Apurba Kumar Khan And Others vs Rabindranath Khyara & Ors
2023 Latest Caselaw 6909 Cal

                      IN THE HIGH COURT AT CALCUTTA
                        CIVIL REVISIONAL JURISDICTION
                                APPELLATE SIDE


Present:
Hon'ble Justice Shampa Sarkar


                                   C.O. 2303 of 2022

                       Apurba Kumar Khan and others
                                   Vs.
                        Rabindranath Khyara & Ors.

For the petitioners                         : Mr. Samir Kumar Adhikari.

For the opposite party Nos. 1 to 4           : Mr. Siddhartha Sankar Mandal
                                               Ms. Arunima Das Sharma,



Hearing concluded on: 25.07.2023
Judgment on: 10.10.2023

Shampa Sarkar, J.:-

1.

The revisional application arises out of an order dated July 18, 2022

passed in Misc. Appeal No.01 of 2020 by which the Judgment and Order

dated December 21, 2019, passed by the Learned Civil Judge (Junior

Division), 2nd Court, Khatra in J. Mis Case No.-01 of 2023, was affirmed.

The order in the Misc. Appeal was passed by the learned Additional District

Judge, Khatra.

2. The petitioners are the pre-emptees/stranger purchasers. The

opposite party nos.1 to 4 are the heirs of the deceased preemptor

(Ramkinkar). The opposite party no.5 Satyakinkar, sold the property to the

petitioners.

3. According to the petitioners, both the learned courts below, acted

illegally and with material irregularity in allowing the pre-emption

application. The grounds for challenge are as follows :-

(a) The fact that the predecessor-in-interest of the pre-emptor and

proforma opposite party no.5, died prior to the RS settlement and the

pre-emptor and the proforma opposite party no.5 were in khas

possession of their distinct, separate and respective shares, by

recording their name in the respective RS khatian, was totally ignored

by the learned court.

(b) The heirs of late Rajanikanta Khyara, i.e. the petitioner and the

opposite party no.5, were possessing their individual plots on the

basis of a mutual oral partition, on the death of their father. Such oral

partition was acted upon.

(c) The respective RS khatians prepared in 1962 clearly indicated the

factum of separate shares of the pre-emptor and the opposite party

no.5.

(d) That the provisions of Section 14 of the West Bengal Land Reforms

Act, 1955 was wrongly applied in the case, as partition between the

heirs of late Rajanikanta Khyara was admitted and such partition was

reflected in the RS record.

4. Learned counsel for the petitioner submitted that after the RS

settlement, separate khatians were prepared in respect of Ramkinkar

khyara and Satyakinkar khyara. The learned court below ought to have

considered such factum of partition of the property of late Rajanikanta

Khyara, amongst the two sons by metes and bounds. Once the entire share

of the plot enjoyed by Satyakinkar was sold, pre-emption would not lie.

5. Counsel urged that the finding of the learned courts that the parties

were co-sharers and Ramkinkar khyara had a right of pre-emption on the

ground of co-sharership, was erroneous. Each of the brothers were in

possession of their demarcated land on the basis of an oral partition and

such oral partition was reflected in the RS record of right and separate

khatians bearing no. 1317 and 1318 had been prepared in respect of each of

the sons of late Rajanikanta. That the land had been classified as a

homestead land.

6. Learned counsel referred to the decision in Barasat Eye Hospital

and ors. Vs Kaustabh Mondal reported in (2019) 19 SCC 767, and

submitted that the Hon'ble Apex Court had held that pre-emption was a

weak right and the court should not be liberal while adjudicating the

application under Section 8 of the West Bengal land Reforms Act, 1965

(hereinafter referred to as the Said Act). Further argument was that the

evidence on record, mainly the RS khatian and the record of rights ought to

have been considered in greater detail in order to appreciate that the

partition between the two brothers had become final and conclusive. Once

the partition had taken place and the respective shares had been

demarcated, the other heir of the original owner, since deceased, could not

be a co-sharer of the plot sold by his brother, even if, the parties had

inherited the entire plot from their father. It was also submitted that the

pre-emption application was barred by the law of limitation as the same was

not filed within three months from service of notice of the sale.

7. Learned counsel for the opposite parties nos.1 to 4 submitted that

both the learned courts had come to factual findings on the basis of oral and

documentary evidence that the pre-emptor and opposite party no. 5 were co-

sharers in respect of the plot sold. Such finding of co-sharership which were

accepted by two fact finding courts, could not be re-appreciated in this

revisional application. The pre-emptees were not in a position to show that

the learned courts below had either misconstrued the evidence or travelled

beyond the evidence available.

8. Further contention was that the point with regard to the sale of Bastu

land, was not raised before the learned court below by the petitioners. Such

factual issue could not be raised for the first time in this revisional

application.

9. The question to be decided by this court is whether the learned

courts acted illegality and with material irregularity, in allowing the pre-

emption case. The order of the learned trial Judge is discussed first. From

the judgement dated December 21, 2019, it appears that the learned trial

Judge discussed the provisions of Section 8 of the said Act in great detail.

The definition of "co-sharer of a raiyat in a plot of land" as per Section 2(6)

of the said Act was also considered. The definition of "Raiyat" under Section

2(10) of the said Act was also discussed. The trial Judge came to a finding

that a raiyat was the person holding land for any purpose, whereas, a co-

sharer was a person other than the raiyat, having an un-demarcated

interest in a plot of land along with the raiyat.

10. Upon consideration of the language of Section 8 of the said Act and

the definition, the learned Judge came to a finding that if a portion or a

share of land of a raiyat was transferred to any person other than a co-

sharer of the raiyat, a co-sharer of the raiyat could avail of the relief of pre-

emption upon satisfaction of the pre-conditions laid down in Section 8 of the

said Act.

11. The learned trial Judge discussed the law relating to pre-emption and

the legislative intent behind such law. The legislative intent was to prevent

fragmentation of land. The learned Court held that the issue whether pre-

emption would lie in cases where a portion or share of a plot of land was

transferred by a raiyat to any person other than the co-sharer raiyat, was no

longer res-integra. The said issue had been set to rest by a judgment of the

Hon'ble High Court in the case of Dilip Kumar Dhara and others vs

Ranjit Kr. Mondal reported in (2019) (2) ICC 370(Cal). It was held that

the expression 'or' in Section 8 (1) should be interpreted as 'of' and not as

'or'. Such decision in Dilip Kumar Dhara (Supra) was rendered in the light

of the decision of the Hon'ble Apex Court in Chhana Rani Saha vs. Mani

Pal @ Katu Pal decided in Civil Appeal No. 5905 of 2009. The Hon'ble

Apex Court held that where a portion or share of land of any raiyat was

transferred to any person other than the co-sharer of a raiyat, that is to say,

if the land was held by two co-sharers and one of the co-sharers sought to

transfer his portion or share belonging to him to another person, the other

co-sharer could claim a right of pre-emption.

12. The learned trial judge discussed the relevant decisions of the Hon'ble

Apex Court and of this court, on the issue and upon appreciating the well

settled principles of law governing pre-emption, proceeded to adjudicate the

dispute.

13. The facts of the case were traversed by the learned trial court on the

basis of the legal principles and the legislative intent behind the law, i.e.,

the right of pre-emption was incorporated only to prevent fragmentation of

land.

14. The trial court observed that in the event the entire plot was

transferred, the allegation of transfer to any person other than a co-sharer,

lost its efficacy. The trial court restricted its adjudication to the question

whether a portion or share of a plot of a raiyat had been transferred or not.

15. The pre-emptor's case was that the original owner of the Schedule

property (plot no.239) was one Rajanikanta Khyara. Rajanikanta Khyara

died prior to the RS settlement. After demise of Rajanikanta Khyara, the

property devolved upon his two sons namely the pre-emptor Ramkinkar

khyara (predecessor in interest of the opposite party nos.1 to 4) and the pro-

forma opposite party no.5. Each of the sons inherited eight annas shares

and their names were recorded in the R.S. Khatian no.1317 and 1318

respectively. Pre-emptor's further case was that the opposite party no.5 was

also an adjoining raiyat. The opposite party no.5, in connivance with the

pre-emptee/petitioners, by virtue of a registered deed of sale being no.1850

dated July 31, 2002 transferred a portion of the share in the disputed plot.

According to the pre-emptor, the pre-emptees/petitioners were complete

strangers to the suit plot. The pre-emptor as a co-sharer, had a better right

to the schedule property. Hence, an application under Section 8 of the said

Act was filed by the pre-emptor. Considering the evidence on record with

regard to the "Ka'' schedule property, namely, plot no.239, the issues were

decided.

16. According to the pre-emptees, the pre-emptor was neither a co-sharer

nor an adjoining raiyat. The total "Ka" schedule property, being plot no.239,

measured about 93 decimals. The opposite party no.5 was the absolute

owner of the 47 decimals out of 93 decimals and his name has been duly

recorded in the R.S. Khatian No.1317. The remaining 46 decimals had been

duly recorded in the name of pre-emptor in R.S. Khatian No.1318. The

opposite party no.5 was an independent raiyat in respect of his own land

under the State of West Bengal and he did not have any co-sharership with

the pre-emptor. The learned trial judge recorded and appreciated the case of

the pre-emptees.

17. The preemptor examined three witnesses i.e. PW.1 Ramkinkar

Khyara, PW 2 Manik Mondal and PW 3 Tapan Kumar Khyara. The pre-

emptor exhibited three documents, namely, Exhibit 1 - the impugned sale

deed being no.1850 for the year 2002, Exhibit 2 - the challan for payment of

Rs.88,000/- Exhibit - 3, the L.R. Khatian no.1561, Mouza Rudra. The pre-

emptees examined two witnesses, OPW1 Gurupada Kha and OPW2 Kinkar

Chandra Mahato. They exhibited document, namely, Exhibit A - original

deed being no.1850 of 2002, Exhibit B - certified copy of LR Khatian

no.2455, 2456 and 431 of Mouza Rudra, Exhibit C (series), Panchayat rent

receipts, Exhibit D (series) - four original rent receipts, Exhibit E - certified

copy of RS ROR Khatian no.1317 of Mouza Rudra.

18. The learned trial judge, upon appreciation of the provisions of Section

8 and the mandatory pre-condition of depositing entire consideration money

with the further compensation of 10% arrived at the conclusion that Exhibit

2 (challan) clearly proved that the entire consideration money along with

10% levy had been deposited and there was no short deposit. Thereafter, the

learned trial judge went on to decide the question of limitation. The

preemptor's case was that the notice of the sale which was executed on July

31, 2002, had not been given to the preemptor. Registration was completed

on July, 31, 2002. The pre-emption case was filed on January 02, 2003. On

the ratio laid down in Nurul Islam vs. Esratun Bibi reported in (2017) 4

ICC 235, the learned trial judge held that the period of limitation for filing

an application by a non-notified sharer was one year. Under such

circumstances, the court was of the opinion that the pre-emption

application was not barred by limitation. The next point that was decided by

the learned trial judge was whether the petitioner was a co-sharer in respect

of the property sold or whether the co-sharership had ceased on the basis of

an oral partition as contended by the pre-emptees/petitioners.

19. According to the learned trial judge, there was no partition in terms of

Section 14 of the said Act amongst the co-sharers in respect of the disputed

plot. An amicable partition by way of mutual arrangement in the matter of

possession, could not be treated as a partition under Section 14 of the said

Act. The pre-emptor and the opposite party no.5 may have been possessing

separate parts of the undivided plot on the basis of such mutual

arrangement, but in the absence of a proper deed of partition, the parties

were to be treated as co-sharers. The court found that the disputed plot was

still undivided and un-partitioned. No evidence with regard to any partition

in respect of plot no.239 had been adduced by the pre-emptees. Neither any

deed of partition nor any decree of court, were exhibited in support of the

contention of the petitioners that plot no.239 had been partitioned according

to the applicable law.

20. Reference was made to the ratio of the decision in Bhadreswar Bera

Vs. Mathura Mohan Shaw reported in 2004 SCC online Cal 532, wherein

it was held that even if co-sharers remained in occupation of a particular

demarcated portion in terms of a mutual arrangement, the un-demarcated

interest of the co-sharers in the property was not extinguished. In the eye of

law, they remained as co-sharers so long as there was no registered deed of

partition, notwithstanding the fact that each of the co-sharers were in

occupation of a particular demarcated portion. The relevant portion of the

said judgment was quoted by the learned trial judge.

21. Reliance was further placed on the decision of Sk. Sajhan Ali and

others vs Sk Saber Ali and Anr. reported in (2016) (1) ICC 362 (CAL),

which laid down a similar principle. The statute prohibited partition of a

class of property, except by way of a registered document. Unless the

property was partitioned by a registered deed, the parties would remain co-

sharers. The concept of oral partition was not recognized by the said Act,

even if such partition was otherwise permissible in other cases by way of

custom, usage or contract. The non-obstante nature of Section 3 of the said

Act, was discussed.

22. Further reliance was placed on the decision of Biswanath Dolui vs

Tinkari Dolui reported in (2015) 4 ICC 954 (CAL), wherein it was held that

as long as there was no partition in accordance with the provisions

contained in Section 14 of the said Act, the parties remained co-sharers of

the plot of land and had un-demarcated interest in the entire plot in

question. Based on the aforementioned decisions, the learned trial judge

came to a finding that the concept of oral partition was alien to the said Act.

23. Admittedly, the property of the father devolved upon Rajanikanta

Khyara and Satyakinkar khyara. The court was of the view that no partition

in respect of the property had been effected as the pre-emptee failed to

produce any document in support of such partition in terms of Section 14 of

the said Act. Upon considering the recitals in the deeds no.1850 of 2002, the

court found that the opposite party no.5 had 47 decimals of land, out of

which 21 decimals was sold to the pre-emptees (7 decimals of land to each

of the pre--emptees). After demise of Rajanikanta, the pre-emptor and the

vendor of the pre-emptees inherited 8 anna share each. Accordingly, their

names were recorded in R.S. Khatian no.1317 and 1318 in respect of their

share. The entire share i.e., 47 decimals of land of the opposite party no.5

was not sold. Hence, a share of the opposite party no.5 in the undivided plot

no.239 had been sold to strangers. The court also arrived at a conclusion

that the pre-emptees could not produce any document to show that they

were co-sharers. The LR Khatian no.1561 (Exhibit 3) was considered and

the learned court found that the preemptor was a co-sharer in respect of the

property sold by the impugned deed. Thus, the pre-emption application was

allowed.

24. The pre-emptees filed Misc. Appeal no.01 of 2020 being aggrieved by

the trial court's order. The lower appellate court considered the facts, the

grounds of appeal and the submissions of the respective parties. The

deposition of OPW1 in his cross-examination was appreciated by the learned

lower appellate court. There was an admission that notice as per Section 5

of the said Act had not been served upon the pre-emptor. The lower

appellate court came to the finding that the pre-emptor was a non-notified

co-sharer and upheld the finding of the learned trial judge. The plea of the

pre-emptees that the pre-emption application was barred by law was

rejected by the learned lower appellate court and it was held that as the pre-

emptor was a non-notified co-sharer, the period of limitation would be one

year from the date of transfer.

25. The decision in Gosto Behari Das Vs. Rajobala reported in 1960

CWN 57 was discussed and the learned lower appellate court held that the

accrual of the right of the pre-emption would be the date when the deed of

sale was registered and the title passed. The deed of sale was registered on

July 31, 2002 and the pre-emption application was filed on July 02, 2003,

i.e, well within one year from transfer.

26. The next question with regard to oral partition was also discussed by

the learned lower appellate court and the learned lower appellate court,

upon appreciation of the findings of the learned trial judge and on the

evidence on record, came to the finding that the OPW No.1 in his cross-

examination had deposed that he could not file any document to show that

any partition between Ramkinkar khyara and Satyakinkar khyara had

taken place and sub-plots had been created out of plot no.239. Exhibit 3

revealed that there was no formal partition. Section 14 of the said Act

recognized partition of a joint property only by two means i.e. registered

partition deed or by decree of a court. Oral partition was not recognized by

the statute. Hence, the factum of partition in this case was disbelieved. Both

the learned courts discussed the laws applicable and came to the finding

that the preemptor and the opposite party no.5 were co-sharers. 21

decimals out of 47 decimals of land which was in the share of Satyakinkar

khyara in respect of plot no. 239, was sold.

27. The orders impugned before this court and the findings of the learned

courts below, were based on appreciation of law, evidence and the principles

settled by the decisions of Hon'ble Apex Court and the High Court. This

court does not find that the orders impugned suffer from any perversity.

28. The scope of interference under Article 227 is limited.

29. In the decision of Sadhana Lodh v. National Insurance Co. Ltd.,

reported in (2003) 3 SCC 524, the Hon'ble Apex Court held as follows:-

" 7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal had proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision."

30. In the decision of M/s. Puri Investments v. M/s. Young Friends and

Co. and Others, reported in 2022 SCC OnLine SC 283, the Hon'ble

Apex Court held as follows:-

"14.

****** We have considered the submissions of the respective counsel and also gone through the decisions of the fact-finding fora and also that of the High Court. At this stage, we cannot revisit the factual aspects of the dispute. Nor can we re-appreciate evidence to assess the quality thereof, which has been considered by the two fact-finding fora. The view of the forum of first instance was reversed by the

Appellate Tribunal. The High Court was conscious of the restrictive nature of jurisdiction under Article 227 of the Constitution of India. In the judgment under appeal, it has been recorded that it could not subject the decision of the appellate forum in a manner which would project as if it was sitting in appeal. It proceeded, on such observation being made, to opine that it was the duty of the supervisory Court to interdict if it was found that findings of the appellate forum were perverse. Three situations were spelt out in the judgment under appeal as to when a finding on facts or questions of law would be perverse. These are:--

(i) Erroneous on account of non-consideration of material evidence, or

(ii) Being conclusions which are contrary to the evidence, or

(iii) Based on inferences that are impermissible in law.

15. We are in agreement with the High Court's enunciation of the principles of law on scope of interference by the supervisory Court on decisions of the fact-finding forum. But having gone through the decisions of the two stages of fact-finding by the statutory fora, we are of the view that there was overstepping of this boundary by the supervisory Court. In its exercise of scrutinizing the evidence to find out if any of the three aforesaid conditions were breached, there was re-appreciation of evidence itself by the supervisory Court.

16. In our opinion, the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India in the judgment under appeal had gone deep into the factual arena to disagree with the final fact-finding forum."

31. The revisional application is dismissed.

32. There shall be no order as costs.

33. Parties are to act on the server copy of this judgment.

(Shampa Sarkar, J.)