Represented By Nilanjan Saha And ... vs Smt. Sabita Rani Saha
2021 Latest Caselaw 4413 Cal

AD. 159.

August 26, 2021.

MNS.

C. O. No. 4715 of 2006 with CAN 4 of 2019(Old No. CAN 7295 of 2019) (Via video conference) Smt. Aruna Saha, since deceased, represented by Nilanjan Saha and others Vs.

Smt. Sabita Rani Saha

Mr. Sibasis Ghosh, Mr. Hare Krishna Halder, Mr. Ardhendu Nag

... for the petitioners.

Mr. Probal Kumar Mukherjee, Ms. Shaaoni Dey

...for the opposite party.

It is submitted by learned counsel for the

petitioners that the preemption application of the

petitioners on the ground of contiguous

ownership was dismissed by both the courts

below on erroneous grounds. Despite the

existence of specific sale deeds of the

predecessor-in-interest of the petitioners, as well

as the original petitioner, which show specific

demarcation of the subject matter of such deeds,

the courts below arrived at the perverse findings

that, in view of non-compliance of Section 14 of

the West Bengal Land Reforms Act, 1955(in short

1955 Act), the contention regarding contiguous

ownership is not sustained. It is further pointed

out that the original sole owner of the property

herself had demarcated the properties and sold

such a portion, which was transferred ultimately

to the petitioner and the other portion went to the

preemptee.

It is further contended that despite specific

dakhilas and tax receipts having been produced

in support of the petitioners' contentions, the

courts below proceeded on the erroneous footing

that separate demarcation and physical

possession of the properties-in-question was not

proved before the courts below.

Moreover, counsel relies on the cross-

examination of D.W.1 to argue that the said

witness made certain vital admissions which

strengthen the petitioners' case.

That apart, the appellate court also arrived

at the finding that since the property sought to be

preempted is in the nature of 'bastu', the

preemption application was not maintainable.

Learned counsel appearing for the

petitioners cites the following judgments in

support of his contentions:

1) 2016(2) CHN (CAL) 489 [Sanjay Halder

Vs. Budhan Rajak] and

2) 1998(2) ICC 269 [Gobinda Chandra

Maity Vs. Rabindra Nath Bera and

another].

Learned senior counsel appearing for the

opposite party contends that, on a perusal of the

specific language of Section 8 of the 1955 Act, it

is evident that, to acquire a right of preemption on

the ground of adjoining ownership, the preemptor

has to prove that he or she owns a 'plot' of land

adjacent to the property sought to be preempted.

In the present case, both the courts below

categorically found that nothing was shown to

prove that the petitioners are in possession of

separate plots, equating the expression "plot" with

khatian/khanda khatian and/or dags.

That apart, the other essential ingredients,

regarding the preemptors having the longest

common boundary, was not proved by the

preemptors despite specific challenge to the

same having been thrown by the preemptee.

Learned senior counsel goes on to argue

that the criteria stipulated in Section 14M of the

1955 Act, pertaining to ceiling of land, was never

satisfied at any point of time by the preemptors,

either by specific pleading or proof.

As such, it is argued by the opposite party

that the preemption application was rightly

rejected by both the courts below.

Since learned counsel are justified in

submitting that the preemptors have to succeed

on both scores, that is, on the aspect whether the

preemptors are contiguous owners within the

purview of Section 8 of the 1955 Act and whether

an application for preemption under Section 8 is

maintainable in respect of a 'bastu' property. If

even one of such issues goes against the

preemptors, the preemptors shall not be entitled

to preemption, which would justify the dismissal

of the revisional application at this stage.

As regards the issue pertaining to 'bastu',

the matter is under reference before a larger

Bench, which is still pending. As such, in order to

maintain judicial decorum, the said point ought

not to be decided by this Court, sitting singly, in

view of the question being under consideration by

a larger Bench.

However, since counsel for both parties

have been heard on the question of contiguous

ownership and since the decision thereon might

or might not affect the final result of the revisional

application itself at this juncture, judgment is

reserved in the matter.

It is made clear that, in the event, the

arguments of the preemptors/petitioners are

accepted on contiguous ownership, the final

decision in the revisional application shall remain

suspended, pending decision by the larger Bench

on the issue of 'bastu'. Otherwise, the revisional

application will be disposed of by a final judgment

and order without awaiting the outcome of the

larger Bench reference.

(Sabyasachi Bhattacharyya, J.)