Jella Rahaman Mondal and Others vs Gelezam Bibi

A.K. Nandi, J.—This revision has been preferred against the judgment In Misc. Appeal No. 132 of 1984 delivered by the third Court of Additional District Judge, Murshidabad. The opposite party filed an application for pre-emption in the first court of Munsif, Berhampore u/s 8 of the Land Reforms Act. She sought to pre-empt by virtue of her being a co-sharer of the holding by purchase. The Munsif by a cryptic order allowed the application ex-parte. The petition preferred an appeal which ended in dismissal.

In order to maintain an application u/s 8 of the West Bengal Land Reforms Act hereinafter called the Act the pre-emptor must be a co-sharer of the holding. There is no dispute that the opposite party purchased 33 decimals of land appertaining to plot No. 897 of Khatian No. 2937 of mouzaShibnagar, Laskarpur on 16/12/77. There is no controversy either that the land sought to be pre-empted also appertains to the same khatian and jama. Referring to the decision in Madan Mohan Ghosh and Others Vs. Sishu Bala Atta and Others, it is argued that the opposite party cannot be a co-sharer of the holding. The said decision has no manner of application in the present case. The effect of vesting and retention of land came up for consideration before their lordships. In the instant case the opposite party claims to be a co-sharer in the holding by puirchase.

The term holding has been defined in section 2 (6) of the Act the land or lands held by raiyat". This definition has been brought into existence by deletion of the words "and treated as a unit for assessment of revenue" occurring after the present definition by virtue of section 26(1)(a) of the West Bengal Land Holding Revenue Act, 1979. The effect therefore is that ail the lands of a raiyat taken together will constitute a holding (Debendra Nath Karak v. R. Pal, 1986(1) CHN 183 = 90 CWN 22) if the case of the opposite party comes within the mischief of the present definition the opposite party cannot definitely claim to be a co-sharer even by her purchase. But section 26(1)(a) of the West Bengal Land Holding Revenue Act, 1979 came in force only on 14/1/81. Section 26(2) of West Bengal Land Holding Revenue Act provides that any proceeding pending on the date of such coming into force of this Act before any Authority appointed under the said Act or any court shall be continued and disposed of as it this Act had not come into force in that district. The opposite party initiated the pre-emption proceeding in 1976. Therefore the amended definition of holding shall not be attracted in the instant case. The original definition of holding as contained in section 2(6) of the Act shall be attracted. According to that definition of the term "holding" only those lands which were treated as a unit for assessment of revenue were to be regarded as holding. By purchase the opposite party became a co-sharer of the jama or rather the lands in the suit khaitan bearing a jama.

Reliance is placed on the case of Bhagwan Das (Dead) by Lrs. and Others Vs. Chet Ram, to contend that in order to succeed in a case of pre-emption the opposite party must continue to be a co-sharer until order of pre-emption. She has ceased to be a co-sharer on 14/4/81, it is argued, since she is no more a co-sharer of the holding as amended by West Bengal Land Revenue Holding Act. I have said that the mischief of the amended definition of holding shall not be attracted in the instant case by reason of protection afforded by section 26(2) of West Bengal Land Revenue Holding Act. Therefore the argument on this score fails. Two Single Bench decisions in Kalipada Ghosh v. Dulal Chandra Ghosh (1978 (11) CL3 155) and Pashupati Mondal v. Subhrangsu Mandal (1981 (2) CLJ 22) are relied upon to argue that the learned court below could not grant pre-emption without a finding as to whether the order of pre-emption would exceed the ceiling limit of the opposite party as prescribed u/s 14M of the Act. The Division Bench in Ismail Sk. Vs. Fosiuddin Mondal, overruled the Single Bench decisions and held that in disposing an application of pre-emption Munsif was not required to determine the ceiling limit. What was meant by section 14M is that the order of pre-emption would not be exempted from the operation of section 14M and that such determination ceiling limit remained within the exclusive jurisdiction of the Revenue Officer notwithstanding the unhappy drafting of section 14M. This argument of the petitioner also does not succeed.

I find no jurisdictional error of the court of appeal below. Consequently the revision fails.