Smt. Angur Bala Ghosh And Others vs Smt. Jharna Ghosh
2021 Latest Caselaw 4226 Cal

12th August,

(AK)

C.O. 1359 of 2020

Smt. Angur Bala Ghosh and others Vs.

Smt. Jharna Ghosh

(Via video conference)

Mr. Saptarshi Kumar Kundu ... For the Petitioners.

Despite service, none appears on behalf of the

opposite party.

Learned counsel for the petitioner contends that

both the courts below acted without jurisdiction in

rejecting the petitioners' pre-emption application under

Section 8 of the West Bengal Land Reforms Act, 1955 on

the ground that the same was bad for having sought

partial pre-emption.

However, by placing the relevant portions of the

order of the trial court, learned counsel stresses that the

trial court itself had, in the previous part of its judgment,

observed that, in the instant case, since the entire Plot

no.120 was purchased by the pre-emptee, no pre-emption

lay in respect of the said plot and, as such,

abandonment/relinquishment of the petitioners' prayer

for pre-emption in respect of Plot no.120 would not

render the application for Plot no.114 bad on the ground

of partial pre-emption.

Despite having arrived at such finding, the trial

court erroneously rejected the pre-emption application as

not maintainable, thereby creating a clear contradiction

between the conclusion and the reasoning portion of the

trial court's order.

Despite having found that the petitioners are co-

sharers in respect of the disputed property, the trial court

rejected the pre-emption application on the above score.

The appellate court affirmed such findings, without

going into the question raised by the trial court as

regards the pre-emption application not being one for

partial pre-emption merely because the claim as regards

one of the plots, in which entire share was sold and thus

pre-emption was not maintainable, was abandoned and

the pre-emption application remained valid in respect of

the other plot.

Hence, the impugned order suffers from gross

jurisdictional error.

C.O. 1359 of 2020 is, thus, allowed, thereby

setting aside Order no.42 dated October 1, 2019 passed

by the Additional District Judge at Kalyani, District-Nadia

in Miscellaneous Appeal No. 12 of 2013, affirming the

order dated July 19, 2013 passed by the Civil Judge

(Junior Division) at Kalyani, District-Nadia in

Miscellaneous Case No.36 of 2009 and remanding

Miscellaneous Case No.36 of 2009 to the trial court for

being re-heard on merits in the light of the above

observations.

It will be open to the court of first instance to give

further opportunity to both sides to argue the matter

and/or adduce additional evidence, if required, before

deciding the pre-emption application afresh.

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.)