Sri Bibekananda Bera vs Anirban Jana & Anr
2023 Latest Caselaw 6911 Cal

10.10. 2023 item No.166 n.b.

ct. no. 652                   C.O. 4263 of 2016

                               Sri Bibekananda Bera
                                     Vs.
                              Anirban Jana & Anr.

               Mr. Asish Chandra Bagchi,
               Ms. Malyasree Maity,
                                ..... for the petitioner.
               Mr. Tanmay Mukherjee,
               Mr. Soumava Mukherjee,
               Mr. Subhankar Chatterjee,
                                ...... the opposite parties.

This is an application under article 227 of the

constitution of India against the Judgment dated

28.1.2016 passed by the learned Second Court Additional

District Judge, Purba Mednipur at Tamluk in

Miscellaneous Appeal No. 9 of 2013 tried analogously

with Miscellaneous Appeal No.8 of 2013 against order

No.123 dated 7.9.2012 passed by the Learned Second

Court of Civil Judge(Junior Division), Tamluk in Judicial

Miscellaneous Case No.37 of 2003.

The petitioner filed an application for pre-emption

under Section 8 & 9 of the West Bengal Land Reforms Act.

The opposite parties herein contested the said case by

filing written objection contending that the petitioner is

not an adjacent raiyat and that the entire share of the

transferor has being transferred. The petitioner seeks pre-

emption on the ground of vicinage. However, the Trial

Court after hearing the parities was pleased to dismiss the

aforesaid Judicial Miscellaneous case no.37 of 2003 and

petitioner being aggrieved by that order preferred appeal

before the Learned District Judge, Purba Medinipur which

was subsequently transferred to the Additional District

Judge, Tamluk. The said appeal was also dismissed by the

Court below by the impugned Judgment dated January

28, 2016. Against the order of dismissal by the Court

below, the present application under article 227 of the

constitution of India has been preferred on various

grounds including the ground that the opposite parties are

estopped from challenging the recitals of their own deed of

title and that there exists a small strip of land, meant for

passage between the land of the preemptor and the pre-

emptee which does not effect the claim of pre-emption on

the ground of vicinage but court below failed to consider

the same. Furthermore, the court below failed to

appreciate that when the deed no.774 was executed, the

entire share of the rayot was not transferred.

However, at the time of hearing Mr. Tanmoy

Mukehree, learned advocate appearing on behalf the

opposite parties raised preliminary objection which needs

to be adjudicated before going to the merits of the case.

In view of the judgment passed by the Hon'ble Apex

Court in Barasat Eye Hospital Vs. Kaustabh Mondal

reported in (2019) 19 SCC 767 and which was also

subsequently followed in the judgment in Abdul Matin

Mallick Vs. Subrata Bhattacharjee(Banerjee) & Ors., Mr.

Mukherjee contended that from the recital of the deed, it

appears that the consideration price appearing in the deed

is Rs.2,00000/- out of which the pre-emptor/petitioner

herein till this date admittedly deposited only

Rs.1,15,500/-. The rest amount he had not deposited on

the ground that he had filed an application under Section

9 of the West Bengal Land Reforms Act 1955 for causing

enquiry as according to the petitioner/pre-emptor, the

consideration price appearing in the deed is inflated sum

and does not reflect the actual consideration money

passed during the transaction.

Mr. Mukherjee, learned advocate appearing on

behalf of the opposite party further contends that Section

8 of the West Bengal Land Reforms Act makes it clear that

on deposit of the consideration money together with a

further sum of 10% of that amount, the petitioner can

only go for seeking enquiry invoking the provision under

Section 9 of the Act 1955. He further contends that

without depositing the entire consideration price

appearing in the deed, he has no right to seek enquiry

under Section 9 of the Act of 1955. Here, admittedly the

pre-emptor/petitioner has not deposited the entire

consideration money and as such, the ratio laid down by

the Appellant Court in Barasat Eye Hospital(sura) as well

as Abdul Matin Mallick(sura) clearly attracts in the

present context. He also referred a judgment passed by a

co-ordinate bench of this Court in C.O.1994 of 2022 on

the self-same point and accordingly prayed for dismissal

of the present application.

Learned advocate Mr. Bagchi appearing on behalf of

the petitioner of this case raised strong objection on this

preliminary point and contended that while the judgments

passed by Apex Court as relied upon by the opposite

parties herein, did not consider the provision as laid down

in Section 9 of the Act of 1955. According to Mr. Bagchi,

the Word "consideration money" appearing in Section 8

and Section 9 means the consideration money, which

stands after the enquiry as prayed under Section 9 is

completed and not the consideration money which is

apparently appearing in the recital of the deed. He further

contended that if the amount of consideration money

appearing in the deed is taken to be the "consideration

money" meant for Section 8 of the Act, then, Section 9

would have no application in the eye of law. In this

contest, he quoted relevant portion of the provision of

Section 9 of the Act 1955, which says that "........the

Munsif may after such enquiry as it considers necessary,

direct the applicant to deposit such further sum, if any,

within the time specified and on such sum being

deposited......." means that the pre-emptor is not required

to deposit the entire consideration money as appearing in

the deed when his case is that the amount appearing in

the deed is inflated one. He submits that the preliminary

objection as raised by Mr. Mukherjee, learned advocate,

has got no substance and liable to be rejected.

I have considered the submissions made by both the

parties. In the judgment of Barasat Eye Hospital(supra)

the issue with regard to the mandatory requirement of

Section 8 of West Bengal Land Reforms Act to deposit the

entire consideration money along with 10% thereof with

the pre-emption application is no more res integra. The

said decision has also been followed by the Hon'ble

Supreme Court in the matter of Abdul Matin

Mallick(supra).

It has been clearly held in the Barasat Eye

Hospital(supra) that the pre-requisite to endeavor to

exercise this weak right is the deposit of the amount of

sale consideration and the 10% levy on that consideration

as otherwise section 8(1) of the said Act will not be

triggered off apart from making even the beginning of

Section 9(1) of the Act otiose. It was further observed that

the provisions of Sections 8 and 9 of the Act must be read

as they are. It cannot be said that a discretion can be left

to the pre-emptor to deposit whatever amount, in his

information is the appropriate consideration, in order to

exercise a right of pre-emption. The court also

apprehended that if such a discretion is given to the pre-

emptor without deposit of full consideration, would give

rise to speculative litigation, where the pre-emptor by

depositing smaller amount, can drag on the issue of the

vendee exercising rights in pursuance of the valid sale

deed executed.

As in the present case admittedly the entire

consideration amount as appearing in the deed has not

been deposited, the preliminary objection raised by the

opposite party is sustainable.

In view of the aforesaid settled position of law C.O.

4263 of 2016 is dismissed.

All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

( Ajoy Kumar Mukherjee, J.)