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AJOY KUMAR MUKHERJEE
Dibakar Roy – Appellant
Versus
Mahadeb Samanta – Respondent
JUDGMENT :
AJOY KUMAR MUKHERJEE, J.
1. Being aggrieved and dissatisfied with the order no. 32 dated 17th August 2019 passed by the Additional District Judge, 1st Court, Suri, Birbhum in Miscellaneous appeal No. 2/2017, present application under Article 227 of the Constitution of India has been preferred.
2. Petitioners contended that the petitioner filed an application under section 8 of the West Bengal Land Reforms Act 1955 before the Civil Judge, 1st (Junior Division) Court at Bolpur being Misc. Case No. 28/2011. Petitioner’s contention in the said pre-emption case is that ‘kha’ schedule property originally belonged to Nilkantha Roy and after his death the same was devolved upon his three sons namely Ganapati, Sripati and Ramapati Roy in equal share. Subsequently 1/3rd share of Sripati devolved upon his five sons, out of which pre-emptor is one of the said sons. Property in question never partitioned among co-sharers. Subsequently 1/3rd share of Rampati devolved upon his two sons Gadadhar and Gangadhar. Gadadhar and his wife subsequently transferred their share in favour of pre-emptee described in ‘kha’ schedule. The pre-emptee is a stranger to the property in question, therefore on
The main legal point established is that amendments should be allowed to place all relevant information before the court for final adjudication, unless serious injustice or irreparable loss is caused....
The right of preemption is a statutory right that does not encompass the adjudication of title disputes, which must be resolved in separate proceedings.
(1) Pre-emption – In a proceeding of pre-emption question of title in respect of title deeds rarely come up for adjudication as right of pre-emption is not a personal right and is attached with land.....
Amendments to pleadings under Order VI Rule 17 of CPC should be allowed if necessary for determining real issues, provided they do not cause injustice to the other party.
Amendments to pleadings under Order VI Rule 17 of CPC should be allowed if necessary for justice and do not change the nature of the suit.
Amendment of plaint – Any amendment which changes nature of suit is required to be declined.
The courts affirmed that oral partition lacks recognition under the West Bengal Land Reforms Act, maintaining pre-emptors as co-sharers, thus preserving their right of pre-emption.
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