SMT. REKHA RANI MAITY & ORS. Vs. JAGATPATI SASHMAL
HIGH COURT OF CALCUTTA
REKHA RANI MAITY And ORS
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(1.)This Revisional Application has been preferred by the petitioner respondent Khudiram Maity (since deceased, his legal heirs being duly substituted and brought on record) against the Judgment and Order dated 19.1.87 passed by the Additional District Judge, Fourth Court, Midnapur Misc. Appeal No. 115 of 1986 thereby allowing that appellant opposite parties prayer for pre-emption in respect of the disputed land setting aside the order dated 7.6.86 passed by the learned Munsif, Tamlum in Misc. case No.- 63 of 1980 dismissing the appellant opposite parties prayer for pre-emption under section 8 of the West Bengal Land Reforms Act. Facts are as follows.
(2.)The disputed plot is Dag No. 723 having a total area of 77 decimals. The said Dag No. belonged to one Sudhir Chandra Manna and one Adhir Chandra Manna opposite party Nos. 2 and 3 in the lower court proceedings who have not, however, been impleaded in the instant revisional case. The said Sudhir and Adhir sometime in 1979 sold 20 decimals from the said plot to one Jharu Das which is not, however the subject matter of the pre-emption proceedings. The said Sudhir and Adhir sold 39 1/2 decimals of land from the said plot No. 723 to Khudiram Maity (the original petitioner in this revisional proceeding) on 28.5.79 by a sale deed as per Exhibit 1 executed on 28.5.79 which is-the subject matter of the pre-emption case. The said Sudhir and Adhir thereafter transferred the remaining 171 decimals of land out of the suit plot to the said Khudiram, by deed of exchange executed on 2.6.79 as per Exhibit B. Both the sale deed as per Exhibit 1 and the deed of exchange as per Exhibit B were registered on the same date i.e. 21.8.80. The opposite party appellant Jagatpal Sashmal filed the pre-emption case under section 8 of the West Bengal Land Reforms Act in respect of the transfer of the disputed land as per Exhibit 1 = Exhibit A on 1.10.80 on the ground that he was the owner of the adjoining lands comprised in plot Nos. 871, 872, 869, 874, 907, 908 and 909. The learned Munsif after hearing the parties and on consideration of the evidence adduced by both of them dismissed the pre-emption case on the ground that the present appellant opposite party was not the 16 anas owner of the adjoining plots as specified in his petition and also on the ground that some of the alleged adjoining plots viz. Dag Nos. 869, 907 and 908 are not lands really adjoining the suit land. The learned Munsif has found him to be a co-sharer in respect of the other plots which are not the adjoining lands of the suit holding. The learned Munsif has observed as follows :-
"Now it is settled law that if the petitioner holds unspecified portions of lands adjoining the disputed plot and if the land held by the petitioner contiguous to the disputed plot are non-agricultural lime tank and its bank etc. the prayer for pre-emption cannot then be allowed".
(3.)The learned Munsif has also found that there is nothing to show that pre-emptor i.e. the present opposite party appellant possesses those lands exclusively and that no partition deed was filed to prove the same. The learned Munsif on finding that the pre-emptor has failed to prove his case for pre-emption dismissed the same. In the Misc. Appeal the learned Additional District Judge by his impugned order set aside the order of the learned Munsif and held as follows :-
"It is well settled that the right of pre-emption must be determined within the state of affairs standing on the date of transfer-although there was no partition by metes and bounds in respect of the lands held by the petitioner appellant adjacent to the suit land, still the petitioner appellant has share and title in respect of those lands in every inch". The learned Additional District Judge has found that the pre-emptor appellant has got lands adjacent to the suit land as a co-sharer. In the Revisional Application it has been urged that the learned Additional District Judge in his impugned order has not considered the specific findings of the learned Munsif made in the order dated 7.6.1986 and has totally ignored the evidence on record going against the prayer for pre-emption. At the time of hearing of the present Revisional Application additional grounds have been taken by both the present petitioner and the opposite party. Sri Bhattacharjee appearing for the present petitioners has submitted that the learned Additional District Judge has not at all taken into consideration the fact that both the sale deed as per Exhibit A and the deed of exchange as per Exhibit B although executed on different dates as noted above were registered on the same date i.e. 21.8.80. It is also submitted by Sri Bhattacharjee that the pre-emption case having been filed on 1.10.80 the said Khudiram, the pre-emptee had already become a co-sharer in the disputed holding by virtue of the deed of exchange and that as such no pre-emption could lie in respect of the transferred covered by Exhibit A dated 28.5.79 registered on 21.8.80. So, according to him, on the date the pre-emption case was filed the pre-emptee was already a co-sharer in respect of the disputed holding or the disputed plot and that as such it could not be said that the disputed land being 39J decimals of the disputed plot No. 723 was transferred by opposite party No. 2 and 3 to a stranger or a person other than a co-sharer in the holding within the meaning of section 8 of the Land Reforms Act.
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