Niranjan Saha And Others vs Smt. Sabita Rani Saha
2021 Latest Caselaw 4735 Cal

10.09.2021

CO No.4715 of 2006 With CAN 4 of 2019 (Old No. CAN 7295 of 2019)

Aruna Saha, since deceased, represented by Sri Niranjan Saha and others Vs.

Smt. Sabita Rani Saha

(Via video conference)

Mr. Sibasis Ghosh, Mr. Hare Krishna Halder, Mr. Ardhendu Nag .... for the petitioners

Mr. Probal Kumar Mukherjee, Ms. Shaaoni Dey

.... for the opposite party

The present revisional application has been filed

against the judgment and order of the Appellate Court

confirming an order of the Trial Court, dismissing the

petitioners' preemption application under Section 8 of

the West Bengal Land Reforms Act, 1955 (in short

1955 Act).

Learned counsel for the petitioners contends

that, the petitioners having produced sale deeds in

favour of the petitioners as well as previous chain-

deeds, along with dakhilas and tax receipts, to show

that the original owner of the property had transferred

specific demarcated portions to the predecessor-in-

interest of the pre-emptors as well as the pre-emptee

respectively, both the courts below proceeded on an

erroneous premise that no partition by metes and

bounds, either by a decree of a competent Court or a

registered deed, as contemplated under Section 14 of

the 1955 Act, was proved.

Learned counsel places reliance on the judgment

delivered in Sanjay Halder Vs. Budhan Rajak, reported

at 2016 (2) CHN (CAL) 489, wherein a learned co-

ordinate Bench of this Court had held that if a well-

demarcated portion is sold by the original owner of a

plot of land, the purchaser does not become the co-

sharer with the original owner.

It was further held that if a raiyat, being the sole

owner of the entire plot of land, sells out a well-

demarcated portion of the land to different purchasers

by different deeds, then each purchaser becomes the

sole owner of the demarcated portion purchased by

him and none of them become co-sharer of that land.

By placing reliance next on Gobinda Chandra

Maity Vs. Rabindra Nath Bera and another, reported at

1998 (2) ICC 269, another judgment of a co-ordinate

bench of this Court, learned counsel for the petitioner

argues that, in that case, since the deed of transfer

was unregistered, the pre-emptor was deemed to

continue as a co-sharer along with the pre-emptee in

view of Section 14 of the 1955 Act as, by that said

deed, separate independent title to a specific portion

never accrued to the parties.

However, it is contended that the ratio of

Gobinda Chandra Maity (supra) is not applicable in the

present case, in view of all the transferred deeds-in-

question having been registered in accordance with

law. Rather, it is argued that the proposition laid

down in Sanjay Halder (supra) is squarely applicable

to the present case. As such, it is submitted, the

courts below acted without jurisdiction in refusing

preemption on the ground of contiguous ownership

due to alleged non-compliance of Section 14 of the

1955 Act.

Learned counsel appearing for the

preemptor/opposite party contends that, despite the

sale deeds-in-question having depicted adjacent

portions of the property to have been transferred to

the predecessor-in-interest of the parties, nothing was

produced by the petitioners to show that such

transferred portions were allocated separate dag

numbers or khatian/khanda khatian numbers. It is

argued by learned counsel that the expression "plot",

as used in Section 8 of the 1955 Act, can be equated

with such dags and/or khatians/khanda khatians.

It is next argued that a preemption order under

Sections 8 and 9 of the 1955 Act is to be preceded by

satisfaction of the court regarding the ceiling area, as

provided in Section 14M of the 1955 Act, owned by the

pre-emptors. However, in the absence of any

adjudication on such score, as reflected from the order

of both the courts below, it should be deemed that

such issue was not considered and/or should be

deemed to have been held against the petitioners,

since the pre-emption application itself was dismissed.

It is further argued by learned Senior Counsel

for the preemptee that the petitioners failed to prove

that they were contiguous owners having the longest

common boundary, which is a pre-requisite for

passing an order of preemption under Section 8 of the

1955 Act on the ground of contiguous ownership.

Upon considering the submissions of the

parties, the limited question which falls for

adjudication at the present juncture is, whether the

courts below were justified in granting the order of

preemption in the light of the arguments made by

learned counsel for the parties, as recorded above.

It is evident from the sale deeds, not only of the

parties but those executed in favour of their

predecessors-in-interest by the original owner, that

specific, demarcated portion of lands were transferred

thereby.

The argument of the opposite party, as regards

the term "plot" used in Section 8 of the 1955 Act being

the same as dag or khatian/khanda khatian numbers,

is not supported by any law for the time being in force.

In view of the expression "plot" having not been

defined in the 1955 Act, the same has to be taken in

its generic sense or dictionary meaning, which is, a

tract or parcel of specifically demarcated land owned

or meant to be owned by a person.

In the present case, in view of the specific

demarcation of the plots of land transferred by the

original owner having been borne out by the sale

deeds by way of the description of the plots in the

transfer deeds themselves, Section 14 of the 1955 Act

is not attracted at all. Since separate and specific

demarcated parcels or plots of land were sold out by

the original owner, the joint character of the entire

property ceased then and there and separate plots of

land came into existence. Hence no question of further

partition could arise subsequently.

The proposition laid down in Sanjay Halder

(supra) is, thus, squarely attracted to the present case,

as rightly contended by the petitioners. As far as

Gobinda Chandra Maity (supra) is concerned, the said

judgment was rendered on a different issue than the

present case and, as such, is not binding as a

precedent as regards the issue at hand.

Regarding the objections as to non-compliance

of Section 14M of the 1955 Act, since there was no

adjudication by either of the courts below on such

score, nor any specific objection raised or dealt with by

the courts below on the ground of bar under Section

14M by the opposite party, the question cannot be

raised for the first time in the revisional court. The

question, whether the land held by the pre-emptor fell

within the ceiling limit as prescribed in Section 14M of

the 1955 Act, is a mixed question of law and fact and,

in the absence of any such specific objection having

been taken and/or dealt with in the courts below,

which were the last courts of facts, the said issue

cannot be raised for the first time in this revisional

application. Hence, such contention of the opposite

party is also turned down.

A plain reading of Section 8 of the 1955 Act

makes it clear that the third proviso thereto clearly

uses the phrase "as amongst raiyats possessing lands

adjoining such plot land with the land transferred."

The very language of the said proviso makes it

amply clear that, only in case of a competitive bid for

pre-emption by several parties, the longest common

boundary will be the deciding factor.

However, in the present case, the petitioners

claimed pre-emption as a single body and, hence,

there could not be said to be other contending pre-

emptors to attract the third proviso to Section 8.

Hence, such question is irrelevant and academic

for the adjudication of the issues at hand.

In view of the above discussions, I am of the

clear opinion that the petitioners are entitled to pre-

emption on the ground of contiguous ownership as

contemplated in Section 8 of the 1955 Act.

However, since the other question, relating to

whether a bastu property can be the subject-matter of

pre-emption under Section 8 of the 1955 Act, is

pending under reference before a larger Bench, the

revisional application cannot be disposed of

immediately.

However, the above issue regarding the

entitlement of the petitioners to pre-emption on the

basis of contiguous ownership, is decided finally in

favour of the petitioners.

Let C.O. No.4715 of 2006 be enlisted for hearing

before the appropriate Bench having determination

immediately after the reopening of court subsequent to

the oncoming long vacation, for the purpose of further

hearing on the question of bastu, subject to the

decision of the larger Bench in the matter pending on

that score, and for disposal of the revisional

application in accordance with the resultant decision.

In view of successful pre-emptors being entitled

in law to all accretions and/or developments on the

land sought to be preempted, no injunction need be

passed at the present stage restraining the opposite

parties from changing the nature and character of the

suit property. However, any subsequent sale would

create unnecessary multiplicity and multiply

necessary parties to the suit, CAN 4 of 2019 (Old No.

CAN 7295 of 2019) is disposed of by restraining the

opposite party from transferring, alienating and/or

encumbering the suit property in favour of third

parties, in any manner whatsoever, during pendency

of the revisional application.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)