Prasenjit Mandal, J. - (1.) THIS Review application under Order 47 of the Code of Civil Procedure is directed against the order dated August 24, 1995 passed by the Hon"ble Chief Justice, High Court, Calcutta, in Civil Order No. 2548 of 1989 thereby dismissing an application under Article 227 of the Constitution of India arising out of Judgment and order dated May 15, 1989 passed by the learned Additional District Judge, First Court, Murshidabad in Misc. Appeal No. 68 of 1988 thereby reversing the Order No. 49 dated June 29, 1988 passed by the learned Munsif, Second Court, Berhampore in Misc. Case No. 51 of 1980.
(2.) THIS short fact is that the opposite parties filed an application under section 8 of the West Bengal Land Reforms Act, 1955 for pre-emption of 0.14" acre of land in plot No. 3200 appertaining to Khatian No. 1160 of Mouza Suragapur, under P.S. Naoda against the petitioner and that the same was registered as Misc. Case No. 51 of 1980. It was contended that one Sitanath Sarkar, the owner of the said 0.14" acres of land in the said plot transferred the said land to the petitioner by a registered deed of sale dated November 21, 1979 and the said land is adjoining to plot No.3201 which was purchased by the father of the opposite parties in Benami of the Opposite Party No. 1 by a deed of sale dated March 19, 1960.After the death of the father of the opposite party No. 1, the opposite party No. 1 and other heirs inherited his share. Thereafter by an agreement dated October 13, 1969, the opposite party no.1 admitted the right of the opposite party Nos. 2 & 3 in the said property under the plot No. 3201 and they constructed a house in the southern part of the plot No. 3201. Thus the opposite parties became the owners of the land under plot no.3201. They have no excess land beyond the ceiling limit and so they are entitled to get an order of pre-emption of the land in plot No. 3200 as the adjoining owners. That applicant is being contested by the petitioner. By the impugned order the learned Chief Justice has observed that the findings of the lower Appellate Court to the effect that the lands are contiguous and thus he upheld the decision of the Appellate Court for pre-emption. He has dismissed the application. Being aggrieved, this review application has been preferred. Mr. Roy Chowdhury appearing on behalf of the petitioner submits that the order impugned does not lay down any reason or discussion in support of the ingredients of section 8 of the West Bengal Land Reforms Act. Even the order impugned does not lay down the decision cited by him, though in fact, he referred to two decisions in support of his submission during course of making argument. Mr. Roychowdhury has referred to this Bench the 2 said decisions being 1987(I) CHN 88 particularly paragraph No. 6 and 1980(I)CLJ 395 particularly paragraph No. 7, and thus Mr. Roychowdhury has submitted before this Bench that as per decision , the opposite parties cannot be treated as adjoining holders of the land being plot no.3200 and so the order of pre-emption passed by the lower appellate court is not proper. He has also submitted that since there was no partition amongst the co-owners of the plot no.3200, the co-sharers have right to possess every inch of the property in the said holding and thus the petitioners of the Misc. Case are not entitled to get pre-emption. He has also submitted that it cannot be said that any co-owner is possessing a specific portion of the land excluding the others and that for that reason, the order of pre-emption should not have been supported.
(3.) ON the other hand Mr. Jiban Ratan Chatterjee appearing on behalf of the opposite party submits that there is no illegality or impropriety in the impugned order. The Hon"ble Chief Justice has passed the order properly. He has also referred to the decision of 2009 (10) SCC 464 particularly paragraph 12 and thus he has submitted that if there is any apparent mistake that can be rectified and for that reason entire order need not be set aside. In fact, he has supported the decision. Now, the point arises for decision is whether impugned order is justified. Upon hearing the learned counsel for the parties and on going through the materials on record I find that the learned Lower Appellate Court has clearly observed that the petitioners of the Misc. Case are the owners of the plot No. 3201 on the basis of a deed of Kobala dated March 19, 1960 and subsequent settlement in 1969 amongst themselves. The land in question of the pre-emption matter is over 14" decimals of land under the plot No. 3200 of Mouza Suragapur and that piece of land was transferred on 21.11.1979 by a registered deed. As per materials on record it is specific observation of the Appellate Court that the plot No. 3200 is adjacent to the plot no.3201. There is no evidence that the partition of the land was held. But it is the specific evidence that the land in question is the southern portion of the plot No. 3200 and that no other person possesses any land between the land in question (i.e. southern portion of the plot no.3200) and the plot no.3201 possessed by the petitioners of the Misc. Case. No doubt the plot No. 3200 has been recorded under two Khatian Nos. 1159 and 1160 meaning thereby the plot has been divided. It is the specific evidence of OPW No.1, husband of the opposite party of the Misc. Case that the plot No. 3201 is to the east of the plot No. 3200 (i.e. land in question) and that in between the two plots, no other person has any land. So from the evidence on behalf of the petitioners of the Misc. Case as well as the admission of the OPW No. 1, there is no dispute that the land in question and the land possessed by the petitioners of the Misc. Case are not intervened by any other third person. The order of pre-emption has been granted by the Lower Appellate Court on the ground of vicinage and the vicinity has been established by the evidence on record in the manner indicated above.;