PARAMESWAR BERA Vs. BHAGABAT CHANDRA MAITY
LAWS(CAL)-1996-7-60
HIGH COURT OF CALCUTTA
Decided on July 25,1996

Parameswar Bera Appellant
VERSUS
Bhagabat Chandra Maity Respondents


Referred Judgements :-

TARAPADA SHOME VS. PARBATI CHARAN SARKAR AND ORS. [REFERRED TO]


JUDGEMENT

Basudev Panigrahi, J. - (1.)The instant revisional application is directed against the judgment or order dated May 5, 1994 passed by the learned Additional District Judge, 5th Court, Midnapur in Misc. Appeal No. 95/92 reversing the judgment passed by the Munsif at Dantan in Judicial Misc. Case No. 71/89. The Petitioner has, inter alia, stated that the opposite parties 1 to 4 filed an application under Sec. 8 of the West Bengal Land Reforms Act which was registered as a Misc. Case No. 71/89 against this, Petitioner and the opposite party No. 5 for pre -emption in the Court of the learned Munsif at Dantan. It was further claimed by the opposite parties 1 to 4 that they are the continuous and adjacent plot owners of plot No. 233, i.e. the property in dispute. The opposite party No. 5 transferred a portion of plot No. 233 by a registered Kobala dated July 4, 1983 to the Petitioner who happened to be a stranger without consent and/or notice to the opposite parties 1 to 4. When the opposite parties No. 1 to 4 came to know of the alleged transfer on October 27, 1989 after taking certified copy of the same from the sub -Register's Office they filed an application under Sec. 8 of the West Bengal Land Reforms Act. The Petitioner after service of notice filed written objection, inter alia, refuting ali the material! allegations contained therein. It is stated that the opposite party No. 1 was fully aware, of the transaction which had taken place between the Petitioner and the opposite party no. 5. The transaction was settled at the intervention of the opposite party No. 1. The Petitioner was a bargadar prior to his purchase under the opposite party No. 5 and he used to deliver produce to the opposite party No. 5 after obtaining proper receipt. The Petitioner does not own land more than one acre as such, the opposite parties 1 to 4 are not in any way entitled to claim pre -emption. The learned Munsif on hearing the parties was, however, not inclined to allow the application of the opposite parties 1 to 4 and thus, their prayer was rejected. Against the aforesaid judgment and/or order the opposite parties 1 to 4 preferred an appeal in the Court of learned District Judge, Midnapore and in the event of transfer of the proceeding to the Court of Additional District Judge, 5th Court, Midnapur it was heard and disposed of by the Additional District Judge by reversing the judgment of the learned Munsif. Therefore, being aggrieved by and dissatisfied with the judgment and/or order of the learned Additional District Judge, 5th Court the Petitioner preferred this revision.
(2.)Mr. Roy Chowdhury, the learned Counsel appearing for the Petitioner, has strongly urged that in this case the appellate Court has gone wrong in allowing the application filed by the opposite parties. It is further contended that since the Petitioner was a Bargadar before his purchase from Smt. Hemanta Kumari Dayee the opposite party cannot claim pre -emption from him. The Petitioner owned less than one acre of land and, therefore, the purchase made by him as a Bargadar confers a special right under Sec. 8E of the Act. The trial Court in the instant case after appraisal of evidence had reached at the correct conclusion holding the Petitioner as a Bargadar who owned less than one acre of land. The Petitioner also in the alternative laid a claim that he was an adjoining owner of the disputed premises, but both the Courts below have not discussed about 'the right of the Petitioner on the ground of adjoining ownership. Mr. Roy Chowdhury also questioned the property of the jurisdiction assumed by the Courts below while deciding Bargadar right claimed by the Petitioner. He indicated that when such a dispute arises as to the claim of a person as a Bargadar such question usually has to be decided by an officer empowered under Sec. 18 of the West Bengal Land Reforms Act.
(3.)Mr. Bhattacharyya, the learned Advocate appearing for the pre -emptor/opposite party has drawn my attention that the question of Bargadar right can be decided by the learned Munsif who has acted as a an authority under the Act while deciding an application under Sec. 8 of the West Bengal Land Reforms Act. Therefore, the learned Munsif as well as the appellate authority are quite competent to examine the contention of the Petitioner relating to Bargadari right. The Petitioner after having submitted to the jurisdiction cannot subsequently be allowed to turn round and say that both the forums are devoid of jurisdiction for deciding such an issue. When the question arises with regard to the Bargadari right under Chapter 111 of the Act, such question shall have to be decided by an officer specially empowered in that behalf. But if such question arises for consideration incidentally while deciding the rights, and liabilities of the parties the authority cannot be said to have lost their jurisdiction. The Munsif, while acting as an authority, under the provision of Sec. 8 of the Act cannot be regarded as a Civil Court so as to bring it within the mischief of Sec. 21(3) of the Act. Mr. Bhattacharjee further, has taken me through the averments of the petition filed under Sec. 8 of the Act and also written objection filed by the Petitioner. In the written objection though the Petitioner has taken a stand that he too is a contiguous owner but in support of his plea he has stated before the authority that he owned only two decimal in plots No. 108/835. It is true that this point was not discussed by both the courts below but there are even sufficient materials before us for deciding contiguous ownership of the Petitioner vis   -vis the pre -emptor/opposite party. The pre -emptor/opposite party has larger extent of land who have preferential right of pre -emption over the Petitioner.
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