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High Court Of Calcutta
Bhaskar Bhattacharya
BHADRESWAR BERA - Appellant
Versus
MATHURA MOHAN SHAW - Respondent
C. O. 1732 Of 2004
Decided On : 09/10/2004
PRE-EMPTION - WEST BENGAL LAND REFORMS ACT - SECTION 8 - CO-SHARER OF A RAIYAT IN A PLOT OF LAND - INTERPRETATION - ADJOINING OWNERSHIP - POSSESSION OF CONTIGUOUS PORTION OF DISPUTED PLOT NOT NECESSARY - SUBSEQUENT ACQUISITION OF CO-SHARERSHIP BY PRE-EMPTEE CANNOT FRUSTRATE PRE-EMPTION RIGHT.
Fact of the Case:
A pre-emption application was filed under Section 8 of the West Bengal Land Reforms Act by the opposite party No. 1 claiming to be an adjoining owner of the plots involved in the sale transaction executed by the opposite party Nos. 2 to 6 in favor of the petitioner. The petitioner contended that the pre-emptor had no share in the adjoining plots and that the application was barred by limitation.
Finding of the Court:
The court held that the pre-emptor was a co-sharer of the adjoining plots even though he was in possession of a particular portion by mutual arrangement with the other co-sharer. The court also held that it was not necessary for the pre-emptor to prove that he was in possession of the contiguous portion of the disputed plot. The court further held that the subsequent acquisition of co-sharership by the pre-emptee could not frustrate the pre-emption right of the pre-emptor.
Issues: 1. Whether the pre-emptor, being in possession of a demarcated portion of the adjoining plots by mutual arrangement, ceased to be a co-sharer under the amended definition in Section 2(6) of the Act. 2. Whether it was necessary for the pre-emptor to prove actual possession of the portion of the adjoining plot immediately contiguous to the land transferred by the disputed transaction. 3. Whether the subsequent acquisition of co-sharership by the pre-emptee could extinguish the right of the pre-emptor.
Ratio Decidendi: 1. The court held that the amended definition in Section 2(6) of the Act, which defines "co-sharer of a raiyat in a plot of land," does not extinguish the un-demarcated interest of co-sharers who remain in occupation of a particular demarcated portion by mutual arrangement, in the absence of a registered deed of partition. 2. The court held that it was not necessary for the pre-emptor to prove actual possession of the contiguous portion of the disputed plot, as all that was required was for the pre-emptor to prove that he was a raiyat possessing land adjoining the plot of land transferred by the disputed transaction. 3. The court held that the subsequent acquisition of co-sharership by the pre-emptee could not extinguish the right of the pre-emptor, as the right of a pre-emptor which has accrued to pre-empt a particular transaction cannot be frustrated by the pre-emptee by acquisition of co-sharership in the plot by virtue of a subsequent transaction.
Final Decision: The court dismissed the pre-emptee's application under Article 227 of the Constitution of India with costs.
( 1 ) THIS application under Article 227 of the Constitution of India is at the instance of a pre-emptee in proceedings under section 8 of the West Bengal land Reforms Act (hereinafter referred to as the Act) and is directed against order dated 5th May, 2004 passed by the learned Additional District Judge, lst track Court, Chandernagore in Misc. Appeal No. 167 of 1995 thereby setting aside Order No. 24 dated August 30, 1995 passed by the Munsif, 1st Court, chandernagore in Misc. Case No. 10 of 1987.
( 2 ) THE opposite party No. 1 filed the aforesaid Misc. Case No. 10 of 1987 under section 8 of the Act for pre-empting a sale transaction executed by opposite party Nos. 2 to 6 in favour of the present petitioner on the allegation that he is an adjoining owner of the plots involved in the said transaction.
( 3 ) THERE is no dispute that by a registered sale deed executed on 8th October, 1986 the opposite party Nos. 2 to 6 transferred two plots, namely, plot Nos. 1034 and 87 in favour of the present petitioner. The specific case of the pre-emptor is that he is the co-sharer of the adjoining plots, namely, plot Nos. 1033 and 85. The opposite party No. 1 claimed that the plot No. 1033 is adjoining to plot No. 1034 while plot No. 85 is contiguous to plot No. 87.
( 4 ) THE aforesaid application for pre-emption was opposed by the present petitioner thereby disputing the allegations made in the application for preemption. According to the petitioner, the opposite party No. 1 had no share in plot No. 1033 and at the same time, those are not adjoining plots. It was further contended that the application was barred by limitation. The specific case of the petitioner was that plot No. 1033 although belonged to the father of the pre-emptor but the said plot was allotted to one Haradhan Saha, the brother of the pre-emptor and his name was published in the modified settlement record- of-right. As regards the ownership in plot No. 85, it was, however, admitted that the pre-emptor got his father's share in plot No. 85 in lieu of disclaiming his share in plot No. 1033 and other plots but he is not in possession of that portion of the said plot No. 85 which is adjacent to plot No. 87 and consequently, he cannot be said to be the longest boundary man in respect of plot No. 87 so as to claim pre-emption on the ground of adjoining ownership.
( 5 ) THE learned Trial Judge on consideration of the materials on records, dismissed the application filed by the opposite party No. l on the ground that plot No. 1033 was allotted in favour of brother of pre-emptor and as such, he had no share in the property. As regards plot No. 85 it was held that the petitioner was a co-sharer but other co-sharer was not made party and consequently, the petitioner was not entitled to pre-empt plot No. 87 on the basis of his share in plot No. 85.
( 6 ) BEING dissatisfied, the opposite party No. 1 preferred an appeal before the learned First Appellate Court below and by the order impugned herein, the said Court has set aside the order passed by the learned Trial Judge and has allowed the prayer for pre-emption with the finding that there was no partition between pre-emptor and his brother and that the petitioner is the co-sharer in both plot Nos. 1033 and 85. It may not be out of place to mention here that before the learned First Appellate Court below, on the application of the opposite party No. 1 under Order 41 Rule 27 of the Code of Civil Procedure, some additional documents, namely, certified copy of a deed dated 20th April, 1993, map of concerned mouza and four sheets of R. S. record-of-rights were marked as additional evidence. Similarly, original sale deed dated 8th October, 1986, attested copy of R. S. Khatian, L. R. Khatian were marked as Exhibits B, C and d on behalf of the present petitioner.
( 7 ) BEING dissatisfied, the pre-emptee has come up with the present application under Article 227 of the Constitution of India.
( 8 ) MR. Bagch
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