Ratan Dhar vs Sunil Kumar Pal & Ors
2022 Latest Caselaw 133 Cal

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                     IN THE HIGH COURT AT CALCUTTA

                     CIVIL REVISIONAL JURISDICTION

                            APPELLATE SIDE

   Present:-

   THE HON'BLE JUSTICE Kesang Doma Bhutia.



                            C.O. No. 639 of 2005
                                Ratan Dhar
                                    VS.
                          Sunil Kumar Pal & Ors.
                                  With
                           C.O. No. 1366 of 2021
                                    With
                               CAN 1 of 2021


For the Petitioner            : Mr. Mukteswar Maity
Hearing concluded on          : 21.12.2021

Judgment on                   : 19.01.2022



     Kesang Doma Bhutia, J:-        This Court has no determination to

hear a revisional application of the year 2005, but for proper

adjudication of the issue involved in C.O. No. 1366 of 2021, the

revisional application no. C.O. 639 of 2005 need to be heard analogously

with C.O. No. 1366 of 2021 as both the revisional application arises out
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of a decree of preemption passed in Misc. Appeal 106 of 1993, by learned

Additional District Judge, Hooghly on 03.12.2003. Therefore, both the

above C.Os are considered analogously.


     Facts

which is necessary for determination of the both the

revisional applications, in gist is that present opposite parties Anil

Kumar Pal and Sunil Kumar Pal have filed preemption case under

Section 8 of the West Bengal Land Reform Act, 1955 being Misc. Case

No. 20 of 1991 against the petitioner for preemption of 1 Katha, 15

Chattak and 15 Sqft. in the Court of the First Munsif at Seramore. The

learned trial court was pleased to dismiss such preemption case on

13.09.1993.

Being aggrieved by such order of dismissal the preemptor Anil

Kumar Pal and Sunil Kumar Pal have preferred a Misc. Appeal No.106 of

1993 before learned District Judge, Hooghly. The Appeal was finally

heard by the Additional District Judge Hooghly and was pleased to allow

the appeal granting preemption in respect of "KA" schedule property and

directed the appellants to deposit the balance consideration money along

with statutory compensation thereof within one month from the date of

order. Subsequently, on the prayer of the appellants, time for deposit

was further extended by another month and was pleased to reject the

application for Review of such order filed by respondent/ the present

petitioner.

Being aggrieved by order of preemption passed by the learned First

Appellate Court on 03.12.2003 and subsequent two orders of extension

of time and rejection of review application, the present petitioner Ratan

Dhar preferred C.O. No. 639 of 2005.

From the materials in record of C.O. No. 1366 of 2021, it is seen

that opposite parties/preemptor no. 1 and 2 have already put the decree

of preemption passed by the Appellate Court in Misc. Appeal No. 106 of

1993 on 03.12.2003 in execution. In such Execution Case, the petitioner

has filed an application under Section 47 of Civil procedure Code and

where he has challenged the executable of the decree of the Appellate

Court on the ground that preemption was sought in respect of "Kha"

Schedule Property comprising 1 Khatha, 15 Chattak and 15 Sqft. of

plot no 1850, but decree was passed in respect of Ka" Scheduled

Property comprising 5 Khatha, 6 Chattak and 43 Sqft. land of plot

no. 1850.

While dealing with the application of the petitioner under section

47 of CPC, the learned trial/executing court has observed the learned

Appellate Court has granted pre-emption in respect of "Ka" Schedule

Property and not in respect of "Kha" Schedule Property and it has no

authority to declare order of the superior Court to be null and void and

thereby rejected the application u/s47 of CPC.

The petitioner Ratan Dhar being aggrieved by order of dismissal of

his application under Section 47 of the Civil Procedure Code filed in

Misc. Case No. 91 of 2018 passed by the learned Civil Judge (Junior

Division) 4th Court, Serampore/the executing court on 18.01.2020 has

preferred the present C.O. no.1366 of 2021 along with an application

under Section 5 of the Limitation Act, for condonation of delay of 563

days. The delay is condoned to prevent miscarriage of justice and for the

reason that would be discussed below. Accordingly, CAN 1 of 2021 is

disposed of.

It is undisputed facts the pre-emption is sought for in respect of

"Kha" schedule property measuring 1 Khatha, 15 Chattak and 15

Sqft. of plot no 1850 and not in respect of "Ka" Scheduled Property

comprising 5 Khatha, 6 Chattak and 43 Sqft. land of plot no. 1850.

Therefore, apparently there is an error on face of the decree of

preemption passed by the Appellate Court. It is settled law the executing

Court has no jurisdiction to decide whether the decree passed by the

Appellate Court is null and void or bad in law and court cannot go

beyond the decree and it is bound by the decree. Therefore, this Court

does not find any error being committed by the Executing Court in

passing the impugned order, but question remains whether the defective

decree can be executed. The answer is no as the petitioner has never

purchased entire "Ka" Schedule Property. The petitioner has purchased

only "Kha" Schedule Property. Therefore, the decree passed by the

Appellate Court palpably appears to be wrong and which makes the

decree of preemption passed by it unexecutable in the trial court.

From order no. 84 dated 31.01.2004 passed by the learned

Appellate Court it appears the learned Appellate Court was pleased to

extend and grant another one month time to the opposite parties no. 1

and 2 to deposit the balance consideration money along with statutory

compensation and reject the review application under Section 114 of

Civil Procedure Code filed by the present petitioner vide order no. 91

dated 20.09.2004.

Apparently, the decree appears to be bad in law as preemption

decree was passed in respect of "Ka" Schedule Property in respect of

which no preemption was sought for by the preemptor. On the contrary,

preemption was sought by the present opposite parties no. 1 and 2

against the petitioner in respect of "Kha" Schedule Property.

That apart one of the prerequisite conditions to file an application

for preemption under Section 8 of West Bengal Land Reforms Act, 1955

is that preemptor need to deposit the undisputed consideration money as

shown in the deed of transfer together with a further sum of ten percent

of that amount in the court having territorial jurisdiction. Section 9 of

West Bengal Land Reforms Act, 1955 further provides the court having

jurisdiction and where the application for preemption is filed shall issue

notice to the transferee on the deposit mentioned in sub-section (1) of

Section 8 being made. Section 9 further contemplates if preemptor

claims inflated consideration money has been shown in the deed just to

prejudice his interest and actual consideration paid is much less then it

is the duty of the Civil Court where the case is pending to adjudicate

about the actual consideration money paid by the transferee. The court

also has to decide what further amount, if any, which has been spent by

the transferee for annulling the encumbrance and also amount spent

towards cesses, rents and taxes and provided transferee or any person

interested put forward such claim. On determination of the actual

consideration money paid by the transferee and any other cost, if any,

spent by the transferee, then direct the preemptor to make further

deposit.

In the present case there is no dispute among the parties about the

actual consideration money quoted in the purchase deed of the

petitioner/transferee. Further no claim has been put forward by the

transferee/ present petitioner towards extra expenses incurred by him.

Therefore, as per Section 8 and 9 of the West Bengal Land Reforms Act,

1955 it is mandatory for the person seeking preemption to deposit the

entire consideration money as reflected in the deed of sale along with 10

% of that amount in the Court, while filling application under Section 8

of the West Bengal Land Reform Act, 1955.

In the present case the orders passed by the Appellate Court and

which are under challenge prima facie prove the preemptor/opposite

parties have failed to comply such prerequisite condition contained in

Section 8 and 9 of the West Bengal Land Reform Act, 1955. The Appellate

Court by passing impugned orders not only allowed the opposite parties

to deposit the balance consideration money at the appellate stage but

also extended time in making deposit of balance consideration money

along with statutory compensation of 10% of that amount.

In Barasat Eye Hospital & Ors. Vs. Kaustabh Mondal , reported in

(2019) SCC 767, the Hon'ble Supreme Court has been pleased to hold

right for pre-emption under Section 8 of the Act of 1955 would be

triggered off on deposit of the amount which in turn, would be within the

time stipulated for triggering the right. The petitioners who have failed to

deposit the amount as stipulated in Section 8 they cannot pray for

extension of time for deposit to exercise the right of preemption.

In view of the order of the Hon'ble Supreme Court in Barasat Eye

Hospital (Supra) in order to avail a right of preemption, a weak right the

opposite parties are required to deposit the entire consideration money

mentioned in the purchase deed of the transferee/petitioner along with

10% of that amount in the Court at the time of filling the application

under Section 8 of the Act, 1955.

Therefore, the impugned order permitting the preemptor/opposite

parties to deposit deficit consideration money along with 10 % of the

amount after the disposal of the appeal and at the convenience of the

opposite parties no. 1 and 2 appear to be in violation of provision of

Section 8 and 9 of the West Bengal Land Reforms Act, 1955 and such

decree and subsequent orders passed by the learned appellate court

below suffer from illegality and liable to be set aside.

Therefore, the decree of pre-emption passed by learned Additional

District Judge, Hooghly, in Misc. Appeal No. 106 of 1993 on 03.12.2003,

order no. 84 dated 31.01.2004 granting extension to deposit the balance

consideration money after the time stipulated in the decree. and order

no. 91 dated 20.09.2004 rejection of the petitioner's review application

passed by the learned Additional District Judge, Hooghly in Misc. Appeal

No. 106 of 1993 are set aside with the finding that the preemption case

being no. 20 of 1991 is not maintainable on the premptor failure to

deposit entire consideration money with 10 per cent of the amount in the

Court of First Munsif, Serampore, Hooghly along with the preemption

application and for passing preemption decree in respect of wrong

schedule property i.e."Ka" Schedule property and not in respect of "Kha"

Schedule Property preemption of which is actually sought for.

Consequently, the Execution Case pending before the Civil Judge (Junior

Division), 4th Court, Serampore, Hooghly for execution of unexecutable

decree passed by the Appellate Court in Misc. Appeal 106 of 1993 and in

respect of wrong Schedule Property is also not maintainable. The present

opposite parties/preemptor are at liberty to withdraw the consideration

money along with 10 per cent of the amount lying in deposit with the

Civil Court (Junior Division), 4th Court, Serampore, Hooghly.

Accordingly, C.O. No. 639 of 2005 and C.O. No.1366 of 2021

along with CAN 1 of 2021 is disposed of. Connected application, if any,

are disposed of.

Interim orders, if any, stands discharged.

There will be no order as to costs.

All parties shall act in terms of the copy of the order downloaded

from the official website of this Court.

Urgent Xerox certified photocopies of this judgment, if applied for,

be given to the parties upon compliance of the requisite formalities.

(Kesang Doma Bhutia, J.)