Calcutta High Court
Amal Kumar Giri And Ors. vs Nani Gopal Paira And Ors. on 9 March, 2004
Equivalent citations: 2004(3)CHN631
JUDGMENT Arun Kumar Bhattacharya, J.
1. The hearing stems from an application filed by the petitioners praying for revision of the order dated 16.12.1998 passed by the learned Additional District Judge, 5th Court, Midnapore in Misc. Appeal No.45/95 reversing the order dated 24.3.95 of learned Munsif, Dantan in J. Misc. Case No. 26/1991.
2. The circumstances leading to the present revision are that the petitioners filed an application under Section 8 of the W.B.L.R. Act being registered as J. Misc. Case No. 27/91 for pre-emption of the lands transferred in favour of O.P. No. 1 by pro-O.P. Nos. 2 to 7 by a sale deed executed on 21.9.87 and registered on 2.2.91, on the ground of vicinage, on depositing sale-price along with compensation, as they purchased land of plot Nos. 2315 & 2319 of Khatian Nos. 158 & 483 respectively of Mouza Palasi by a registered deed dated 21.9.89. After a contested hearing the Trial Court allowed the said misc. case holding the petitioners as contiguous raiyats of the disputed land. In appeal being Misc. Appeal No. 45/95 preferred by O.P. No. 1 the learned Judge reversed the order of the Trial Court observing that there were co-sharers of the lands, that the lands transferred are not specific and there was no partition of the said lands, though the lands transferred which are Panbaraz and Bastudhosa are well defined, demarcated, sufficiently identifiable and are in exclusive possession of O.P. No. 1.
3. Being aggrieved by and dissatisfied with the said order, the petitioners have preferred the present revision.
4. All that now requires to be considered is whether the learned Lower Appellate Court was justified in passing the above order.
5. Mr. Puspendu Bikas Sahoo, learned Counsel for the petitioners, at the outset on drawing Court's attention to the provision of Section 2(6) as also Section 8 of the W.B.L.R. Act, as amended by the W.B.L.R. (Amendment) Act, 2000 (W.B. Act XXXI of 2000) with retrospective effect from 7.8.69 and an unreported decision of this Court in P. Upadhayay v. Tilakdhari Singh contended that since the concept of "holding" is now non est, as it has been substituted by "plot of land of a raiyat" with retrospective effect from 7.8.69, the entire complexion has been changed thus giving rise to the necessity for sending the case back on remand to the Trial Court for a fresh, decision, as the right of pre-emption of the co-sharer, bargadar and adjoining owner has been limited to a portion or area of the plot of land. Mr. Rameshwar Bhattacharya, learned Counsel for O.P. No. 1, on the other hand, on referring the decisions reported in Chintaman and Anr. v. State of Maharashtra and Anr., , State of West Bengal v. Kalyan Kumar Sen, 2001 W.B.L.R. (Cal) 352 and JFF Crossley v. Sushila Bala Dasi, 1981 CLJ 395 contended that some portion of lands was transferred to O.P. No. 1, as will be evinced from the schedule of the application and page 2 of the Appellate Court's judgment, and so mere omission of the word "holding" from the definition will virtually not affect this proceeding in any way, that the documents filed on behalf of the petitioners should not have been exhibited without proof, that as the co-sharers of plot No. 2319 in respect of which the petitioners claim to have adjoining land have not been made parties and that as the said plot No. 2319 is unpartitioned and so other co-sharers have interest and possession legally in every inch of the property, there is no material to interfere with the findings of the learned Court of Appeal.
6. Before I open the discussion, and indeed as paving the way for it, I may shortly dispose of one or two legal questions, as raised by Mr. Bhattacharya, so that the desk may be clear for dealing with the main issue which actually deserves to be dealt with here.
7. It was contended by Mr. Bhattacharya that all the co-sharers of plot No. 2319 should have been made parties here. A "necessary party" is one whose presence is essential and in whose absence no effective decree can at all be passed, whereas a "proper party" is one whose presence is a matter of convenience to enable the Court to adjudicate more effectively and completely. In a pre-emption proceeding, the right to relief lies against the person in whose favour transfer of a portion or share of land has been made. So, other co-sharers, if any, are neither necessary nor proper "parties and as such the question of their impleadment in the proceeding is out of the way.
8. As regards the marking the documents filed on behalf of the petitioners as exhibits, as pointed out by Mr. Sahoo, on formal proof being waived, those documents were marked exhibits, and so no .objection should be entertained at this stage which appears to be appreciable.
9. The petitioners who are owners of some portion of plot Nos. 2315, 2316, 2322, 2319 & 2314 of Mouza Palasi by virtue of a purchase deed dated 17.6.86, claim pre-emption of the disputed properties on the ground of vicinage, as O.P. Nos. 2 to 7 transferred portion of plot Nos. 2314, 2318 & 2320 to O.P. No. 1 by a deed dated 21.9.87 registered on 2.2.91. Section 8(1) provides :
"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, ...........any co-sharer of a raiyat in the plot of land may, within three months of the service of the notice given under Sub-section (5) of Section 5, or any raiyat possessing land adjoining such plot of land may, within four months of the date of such transfer, apply to the Munsif having territorial jurisdiction for transfer of the said portion or share of the plot of land to him,............".
10. A glance to the above will reveal that when a portion or share of a plot of land of a raiyat is transferred to any person other than a co-sharer in the said plot of land, any co-sharer of a raiyat in the plot of land or any raiyat possessing land adjoining the said plot of land has a right to pre-empt. Here, undisputedly, O.P. No. 1 is already a co-sharer in respect of plot No. 2314 (Ext. A) and so the question of pre-emption of the same by the petitioners does not arise. Plot Nos. 2315 & 2319 were found by the learned Trial Judge to be contiguous to the said plots. The petitioners are co-sharers in respect of plot No. 2319. Similarly, O.P. No. 1 also is a co-sharer in respect of plot No. 2319 by virtue of a deed of gift dated 28.8.91 from one Gopal Ch. Pradhan & Gurubari Paira (Ext. B). The right to pre-empt must exist not only at the time of sale of the land and the date of application but also to the time of the application being decided . In other words the pre-emptor must continue to possess the right till the date of the decree, and if he loses that right before the decree being passed, the decree for pre-emption cannot be granted even though he may have such right on the date of making the application . The learned Trial Judge appears to have totally overlooked the above proposition of law as also Sub-section (2) of Section 8 which specifically prohibits to take into consideration of a transfer of bequest or gift and did not consider Exhibit-B wrongly. So, O.P. No. 1 being a co-sharer in respect of plot No. 2319, the said plot too may be excluded from the purview of the pre-emption. That apart, admittedly or undisputedly, there was no partition in respect of the disputed plots by metes and bounds. The claim for pre-emption on the ground of vicinage can succeed only if the claimant can show by positive evidence that he is the exclusive owner of the property 1995 WBLR (Cal) 263 ; 1980(1) CLJ 395; 85 CWN 385 at 389 etc. Accordingly, in the absence of any partition of the properties, the petitioners' claim for pre-emption on the ground of vicinage is not sustainable.
11. In the premises, in the light of the above discussion, there being no material to interfere with the findings of the learned Lower Appellate Court, the present revision does not lie.
12. In the result, the revisional application be dismissed on contest but without any cost.
13. The impugned order dated 16.12.98 passed by the learned Additional District Judge, 5th Court, Midnapore in Misc. Appeal No. 45/1995 is hereby affirmed.
14. Let a copy of this order be sent down to the learned Court below at once.