed dated 14th March, 1984, learned Courts below failed to apply the law of pre-emption by properly appreciating the fact. Both the courts below have deprived the pre-emptor being wrongly driven by the result of the Title Suit 78 of 1993 and inadmissible local inspection report (supra). That is the cogent reason to examine propriety of the impugned orders by this Court in terms of the factual aspects to oversee as to whether law of pre-emption has been rightly applied or not.
36. Mr. Bera citing the cases mentioned above submitted that when two learned Courts below declined the right pre-emption on the ground of vicinage, the High Court should not interfere to extend said relief.
In the case of Rekha Rani Maity and Ors. (supra) the trial Court dismissed the prayer of pre-emption, as was sought for on the ground of vicinage. Learned Lower Appellate Court allowed the pre-emption reversing the order of learned Trial Court. The High Court upheld the order of learned Trial Court dismissing the pre-emption case. In said case, there was no legal partition. Claim for pre-emption was pursued on the ground of adjoining land owner. Since in that reported case there was no partition it could not be held that that the pre- emptor was holding land adjoining the land transferred by the impugned deed, sought to be pre-empted. Paragraph 5 and relevant part of paragraph 11 from said case are accordingly set out:-
"Paragraph 5:- It has been held in by our High Court in a case reported in 82 Cal WN page 950 (Kalipada Ghosh, petitioner Vs. Dulal Chandra Ghosh, Opposite party) following a Supreme Court Judgment reported in AIR 1971 SC Page 369 (Bhagyaban Das v. Ched Ram) that the pre-emptor, in order to succeed must have the right to pre-empt not only at the time of sale of the land by the landlord but also at the time of passing of the decree in the suit by the Trial Court. It has been argued by Sri Byhattacharjee relying on the aforesaid Judgments that neither at the time of filing of the pre-emption case nor at the time of passing the impugned order the pre- emptor i.e. the opposite party appellant had any continuing right of pre-emption in view of the fact that on the date of the filing of the pre-emption case the pre-emptee Khudiram Maity had already become a co-sharer in the disputed holding on the basis of the deed of exchange as per Exhibit B. Such contention of Sri Bhattacharjee has much force legally and logically."
"Paragraph 11:- It also appears that the Appellate Court below has not followed the principle of law laid down by this High Court reported in (1980)1Cal LJ page 395 (Kadarnath Panchadhoyee & Ors Vs. Nagendra Nath Mahapatra & Ors.). In this case it has been held by the Trial Court that the pre-emptor is a co-sharer in some of the adjoining lands. There is no case of partition or specific possession. It has been held by this High Court in the above case that when there is no partition it cannot be said that any specific portion of the holding is in possession it cannot be said that any specific portion of the holding is in possession of the pre-emptors nor it cannot be held that the pre-3emptors are holding land adjoining the land transfer."
37. In the instant case there was a partition in 1954 by registered instrument by which the pre-emptor obtained demarcated "Chha" schedule situates to the adjacent West of the demarcated eastern 'Ka' schedule purchased by five pre-emptees jointly by the impugned deed dated 14.03.1984. It has been discussed already that the pre-emptor had accrued his right of pre- emption as adjoining landowner on the date of impugned purchase on 14th March, 1984, since Moulu Ali Shah the pre-emptor had his right prevalent as adjoining landowner since aforesaid registered partition deed dated 29.11.1954, where the entire plots of land appertained to impugned plot nos. 848 and 849 were divided by demarcation specifying the plots of land by putting schedules 'Ka' to 'Chha'. The extreme eastern demarcated 'Ka' schedule situates on adjacent 'Chha' schedule, meaning thereby, schedule 'Chha' situates on adjacent West of said eastern "Ka" schedule plot of land. The impugned deed was copied in the volume of the Registry Office on 17.9.1990. The instant pre- emption case was filed on 11.01.1991. So on all those three dates the right of pre-emption as accrued in favour of the pre-emptor only on the ground of vicinage had been prevalently continuing. There was attempt to frustrate said right by the proceedings of title suit 78/1993 which was filed much later than the date of accrual of such right. It has already been observed that said civil proceedings can have no impact on such pre- emption case since order and decree of said T.S. 78/1993 (supra) has no binding effect on the way of success in such pre-emption case. Therefore the case of Smt. Rekha Rani Maity rather lends assistance to the case of the instant pre-emptor that he had accrued the right to pre-empt on the ground of vicinage not only at the time of sale of the impugned land, but also he had such right on the date of institution of the instant pre-emption case, and said right has been still continuing without its severance.
38. It is pertinent to mention that the transfers as made subsequently by those original five purchasers after getting partition of entire "Ka" schedule plot of land appertained to impugned plot nos. 848 and 849 amongst themselves also cannot stand on the way of exercising such right of pre-emptor. Because all those subsequent transferees have simply stepped into shoes of their vendors, and they shall be bound by the result of the instant pre-emption case, since those subsequent transferees have purchased from their vendors when the right of pre-emption has not been ceased to exist.
39. In the another case of Sri Dushasan Kayal (supra) also pre-emption was sought for on the ground of owning adjoining land where the disputed plot was not partitioned before. The High Court set aside orders of both the courts below who had allowed the pre-emption on the ground of vicinage since the right would not be available as the plot in question was not partitioned. Paragraph 4 and relevant part of paragraph 5 from the aforesaid case are set out:-
Paragraph 4:- Mr. Sahoo has referred to another decision of this High Court reported in (2) 1987 (1) CHN 88, Khagendra N. Panda Vs. Gaya Prasad Sahu where the above principle was followed. Mr. Sahoo has also referred to another recent decision of this High Court reported in (3) 1995 WBLR (Cal)263, Reha Rani Maity & Ors. Vs. Jagatpati Sashmal where the above principles laid down in Kedarnath's case (supra) have been followed.
Paragraph 5:- Against the above contention of Mr. Sahoo, Mr. Bahattacharjee the learned Advocate appearing for the opposite party has submitted that on the point of partition of the disputed plot among its co-sharers both the Courts below have come to a concurrent finding that there has been a partition in respect of the same relying on the admission made in Paragraph 14 of the written objection and upon the evidence adduced by the parties. But it may be noted that there is no evidence on record to show that any partition of the disputed plot was effected in terms of the provisions of Section 14 of the West Bengal Land Reforms Act. The opposite party-pre- emptor in his evidence has said nothing of the partition. The petitioner-pre-emptee in his chief has said that there was no partition of the disputed plot along the purchasers. It appears that there was no cross-examination on this part of his evidence. It seems that both the Courts below relied upon the admission regarding the partition made in Paragraph 14 of the written objection. But both the Courts below. In my opinion, erred in law in not holding that there cannot be any admission against the specific provisions of law. Under Section 13 of the West Bengal Land Reforms Act partition can be effected only by a registered deed or by a decree or an order of a Court. Furthermore, admission is not conclusive evidence and can be a explained away. Both the Courts below did not take into consideration the evidence of the petitioner pre- emptee on oath denying any partition.
Amicable partition by way of mutual arrangement of possession cannot be treated as a partition under Section 14 of the West Bengal Land Reforms Act.
40. Therefore, this case also like the case of Smt. Rekha Rani & Ors (supra) is assisting to the fact of the instant case and is of no assistance to the pre-emptees.
41. The case of Bangsodhar Roy stands on different footing, where pre-emption was sought for on the ground of co-sharer, which was rejected by learned Trial Court but was allowed by Lower Appellate Court. The High Court held, "the learned First Appellate Court has committed a wrong in concluding that the pre- emptors are the co-sharers in respect of the land. The case therefore has no manner of application in the instant case.
42. In view of above, this Court concludes that there being never severance in the existing right of pre- emption on the ground of vicinage, and Ext. c the local inspection report on examination is found as useless, unreliable and not admissible in evidence, and even the result of proceedings of Title Suit no. 78/1993, how highsoever merit had it been, is not binding upon the pre-emptor to stand on his way of getting right of pre- emption on the ground of vicinage. Learned Lower Appellate Court committed illegality mounting to perversity as well in the decision making process in affirming the trial Court's order rejecting the pre- emption case placing reliance on the faulty, inadmissible evidence and on the document of not binding in nature.
43. Therefore, if interference is not made by this Court in such a just and right case in exercise of the power vested under Article 227 of the Constitution of India to set the wrong as righteous, the right of pre-emption which itself is weak one, which is all along prevalent with the pre-emptor, would be robbed by committing another wrong and eventually the pre-emptor, who had acquired the legal and valid right, would be deprived of.
44. The judgment dated 10th September, 2015 passed by learned Additional District Judge, Contai, 2nd Court, Purba Medinipur in Misc. Appeal no. 04 of 2014 affirming the order dated 30.07.2013 passed by learned Civil Judge (Junior Division), Additional Court Contai, Purba Medinipur in J. Misc. case No. 27 of 2007 are accordingly set aside, and the right, title, interest whatever was conferred upon the purchasers of the subject property covered in the impugned deed dated 18th March, 1984 do vest in favour of the pre- emptor, and, the revisional application is allowed with cost of Rs. 5,000/-(five Thousand) only payable by the contesting opposite parties before the leaned Trial Court in the name of pre-emptor by appropriate challan within a period of two months from this day, failing which learned Trial Court during refund of the deposit with interest lying with the trial Court as compensation money for the pre-emptees shall remit only the balance to all five original pre-emptees (namely, 1. Sri Biaml Kr. Dinda 2. Sri Sandhya Rani Dinda 3. Sri Rabin Kr. Bag 4. Sri Mantu Kr. Dinda 5. Smt. Renuka Bala Dinda.) after deduction of such amount of cost of Rs. 5,000/- which shall be payable to the pre-emptor who suffered a lot due to planned vexatious game played jointly by the improvised brain of those pre-emptees right from the Trial Court up to this Court from the year of 2007.
45. Department is directed to return Lower Court records along with a copy of this judgment for information.
46. Urgent certified photostat copy be supplied on receipt of appropriate application with requisite fees.
(MIR DARA SHEKO, J.)