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High Court Of Calcutta
S. N. Sanyal
KERATULLA SK. - Appellant
Versus
FAZLUR RAHAMAN SARDAR - Respondent
Civil Revn. 2013 Of 1981
Decided On : 02/15/1984
LAND REFORMS ACT - SECTION 8 - RIGHT OF PRE-EMPTION - AGRICULTURAL LAND - ORCHARD - INTERPRETATION - APPLICABILITY OF SECTION 8 TO ORCHARD LANDS.
Fact of the Case:
The petitioner purchased a disputed property from one Emajuddin, son of Enayat Ali Sk. on March 22, 1975. Opposite parties Nos. 1 and 2, who were co-sharers in the same raiyati holding, filed an application under Section 8 of the Land Reforms Act, claiming pre-emption rights over the disputed property. The petitioner contended that the application was barred by limitation and that the opposite parties had no right to claim pre-emption as they were not co-sharers. The trial court allowed the application, finding that the opposite parties had purchased the disputed holding on October 12, 1974, while the petitioner purchased it in March 1975. The petitioner appealed to the District Judge, who dismissed the appeal, holding that the petitioner could not raise the issue of the disputed property being a 'garden' and not 'agricultural land' as he had not raised it in his written objection.
Finding of the Court:
The court found that the petitioner had failed to raise any objection regarding the nature of the property in his written objection before the trial court. The court also held that even if the disputed property was an orchard, it would still be considered agricultural land as per the Supreme Court's decision in Sasanka Sekhar Maity v. Union of India.
Issues: 1. Whether the petitioner could raise the issue of the disputed property being a 'garden' and not 'agricultural land' for the first time in the appellate stage when he had not raised it in his written objection before the trial court. 2. Whether an orchard is considered agricultural land for the purpose of pre-emption rights under Section 8 of the Land Reforms Act.
Ratio Decidendi: 1. The court held that the petitioner could not raise the issue of the disputed property being a 'garden' and not 'agricultural land' for the first time in the appellate stage as he had not raised it in his written objection before the trial court. The court reasoned that the petitioner had failed to properly frame the issue and that the evidence adduced by him on this point was rightly rejected by the courts below. 2. The court held that an orchard is considered agricultural land for the purpose of pre-emption rights under Section 8 of the Land Reforms Act. The court relied on the Supreme Court's decision in Sasanka Sekhar Maity v. Union of India, which held that the expression 'agricultural land' is wide enough to include an orchard.
Final Decision: The court dismissed the petitioner's revisional application, holding that the lower courts had not erred in allowing the application for pre-emption under Section 8 of the Land Reforms Act.
( 1 ) IN this revisional application the petitioner has challenged the order of the learned District Judge, Malda made on June 13, 1981 dismissing the petitioner's appeal being Misc. Appeal No. 21 of 1980 and thereby affirming the order passed by the learned Munsif, Second Court, Malda in Miscellaneous Case No. 133 of 1976 allowing an application made by the opposite parties under Section 8 of the Land Reforms Act. Opposite parties Nos. 1 and 2 filed an application under Section 8 of the Land Reforms Act in the Court of the learned Munsif, 2nd Court, Malda. It was alleged that the opposite parties Nos. 1 and 2 along with opposite party No. 3 were co-sharers of a raiyati holding which previously belonged to Enayat Ali Sk. After the death of Enayat Ali Sk. in 1370 B. S. his heirs obtained the property and they were in possession. Opposite parties Nos. 1 and 2 (who are petitioners in the said Miscellaneous case) purchased the property from Hafizul Sk. son of Enayat Ali by a Kobala dated 6th Aswin, 1381 B. S. and they became co-sharers. Emajuddin, another son of Enayat Ali, sold the disputed property to the petitioner of the present Rule (he was opposite party No. 1 in the Miscellaneous case) by a Kobala dated 8th Chaitra, 1381 B. S. corresponding to March 22, 1975 for Rs. 2,500/ -. Opposite parties Nos. 1 and 2 coming to know of the sale obtained certified copy and thereafter filed the application for pre-emption under Section 8 of the Land Reforms Act (hereinafter referred to as the Act) after deposit of the requisite amount. They also prayed for pre-emption on the ground that they are owners of the adjoining lands. In his written objection the petitioner, who was opposite party No. 1 in the Misc. case No. 133 of 1976, contended that the application was barred by limitation. The opposite parties had no right to claim for pre-emption as they were not the co-sharers.
( 2 ) THE learned Munsif allowed the application under Section 8 of the Land Reforms Act upon the finding that the petitioners of the said case had purchased the disputed holding on 6th Aswin 1381 B. S. and the opposite party of the said Misc. case was a stranger and had purchased in the month of Chaitra, 1381 B. S.
( 3 ) THE petitioner preferred an appeal before the learned District Judge. The said appeal has been dismissed. Before the learned District Judge, it was contended that the disputed property was recorded as a 'garden' in the R. S. Record of rights and also in the kobala by which the applicants had purchased and as such the application under Section 8 of the Land Reforms Act would not lie. Learned Judge repelled the contention on the ground that no such point was taken in the written objection and in the absence of specific pleading the contention that the disputed property was a 'garden' and not 'agricultural land' could not be permitted to be made out in the appeal.
( 4 ) BEING aggrieved the petitioner has obtained the present Rule. Mr. Mitter, learned Advocate for the petitioner, argued that though no objection was taken by the petitioner before the trial Court that the disputed property was a garden but evidence was adduced on this point and it was thus incumbent upon the Courts below to consider the said question. Mr. Mitter has further argued that even apart from that the R. S. Records show that the disputed plot No. 730 appertaining to Khatian No. 703 (Exhibit-B) was recorded as "bagan". The Kobala (Exhibit-1) by which the opposite parties Nos. 1 and 2 purchased the land describes the purchased land as 'lichu Garden'. Contention of Mr. Mitter is that this documentary evidence should not have been ignored by the learned Courts below while considering the nature of the disputed property sought to be preempted. Mr. Mitter argues that orchard is not an agricultural land as the purpose for which the land is used is not agriculture. Court will have no jurisdiction to make an order under Section 8 of the Act unless the land is agricultu
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