Sri Atanu Ghosh vs Prabhash Chandra Dey And Others
2021 Latest Caselaw 4221 Cal

12th August,

(AK)

C.O. 563 of 2009

Sri Atanu Ghosh Vs.

Prabhash Chandra Dey and others

(Via video conference)

Mr. Tanmoy Mukherjee Mr. Amal Kumar Saha Mr. Iresh Paul ... For the Petitioner.

Mr. Tapash Kumar Bhattacharya Mr. Aviroop Bhattacharya ...For the Opposite parties.

The pre-emptee in a proceeding under Section 8 of

the West Bengal Land Reforms Act, 1955 has preferred

the instant revisional application against the order of the

appellate court below, whereby the appellate court set

aside the order of dismissal of the trial court and granted

preemption to the opposite party on the ground of co-

sharership.

Learned counsel for the petitioner raises a short

question for consideration in the present revision. In the

facts of the case, one Bangal and one Bholanath were the

original co-owners of the plot-in-question. The heirs of

Bangal sold a portion of Bangal's share to the present

preemptor in the year 1999.

On the other hand, a portion of Bholanath's share

was sold to one Laxmi. It is significant to mention here

that the sale in favour of Laxmi was executed by both

Bangal and Bholanath together, by the same deed,

thereby transferring a specifically demarcated portion of

their land to Laxmi, in the year 1961.

It is contended by learned counsel for the petitioner

that, by virtue of such transfer, Laxmi became the

absolute owner of the specifically demarcated portion sold

by both the co-owners to him. The pre-emptee, being the

present revisionist-petitioner, purchased the property

from Laxmi in the year 2004.

Learned counsel contends that the pre-condition of

Section 8 of the 1955 Act coming into operation is that

the transfer sought to be preempted is not in favour of a

co-owner of the property sought to be preempted and that

the persons entitled to preemption are to be either

bargadar, or co-sharer or contiguous of the portion or

share transferred.

In the present case, the property-in-question, which

is sought to be preempted, was sold in its entirety not by

one of the co-owners but by both the co-owners, as a

single body, by specifically demarcating the same, to

Laxmi as an absolute owner who sold the same

subsequently to the pre-emptee who, by such transfer,

also became the absolute owner of a separate piece of

land, independent and demarcated from the plot of land

which is the subject-matter of pre-emption.

As such, the preemption application was not

maintainable and ought to have been dismissed by the

appellate court, although on grounds different than the

trial court.

      Learned      counsel          appearing    for    the

preemptors/opposite       parties       controverts    such

submissions and contends that unless there is partition

as recognized by Section 14 of the 1955 Act by metes and

bounds, either by a court's decree or by a registered deed,

the co-ownership in respect of the property is not

obliterated.

Hence, it is argued that there cannot be any doubt

that the preemptor was a co-owner in respect of the

property and, as such, entitled to a right of preemption of

the transfer.

Learned counsel for the opposite party, in support

of his contention, cites the judgments of Bula Kundu Vs.

Nirmal Kumar Kundu, reported at 2000 (1) CHN 505, and

Satish Chandra Mondal Vs. Sourav Mondal, reported at

2015 (2) CHN (CAL) 616, and an unreported judgment

passed in Sk. Abdul Odud Ali Vs. Emanulla Khan and

others, all rendered by learned single Judges of this court,

in support of his contention.

Learned counsel further cites Saibar Rahaman Vs.

Munshi Md. Hedayatulla reported at 2015 (2) CHN (CAL)

228, to harp on the ratio laid down therein, that an

application for preemption is maintainable even when the

co-sharer has transferred his share in its entirety.

However, the said judgments are not applicable in

the facts of the instant case, inasmuch as the principles

laid down therein are completely different from the

question which has fallen for consideration in the present

lis.

In the present context, it is evident from the sale-

deed executed in 1961 in favour of Laxmi that not only

did the same effect a segregation, by specific demarcation

and mention in the schedule of the sale deed, but was

executed by both the co-owners, as a single body, in

unison.

The effect of such transfer would be that, similar to

the sale of a demarcated portion by a single owner, the

entire ownership of all the co-owners in the said

demarcated portion was transferred in favour of Laxmi,

through whom the pre-emptee claims by dint of a

purchase deed of 2004.

Hence, in 1999, when the pre-emptor purchased a

portion of the property from some of the co-sharers in the

rest of the property, leaving aside the previously

demarcated portion (which had attained independent and

absolute character as far as back as in 1961), the pre-

emptor only derived title in respect of a portion of the rest

of the property, other than that sold out to Laxmi in

1961, and became a co-owner in a limited sense only in

respect of such balance land.

It is also evident from the deed of 1961 that the

northern boundary of the transferred land, as per the

description of the schedule of the deed, was clearly

specified to be butted and bounded by other land of both

the co-owners, from which a portion was subsequently

sold to the pre-emptor.

Hence, even if the pre-emptor is a co-owner vis-à-

vis the other co-owners, such co-ownership is, at best,

restricted to the portion which was not sold to Laxmi and

thereafter to the pre-emptee.

As far as the pre-emptee's portion is concerned,

first Laxmi and then the pre-emptee became absolute

owners respectively, since the original transfer was

effected upon demarcation by both the co-owners as a

single body.

Section 8 of the 1955 Act is clearly qualified by the

rider that the right to preemption arises only when a

"portion or share" of a plot of land is transferred.

However, in the instant case, the entire property of Laxmi,

which acquired independent and separate character in

the year1961, was transferred to the preemptee in 2004,

thereby not attracting Section 8 at all.

In such view of the matter, the order of the

appellate court cannot stand the scrutiny of law. In the

present case, the operation of Section 8 of the 1955 Act is

precluded altogether, since no portion or share of a plot of

land sought to be pre-empted, that is, the preemptee's

land, was transferred in 2004. Moreover, the preemptors

were at best co-owners of the adjacent plot of land,

retained jointly by the original owners post-transfer to

Laxmi, and had no nexus with the land of which the sale

was sought to be preempted, of which the preemptee was

the sole and absolute owner.

Hence, it cannot be said that the preemptors were

co-owners of the preemptee's land or that any "portion or

share" of the adjacent plot of land, jointly owned by the

preemptors, was sold to the preemptee.

Thus, the appellate court acted without jurisdiction

in granting the pre-emption on the ground of co-

sharership.

As such, C.O. 563 of 2009 is allowed, thereby

setting aside the order passed by the appellate court

granting pre-emption to the opposite party.

There will be no order as to costs.

Urgent website certified copies of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Sabyasachi Bhattacharyya, J.)