Smt Basanti Biswas & Anr vs Madhab Chandra Bagchi
2023 Latest Caselaw 3418 Cal

16.5.2023

Ct. no. 652 sb C.O. 397 of 2020

Smt Basanti Biswas & Anr.

Vs.

Madhab Chandra Bagchi

Mr. S.N. Biswas ...for the petitioners

Mr. Partha Pratim Roy Mr. Dyutiman Banerjee ...for the Opposite party

Being aggrieved by the impugned judgment and

order dated 24.12.2019 passed by the learned Additional

District Judge, 1st Court, Krishnanagar, Nadia in Misc.

appeal no. 7 of 2012 arising out of order dated 30th

November, 2011 passed by learned Civil Judge, Junior

Division, 3rd court in Misc. case no. 8 of 2005, the present

application under Article 227 of the Constitution of India

has been preferred.

The petitioner states that admittedly the suit

property measuring 3.79 acres originally belonged to

Mahendra Chandra Bhakta who died leaving behind three

sons as his legal heirs namely, Rathikanta Bhakta, Bipin

Behari Bhakta and Pyari Mohan Bhakta who inherited

one-third share each in the suit property. Subsequently,

Rathikanta Bhakta died leaving behind Santosh Kumar

Bhakta and Nilima Biswas who transferred 1.26 acres in

favour of the present preemptees namely Basanti Biswas

and Minati Tekadar by a registered deed dated 14.3.2005.

Be it also mentioned that heirs of other co-sharer, Pyari

Mohan Bhakta transferred therein share in the suit

property in favour of pre-emptor/opposite party by sale

deed dated 30.4.1987. The opposite party/preemptor,

filed an application for preemption under Section 8 and 9

of the West Bengal Land Reforms Act, 1955 (WBLR Act

1955 in short) being aforesaid Misc. case no. 8 of 2005

before the learned Civil Judge, Junior Division, 3rd Court,

Krishnanagar, Nadia. Said preemption petition was heard

before the court of learned Civil Judge, Junior Division,

3rd Court, Krishnanagar, Nadia and the trial court passed

judgment on 30.11.2011, thereby pleased to allow the

Misc. case.

Being aggrieved by the said judgment and order

dated 30.11.2011, the preemptee/appellants preferred an

appeal under Section 9(6) of the WBLR act 1955 in the

court of District Judge, Nadia being Misc. preemption

appeal no. 7 of 2012. In the said appeal, the preemptee

pleaded that the preemptor/opposite party is not a co-

sharer of a riot but the preemptor/opposite party is a

stranger purchaser who purchased plot of land of his co-

sharers. Said appeal was heard and the learned court

below was pleased to dismiss the said appeal on contest.

Both the court below passed order considering pre-

emptor/opposite party as a co-sharer of a raiyat.

Being aggrieved by the judgment of the appellate

court the petitioner herein contended that the court below

has erred in passing the said judgment without

considering that the opposite party is not a co-sharer of a

riot but co-owners of an adjacent, i.e., land ground of

contiguous land owner in respect of the suit property.

Learned court erred in law in not observing that the

property purchased by the preemptor/opposite party by

sale deed from the co-sharer is an

undivided/unpartitioned portion of the plot of land and

the preemptor is a stranger purchaser and he ought to

have considered that the right of preemption has not

accrued over the plot of land being no.1224 under Mouza

Madhavpur and as such the preemption application is not

maintainable in respect of the stranger purchaser. He

further contended that the learned appellate court ought

to have considered that regarding the consideration

money along with compensation @ 10% on consideration

amount, deposited by the petitioner but when such

deposit made by pre-emptor is not reflected in the

judgment and order passed by the learned court below.

Accordingly he has prayed for setting aside both the

orders passed by the court below.

Learned counsel for the opposite party submits

that both the court below has rightly held that the

opposite party is a co-sharer in respect of the suit

property and not stranger purchaser and accordingly,

both the court below had rightly allowed the preemption

case in favour of the opposite party herein.

During argument, learned counsel for the

petitioner raised the only question as to whether the

entire share inherited by Santosh Bhakta and Nilima

Biswas was transferred in favour of the preemptees or

not. Admittedly, in the present case, Mahendra Chandra

Bhakta was the original owner having 3.79 acres of land

in plot no. 1224. It is also not in dispute that the said

Mahendra Bhakta died leaving behind three sons named

above, who inherited 1/3 share each. Accordingly, the

share inherited by each of the three co-sharer is

measuring 1.26 1/3 acre or 1.2633333333 acre. Heirs of

Rathikanta Bhakta namely, Santosh Bhakta and Nilima

Biswas, have transferred 1.26 acre of land in favour of the

preemptees. Accordingly, 0.0033333333 acre of land is

still retained by the heirs of Santosh Bhakta and Nilima

Biswas, since the heirs of Mahendra Chandra Bhakta or

the heirs of Rathikanta Bhakta never partitioned the suit

property among themselves in accordance with law.

In view of above, the contention raised by the

petitioner that Santosh Bhakta and Nilima Biswas, the

heirs of Rathikanta Bhakta have transferred their entire

share in the suit property in favour of the preemptee is

not based on mathematical calculation.

I find nothing to interfere with the observation

made by the courts below wherein the courts below

allowed the application for preemption observing that the

entire share of Santosh Bhakta And Nilima Biswas had

not been transferred in favour of the preemptes and that

pre-emptor entitled to exercise his right of pre-emption as

co-sharer.

I also find nothing to interfere with the observation

made by the court below that preemptor/opposite party

sought to pre-empt as a co-sharer and such observation

made by court below based on sound reasoning.

In view of above, C.O. 397 of 2020 is dismissed.

Urgent photostat certified copy of this order, if

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

requisite formalities.

(Ajoy Kumar Mukherjee, J.)