MALAY KUMAR BERA Vs. RABINDRA NATH BERA
LAWS(CAL)-1976-9-45
HIGH COURT OF CALCUTTA
Decided on September 07,1976

MALAY KUMAR BERA Appellant
VERSUS
Rabindra Nath Bera Respondents


Cited Judgements :-

RAMGATI KHAN VS. GOBINDA CHANDRA KHAN [LAWS(CAL)-2005-5-65] [REFERRED TO]
MRS. FARKHONDEH KHANUM VS. THE BOARD OF WAKFS, WEST BENGAL & ANR. [LAWS(CAL)-2016-11-4] [REFERRED TO]
KEDARNATH PANCHADHOYEE AND OTHERS VS. NAGENDRA NATH MAHAPATRA AND OTHERS [LAWS(CAL)-1980-3-47] [REFERRED TO]


JUDGEMENT

Chittatosh Mookerjee, J. - (1.)On Oct. 10, 1966, Surendralal Sinha Choudhury and Jyotirindralal Sinha Choudhury executed a sale deed in favour of the Petitioner minor Maloy Kumar Bera represented by his guardian Sm. Renuka Bera conveying 1 acre 7 decimals of land comprised in plots Nos. 3879, 3881, 3892 and 3889 appertaining to khatian No. 622, mouza Lakshmi, P.S. Khejuria, dist. Midnapore. The said kobala was presented for registration on Nov. 17, 1966. The endorsements and certificates referred to and mentioned in Sections 59 and 60 of the Registration Act and thereafter, copies in the margin of the relevant register book in terms of Sec. 61 of the Registration Act were completed on Dec. 19, 1966.
(2.)On April 3, 1967, Rabindranath Bera, who is the opposite party in the present Rule, filed in the office of the Revenue Officer, Contai, an application under Sec. 8 of the West Bengal Land Reforms Act, 1955, alleging that he was a co-sharer tenant of the raiyati holding comprised in khatian No. 622, mouza Lakshmi, P.S. Khejuri. He also claimed to be a contiguous tenant. He alleged that minor Maloy Kumar Bera was not a co-sharer and therefore, he was entitled to pre-empt the aforesaid transfer made by Surendralal Sinha Choudhury and Jyotirindralal Sinha Choudhury in favour of Maloy Kumar Bera. The vendee Maloy Kumar Bera opposed the said pre-emption application filed by Rabindranath Bera. Subsequently, the case was transferred to the Court of Munsif, First Court, Contai. The learned Munsif, First Court, Contai, by his order dated April 10, 1973, dismissed the pre-emption application filed by Rabindranath Bera finding that the real purchaser was Sudhindranath Bera, the father of the minor Maloy Kumar Bera, who was only his benamdar. The said Sudhindranath Bera was already a co-sharer tenant of the jama and therefore, the provision of Sec. 8 of the West Bengal Land Reforms Act did not apply in the case.
(3.)Rabindranath Bera being aggrieved by the said order preferred a miscellaneous appeal. The learned District Judge, Midnapore, by his order dated April 19, 1974, dismissed the said appeal. The learned District Judge held that the pre-emptor was not a co-sharer tenant of the holding on the date of transfer in question. Therefore, the preempter was not entitled to claim pre-emption as a co-sharer of the holding. The learned District Judge also agreed with the conclusion arrived at the learned Munsif that Sudhindranath Bera, the father of Maloy Kumar Bera, was the real purchaser of the disputed properties, but he held that in view of the Full Bench decision of this Court in Madan Mohan Vs. Sishu, 76 C.W.N. 1058 Bala Sudhindranath was no longer a co-sharer. The pre-emptor was found to be admittedly a contiguous tenant owning lands adjoining the disputed properties. But his application was held to be barred by limitation. The District fudge took Nov. 17, 1966 as the date of the transfer whereas the pre-emption application was fled on April 3, 1967, i.e. more than four months after the date of the transfer.
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