Bhaskar Bhattacharya, J. - (1.) This application under Article 227 of the Constitution of India is at the instance of the opposite party in an application under section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the Act) for pre-emption of the suit property on the ground of adjoining ownership and is directed against order dated 5th January, 2004 passed by the learned Additional District Judge, 2nd Court, Mursidabad in Misc. Appeal No. 42 of 2003 thereby reversing the Order No. 60 dated 16th July, 2003 passed by the learned Civil Judge (Junior Division) Additional-1st Court, Berhampore in Misc. Case No. 5 of 2001 since renumbered as Misc. Case No. 10 of 2003.
(2.) The case made out by the pre-emptor in the application for pre-emption may be summed up thus: (a) The property mentioned in schedule 'Ka' of the application comprising of holding No. 127, Netaji Road, under Berhampore Municipality record in R.S. Plot No. 689 and L.R. Plot No. 1284 originally belonged to one Haridas Barat and Harigopal Barat. One Surendra Bhattacharya, the father of the pre-emptor purchased the same from the aforesaid two recorded owners on the strength of a registered Kobala dated 19th February, 1942. Thereafter, the said Surendra Bhattacharya died on 3rd February, 1972 leaving his two sons, namely, the pre-emptor and one Somenath Bhattacharya and two daughters, namely, Kaberi Roy and Alokananda Ganguli and the widow, viz. Hasi Rani Bhattacharya. On the death of Hasi Rani Bhattacharya, the aforesaid two sons and two daughters of Surendra Nath Bhattacharya inherited one-fourth share each in "Ka" schedule property. (b) The "Kha" schedule property, which is the subject-matter of pre-emption, originally belonged to one Biswanath Dutta. The pre-emptees purchased the "Kha" schedule property from Biswanath Dutta on the strength of a registered Kobala dated 19th February, 2000 for a consideration of Rs.50,000/- but in the sale deed, the price was shown as Rs.2,55,000/-. (c) "Kar schedule property is situated at the adjacent north of "Kha" schedule property. The pre-emptor had a dwelling house on "Ka" schedule property and he was residing there and happened to be an adjoining land owner of "Kha" schedule property. A fictitious deed/sham transaction had been made in respect of 108 square feet land of "Kha" schedule property in the name of one Asish Kumar Dutta, a son of Biswanath Dutta. In fact, Asish Kr. Dutta had never purchased any portion of the suit plot for a valuable consideration from Asim Dalai, the vendor of Biswanath Dutta. In order to resist pre-emption, the aforesaid fake transaction had been made.
(3.) The aforesaid application was contested by the present petitioners by filing written objection denying the material application made in the application for pre-emption and the defence taken by the petitioners may be summarised thus: (a) Aswini Kr. Dalai was the original owner and occupier of "Kha" schedule property comprising in R.S. Plot No.690, L.R. Plot No. 1286 measuring 0.052 acre of land. While he was in possession of the aforesaid property, Aswini Dalai died leaving behind his two sons namely, Asim Kumar Dalai and Asesh Kr. Dalai and one daughter Anita Basak and his wife Karunamoyee Dalai. The aforesaid heirs of Aswini Dalai had one-fourth share in "Kha" schedule property. (b) Thereafter, those heirs of Aswini Dalai transferred the suit property to Biswanath Dutta in respect of 0.048 acres of plot No.690 and 0.008 acres in plot No.691 for a valuable consideration of Rs.4,80,000/- on the strength of a registered Kobala dated 28th January, 1999. (c) Thereafter, on 29th January, 1999 Asim Kr. Dalai and others also transferred 0.00025 acres of land to Asish Kr. Dutta on the strength of a registered Kobala for a valuable consideration which was mentioned in red colour of the deed. (d) Subsequently, on 11th December, 2000 Biswanath Dutta transferred some portion of the "Kha" schedule property measuring 0.034 decimal of land in plot Nos. 690 and 691 for a valuable consideration of Rs.4, 45,0007- to the pre-emptees. Since then the pre-emptees were in possession of "Kha" schedule property measuring 0.034 acres of land in plot Nos. 690 and 691 and they become a co-sharer raiyat of the said two plots. On 19th December, 2000, Biswanath Dutta again transferred the remaining portion of the aforesaid two plots measuring 0.022 acres of land to the pre-ernptees for a valuable consideration of Rs.2,55,000/-. Therefore, the pre-emptor being neither a co-sharer nor adjoining land owner was entitled to maintain the application for pre-emption.;