1997 Supreme(Cal) 156

High Court Of Calcutta
Nirendra Krishna Mitra
PRAFULLA KUMAR MAITY - Appellant
Versus
AMAL KRISHNA MISHRA - Respondent
C. O.  1421  Of  1988
Decided On : 04/04/1997

Co-sharers in a 'holding' as defined in section 2(6) of the West Bengal Land Reforms Act, 1955, are entitled to pre-empt the sale of a portion of the holding under section 8 of the Act, even if they have not been served with notice under section 5(5) of the Act.

Headnote:

PRE-EMPTION - WEST BENGAL LAND REFORMS ACT, 1955 - SECTION 8 - CO-SHARERS' RIGHT TO PRE-EMPT - EXTENT OF PRE-EMPTION RIGHTS - INTERPRETATION OF RELEVANT PROVISIONS.

Fact of the Case:

The petitioner purchased a portion of a plot of land from Bhupen Maity, who was a co-sharer in the said plot along with Ramesh Maity. The opposite parties, who were also co-sharers in the plot, filed an application for pre-emption of the sale under section 8 of the West Bengal Land Reforms Act, 1955. The petitioner contested the application, arguing that the land in question was non-agricultural and therefore not subject to pre-emption under section 8. The trial court and the appellate court dismissed the pre-emption application, holding that the land was non-agricultural. The opposite parties filed a revision petition in the High Court, which remanded the case back to the trial court for a fresh decision. The trial court again dismissed the pre-emption application, holding that no notice was served upon Ramesh Maity and the opposite parties under section 5(5) of the Act. The opposite parties appealed to the appellate court, which also dismissed the appeal. The opposite parties then filed a revision petition in the High Court.

Finding of the Court:

The High Court held that the trial court and the appellate court erred in dismissing the pre-emption application. The court held that the land in question was a 'holding' as defined in section 2(6) of the West Bengal Land Reforms Act, 1955, and was therefore subject to pre-emption under section 8 of the Act. The court further held that the opposite parties, as co-sharers in the plot, were entitled to pre-empt the sale, even though they had not been served with notice under section 5(5) of the Act. The court also held that the opposite party No. 4, who had purchased a portion of the plot from Ramesh Maity after the disputed sale, was also entitled to pre-empt the sale.

Issues: 1. Whether the land in question was a 'holding' as defined in section 2(6) of the West Bengal Land Reforms Act, 1955, and was therefore subject to pre-emption under section 8 of the Act. 2. Whether the opposite parties, as co-sharers in the plot, were entitled to pre-empt the sale, even though they had not been served with notice under section 5(5) of the Act. 3. Whether the opposite party No. 4, who had purchased a portion of the plot from Ramesh Maity after the disputed sale, was also entitled to pre-empt the sale.

Ratio Decidendi: 1. The court held that the land in question was a 'holding' as defined in section 2(6) of the West Bengal Land Reforms Act, 1955, and was therefore subject to pre-emption under section 8 of the Act. The court relied on the definition of 'holding' in section 2(6), which includes 'land held by a raiyat and treated as a unit for assessment of revenue'. The court held that the land in question was held by a raiyat (Bhupen Maity) and was treated as a unit for assessment of revenue, and was therefore a 'holding'. 2. The court held that the opposite parties, as co-sharers in the plot, were entitled to pre-empt the sale, even though they had not been served with notice under section 5(5) of the Act. The court held that section 5(5) of the Act only requires notice to be served on the transferor and the transferee, and does not require notice to be served on co-sharers. The court further held that the opposite parties were co-sharers in the plot at the time of the sale, and were therefore entitled to pre-empt the sale. 3. The court held that the opposite party No. 4, who had purchased a portion of the plot from Ramesh Maity after the disputed sale, was also entitled to pre-empt the sale. The court held that the opposite party No. 4 had become a co-sharer in the plot by virtue of his purchase from Ramesh Maity, and was therefore entitled to pre-empt the sale.

Final Decision: The High Court allowed the revision petition and remanded the case back to the trial court for a fresh decision in accordance with the court's findings.