Asit Krishna Saha & Anr vs Kuddus Ali Middya & Ors
2023 Latest Caselaw 6209 Cal

                IN THE HIGH COURT AT CALCUTTA
                 CIVIL REVISIONAL JURISDICTION
                         APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE

                           C.O. 1040 of 2019
                         Asit Krishna Saha & Anr.
                                    Vs.
                         Kuddus Ali Middya & ors.

For the petitioner             :     Mr. Ranjan Kali

For the opposite party
Nos. 1 & 2                     :     Mr. Akmam Khan
                                     Mr. Pronojit Roy


Heard on                       :     18.08.2023

Judgment on                    :     15.08.2023


Ajoy Kumar Mukherjee, J.

1. Order dated 25th January, 2019 passed by the Learned Additional

District Judge, Paschim Medinipur, in connection with Misc. Appeal No. 82

of 2014, arising out of pre-emption case No. 37 of 2004 has been assailed by

filing present application under Article 227 of the Constitution of India.

Petitioners case in brief is that petitioner filed aforesaid application under

section 8 and 9 of the West Bengal Land Reforms Act, 1955 (in short Act of

1955) seeking pre-emption in respect of the property described in 'Ka'

schedule to the pre-emption application.

2. The petitioners and the opposite party no. 3 are co-sharer of the suit

plot and they have jointly inherited the said property. Petitioner's case is

opposite party no. 3 sold a portion of land in Dag No 1965 and plot no. 1964

to the opposite party no. 1 and 2 who are stranger purchasers without

serving notice upon petitioners. After coming to know of such sale, executed

by opposite party no.3 in favour of stranger purchasers namely opposite

party no. 1 and 2, the petitioners filed aforesaid application under section 8

of the Land Reforms Act and said application for pre-emption was allowed

on 18.04.2009 in favour of pre-emptor/petitioner. Being aggrieved by the

said order the opposite party preferred an appeal before the learned

Additional District Judge and Appellate Court by setting aside the said order

dated 18.04.2009 was pleased to remand the pre-emption application before

the learned civil Judge (Junior Division), Ghatal Paschim Medinipur for

fresh consideration of the pre-emption application. Thereafter the said

application was taken up for hearing by the learned civil Judge (Junior

Division) Ghatal Paschim Medinipur and by an order dated 13.08.2014, the

civil Judge was pleased to allow the said pre-emption application filed by the

petitioners.

3. Being aggrieved and dissatisfied with the order dated 13.08.2014 the

pre-emptee/opposite party no. 1 & 2 preferred Misc Appeal being 82 of 2014

and after contested hearing the Appellate court by the order impugned

allowed the Appeal and was pleased to set aside the aforesaid order passed

on 13.08.2014.

4. Mr. Ranjan Kali learned counsel appearing on behalf of the petitioner

submits that the petitioners sought for pre-emption of the entire land in the

Dag No. 1964 and Dag No. 1965 as would be born out from the sale deed

and the schedule of the pre-emption application. Learned judge of the court

below has erred in arriving at a conclusion that it is a case of partial pre-

emption, thereby failing to appreciate that the opposite party no. 3 had sold

out 28.27 decimal out of 32 decimal and 3.76 decimal out of 4.76 decimal.

Therefore, the petitioners have duly applied for pre-emption in respect of

total sold out of the land to the opposite party no. 1 and 2 corresponding to

Dag No. 1964 and 1965. The court below has misinterpreted the various

decisions of the Hon'ble Apex Court and the Hon'ble High Court and arrived

at a wrong conclusion that in view of the amendment, the definition of

holding as has been changed so, the compilation of the several properties

under holding cannot be applicable, while arriving at such a conclusion.

Learned judge has completely overlooked the fact that the petitioners have

not sought for pre-emption of the several properties and has only sought for

pre-emption in respect of the land sold out by opposite party no. 3 to

stranger purchaser, corresponding to plot no. 1964 and 1965. The order

impugned is liable to be vitiated due to non-application of judicial mind. The

court below has arrived at a wrong conclusion and allowed the appeal

thereby setting aside the order of the Trial Court.

5. Mr. Akman Khan learned counsel appearing on behalf of the opposite

party no. 1 and 2 submits that the suit property being plot no. 1965 and

1964 are the adjacent plot of land and some of the co-sharers sold the two

plots of suit land on 26th December, 2003, by a registered deed of sale with

two schedule of land 'Ka' and 'Kha' to the opposite party No. 1 & 2, who are

stranger purchasers. But petitioner/ pre-emptor filed application seeking

pre-emption only in respect of 'Ka' schedule for which it attracts partial pre-

emption. Petitioner filed an application under section 22 of the Hindu

succession Act, for 'Kha' schedule of the said deed. Mr. Khan Pointed out as

per amended definition, concept of holding changed. So "co-sharer of a

raiyat in a plot of land" means a person other than the raiyat and the raiyat

has been defined as a person holding land for any purpose whatsoever. He

further contented that before amendment of section 2(6) of the Act of 1955

"holding" means the land or lands held by a raiyat and treated as a unit for

assessment of revenue. This definition has been changed in the year 2000.

After finally published Record of Rights in respect of L.R. Dag No. 2306 and

2307(present Dag No. of suit plot), the concept of several properties under

the holding cannot be applicable in the present case. Accordingly before the

First Appellate court, the question cropped up, whether the partial pre-

emption is permissible or not, and court below decided that partial pre-

emption is not permissible and in this context he relied upon several

judgments of Supreme Court and this High Court.

6. Accordingly Mr. Khan submitted that though the petitioner heavily

relied upon the judgment of Satish Chande Kuila Vs. Kalipada Maity

reported in (1977) 2 Cal.L.J 408 but said judgment is not applicable in the

present context, because in that case several plots of land were sold in one

deed and the pre-emptor was the owner of adjoining plots. Pre-emptor

applied for pre-emption of all those plot of lands which are adjacent and as

such partial pre-emption was allowed. But present case is factually different

from the said case because here co-owner of a land filed this case and 'ka'

and 'kha' schedule are adjacent plots. The scope to "sale to a stranger as

well as to co-sharer in one deed of transfer" is not applicable since the

strangers appellants herein are the purchasers in the present case. Mr.

Khan concluded by submitting that in view of the authoritative judgments,

partial pre-emption is not permissible in the facts and circumstances of the

present case and as such the application filed by the petitioner under

section 8 of the West Bengal Land Reforms Act is not maintainable and as

such he prayed for dismissal of the present application.

7. I have considered submissions made by both the parties.

8. On perusal of the order impugned passed by the court below, it

appears that court below allowed the appeal and was pleased to set aside

the order of pre-emption passed by the Trial Court and had accepted the

argument made by learned Advocate for the appellant that after change of

concept of the holding, partial pre-emption in respect of 'ka' schedule of the

impugned deed marked as exhibit 4, is not permissible. He further held that

the very concept of the pre-emption being substitution of the name of the

vendee by an order of pre-emption proceeding would be frustrated if a part

of the sale deed is allowed to be pre-empted. He therefore came to a

conclusion that the substitution of the name of the vendee by multiple

orders of the different pre-emption proceedings, considering the nature of

the present case is impermissible in law. He further observed that Trial

Court failed to consider that the purpose of codifying the law of pre-emption

was to protect fragmentation of land. If petitioner/pre-emptor is allowed to

split the subject land under the deed, the object of law will be fraustrated.

9. It appears that trial court while disposed of the pre-emption

application has framed following six issues.

1. whether the petitioner is the co-sharer of the opposite party no.3

2. whether the opposite party no. 3 transferred a portion or share of

plot of land to opposite party no. 1 and 2

3. whether opposite party no. 1 and 2 are persons other than co-

sharers of raiyat opposite party no. 3

4. Whether any notice of such sale was given to the petitioner by

opposite party no. 3 or whether the petitioner waived her right of

pre-emption.

5. Whether this pre-emption case was filed within time limit as

prescribed in the West Bengal land Reforms Act

6. Whether the petitioner is entitled to any decrees of pre-emption in

respect of the 'ka' schedule property.

10. Court below wile passed the impugned order observed that findings of

the Trial Court on the aforesaid issue No. 1-5 as framed by the Trial court in

deciding the case are liable to be affirmed. If that be so why pre-emptor is

not entitled to get order in terms of issue No.6. Learned court below also

gave answer to that question by observing that pre-emption application is

not maintainable in law in terms of the discussion in paragraph 29 to 41 of

the judgment.

11. In paragraph 29-41, court below held that on careful scrutiny, it

appears that the suit property appertains to plot nos. 1964 and 1965 has

not been partitioned lawfully amongst the co-sharers. Therefore specific

identification of the suit property in the impugned deed (Ex-4) does not have

any effect. Pre-emptor has not filed present case for pre-empting the entire

land covered in the deed marked exhibit-4. Present Pre-emptor had prayed

for pre-emption in respect of 'Kha' schedule of Ex-4 by filing Title Suit 7 of

2006. Therefore there are two proceedings in respect of pre-emption of the

single deed being Ex-4. Present case is in respect of the part of the schedule

property of the deed marked Ex-4. Therefore it is a case of partial pre-

emption. Referring Smt. Ira Mistri Vs. Rupali Mandal in C.O no. 152 of

2012, court below held partial pre-emption is impermissible except sell of

several properties appertaining to different holdings in one deed of transfer

and/or sale to a stranger as well as to a co-sharer in one deed of transfer. In

this context he also referred amended definition of "holding" and observed

that the concept of several properties under the holding is not applicable in

the present case in terms of Smt Ira Mistri (Supra) judgment nor condition

for partial pre-emption in case of sale to a stranger as well as to a co-sharer

in one deed of transfer is applicable. Here in the present case purchasers

are all strangers. Accordingly if a part of sale deed (Ex-4) is allowed to be

pre-empted, the very concept of pre-emption would be fraustrated.

12. Now admittedly in written statement pre-emptee has not taken the

plea of partial pre-emption. Accordingly Trial court had no occasion to frame

any issue as to whether suit is barred by partial pre-emption or not and

parties also did not have any scope to adduce evidence or make argument

before the Trial court on that issue. The issue of partial pre-emption involves

both the question of law and fact and such issue raised for the first time by

the Appellate Court who decided the issue in favour of preemptee after

setting aside the order of Trail court which stands in favour of preemptor.

Mr. Kali on behalf of pre-emptor strenuously argued, if the issue as to

whether aforesaid pre-emption case is barred by partial pre-emption or not

is decided by this High Court or even by the First appellate court as first

forum, obviously either of the parties would have lost a forum.

13. This court in exercising jurisdiction under article 227, in essence

cannot sit to hear Second appeal and cannot act as a First forum to

adjudicate aforesaid issue involving point of law and fact in the absence of

proper evidence before the court. Examination of evidence and appreciation

of fact to answer said question is a task entrusted upon Trial court which

could not be carried out at all in the present context, in the absence of

raising such dispute before the Trial court.

14. In view of above I dispose of this Application by remanding the case

before the Trial court to frame an additional issue namely

"Whether the case is barred by partial pre-emption?"

15. The court below will decide such issue along with other issues afresh

after giving opportunity to both the parties to adduce further documentary

as well as oral evidence, if required in respect of said issues and after

hearing both the parties will adjudicate the same by writing a Judgment

afresh preferably within a period of three months from the date of

communication of the order without being influenced by any observation

made by this court or by the court below i.e. the Appellate Court.

16. The order impugned dated 25.01.2019 and 13.08.2014 are

accordingly set aside. C.O. 1040 of 2019 is accordingly disposed of.

There will be no order as to the costs.

17. Urgent Photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(AJOY KUMAR MUKHERJEE, J.)