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IN THE HIGH COURT OF CALCUTTA
Ashoke Kumar Dasadhikari, J.
Purna Chandra Das & Anr. - Petitioners
Versus
Dulal Chandra Parya - Opposite Party
C.O. No. 4031 of 2012
Decided On : 01-10-2015
PREEMPTION - LAND REFORMS ACT - SECTIONS 8 AND 9 - CO-SHARER OR ADJOINING OWNER - RIGHT TO PREEMPT - INTERPRETATION.
Fact of the Case:
In a preemption case, the petitioner sought to preempt 9 decimals of land transferred to the opposite party/pre-emptor by virtue of a registered sale deed. The petitioner claimed that he was the owner of the adjoining land and was, therefore, entitled to preempt the land in question. The opposite party/pre-emptor, on the other hand, claimed that he was a co-sharer of the plot of land and, as such, was entitled to preempt the land.
Finding of the Court:
The learned Trial Court dismissed the petitioner's application for preemption, holding that the opposite party/pre-emptor was not an adjoining owner and was not a co-sharer of the plot of land. The learned Appellate Court, however, allowed the appeal filed by the opposite party/pre-emptor, holding that he was a co-sharer of the plot of land and was, therefore, entitled to preempt the land.
Issues: 1. Whether the opposite party/pre-emptor was a co-sharer of the plot of land? 2. Whether the opposite party/pre-emptor was an adjoining owner of the plot of land? 3. Whether the opposite party/pre-emptor was entitled to preempt the land in question?
Ratio Decidendi: The Court held that the opposite party/pre-emptor was a co-sharer of the plot of land and was, therefore, entitled to preempt the land in question. The Court relied on the following principles: 1. A person may become a co-sharer over a plot of land if he purchases any portion of plot number of land with the owner of the plot of land. 2. To negative the claim of co-sharership, the land of the co-sharers must be partitioned by metes and bounds as per view of Section 14 of the W.B.L.R. Act. 3. The averments in the deed is made for proper identification of the transfer property and it cannot be said that by such averment the plot was partitioned by metes and bounds from the petitioner with the erstwhile owner of the suit property.
Final Decision: The Court dismissed the revisional application filed by the petitioner.
Ashoke Kumar Dasadhikari, J.
The order dated 28th September, 2012 passed by the learned 6th Additional District Judge, Paschim Medinipur in Misc Appeal No. 35 of 2011 allowing the permission in favour of the pre-emptor/petitioner reversal of the order dated 28th January, 2011 passed by the learned Civil Judge, Junior Division 1st Court, Paschim Medinipur in Misc. Case No.32 of 2009 is under challenge in this revisional application.
2. Facts revealed in this case is that one Gourhari Adak was the owner of 19 decimals of land in plot no. 566 under Mouza – Khelna under P.S. Sabong, Paschim Medinipur out of total 19 decimals of land Gourhari sold 9 decimals to the opposite party/pre-emptor by a registered sale-deed dated 14th June, 1994 and delivered possession in favour of the opposite party/pre-emptor. Thereafter, said Gourhari while exercising his right, title and interest and possession over the rest 10 decimals of land, transferred 9 decimals to the petitioner/pre-emptee by virtue of registered sale-deed dated 5th June, 2009. The registration was completed on the same day. After the said 9 decimals was transferred, the opposite party/pre-emptor filed one application for preemption of 9 decimals of land in question which was transferred to the petitioner/pre-emptee. The petitioner/pre-emptee contested the preemption case by filing his objection against the petition filed by the opposite party/pre-emptor. Paragraph 13 of the written objection filed by the petitioner/pre-emptee is quoted hereunder:
“That the opposite party humbly submit that by virtue of Regd. Deed of sale being No. 2630 dated 5.6.2009 in favour of the opposite parties no part of land has been transferred, rather by the impugned deed of transfer owner of the land transferred his entire land of the plot in question to the O.Ps. and the petitioner has no land adjoining to the case plot. The petitioner is neither a co-sharer nor holding land adjacent to the case plot and thereby the claim of pre-emption is not maintainable at all in the present form and prayer and the instant case is liable to be dismissed with cost.”
3. In the written objection the petitioner/pre-emptee claimed entire portion of the land, since transferred in his favour and the petitioner having no adjoining land to the suit plot and the petitioner being neither a co-sharer nor holding of the adjacent land of the suit plot, the case of preemption is not maintainable.
4. Considering the case made out by the respective parties, the learned Trial Court formulated seven issues, which are as follows:
“1. Whether the present case is maintainable in its form and law ?
2. Is the case barred by law of limitation?
3. Whether a portion or share of a plot of land of raiyat has been transferred in favour of the O.Ps.
4. Whether the petitioner is entitled to the right to pre-emption of the case land without depositing full consideration money of the impugned deed dated 05.06.2009;
5. Whether the petitioner is the owner holding adjoining land to the case land of Raiyat transferred as alleged;
6. Whether the right of pre-emption of petitioner, if any, exist;
7. Whether the petitioner is entitled to get any relief of pre-emption as prayed for.”
5. Issue nos. 1, 2 and 3 were decided in favour of the petitioner/pre-emptee with a finding that a portion or share of a plot of land of raiyat has been transferred in favour of the petitioner/pre-emptee. So far the point nos. 4 to 7 are concerned the learned Trial Court held that the opposite party/pre-emptor could not satisfy the Court that he had become co-sharer by purchase. The learned Court below also came to conclusion that the property sold in favour of the opposite party/pre-emptor in the year 1994 for which possession was delivered was bounded by specific boundary and thus separated. Therefore, the opposite party could not become a co-sharer. It was also held that the opposite party/pre-emptor had no land adjacent to the suit-plot no. 566, out of which 9 decimals wer
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