Jyotilal Mahato & Ors vs Dibakar Rajak & Anr

Biswajit Basu, J

Affidavit of service filed in Court today be kept on record.

None appears on behalf of the opposite parties in spite of service.

The revisional application under Article 227 of the Constitution of India is at the instance of the pre-emptors and is directed against the judgment and order dated November 30, 2006 passed by the learned Additional District Judge, 1st Court, Purulia in Misc. Appeal No. 1 of 2006 thereby affirming the judgment and order dated November 11, 2005 passed by the learned Civil Judge (Junior Division), Purulia in Misc. Case No. 82 of 1989.

The predecessor-in-interest of the petitioners, namely, Daman Mahato, since deceased, along with his three brothers, namely, Haricharan Mahato, Arjun Mahato and Durjodhan Mahato acquired some properties by a registered deed of sale dated October 13, 1947 and used to possess the same jointly. The said Arjun Mahato died intestate leaving behind his widow Achala Mahato (since deceased) as his sole heir and legal representative. The said Achala Mahato by a deed of sale executed on June 30, 1987 registration of which was completed on June 22, 1989 sold her entire share in the suit property which she inherited from her husband to the opposite party nos. 1 and 2 herein.

The said Daman Mahato, the predecessor-in-interest of the petitioners sought to pre-empt the said sale on the grounds of non-notified co-sharership and also on the ground of vicinage by filing an application under Section 8 of The West Bengal Land Reforms Act, 1995 (hereinafter referred to as the said Act, in short) which was registered before the learned Trial Judge as Misc. Case No. 82 of 1989.

The learned Trial Judge by the judgment and order dated November 11, 2005 dismissed the said misc. case holding that since the said Achala Mahato (since deceased) since has sold her entire share in the suit property, the application for pre-emption under Section 8 of the said Act is not maintainable.

The learned Trial Judge also refused to grant relief to the petitioners on the ground of adjoining ownership on the holding that since there is no partition amongst the co-sharer of the suit plot, the ground of vicinage is not available to the petitioners.

The appeal Court below by the impugned judgment and order has affirmed the said order of the learned Trial Judge holding that the suit properties since has been recorded in the names of four brothers under separate khatians, the ground of co-sharership to pre-empt the disputed sale is not available to the petitioners.

Ms. Shila Sarkar, learned counsel appearing for the petitioners, submits that creation of a separate khatian in respect of the shares of the co-sharers in a plot of land does not signify the partition of the plot of land amongst it's co-sharer and creation of separate khatians for the co-sharers of a plot of land the ejmali character of the suit plot does not cease to exist. Ms. Sarkar relying on the decision of the learned Single Bench of this Hon'ble High Court in the case of Smt. Bula Kundu -vs.- Sri Nirmal Kumar Kundu and anr. reported in 2000 (1) CHN 505 submits that to maintain an application for pre-emption on the ground of vicinage it is not necessary that the pre-emptor must be the full owner of the adjoining plot even a co-sharer of the adjoining plot may apply for pre-emption.

Heard Ms. Sarkar, learned counsel appearing for the petitioners.Perused the materials on record.

In terms of Section 2(6) of the said Act,

"co-sharer of a raiyat in a plot of land" means a person, other than the raiyat, who has an undemarcated interest in the plot of land along with the raiyat."

So long the demarcation as contemplated under Section 2(6) of the said Act is not affected by any of the modes as prescribed under Section 14 of the said Act, the raiyats of a plot of land would remain co-sharer with each other notwithstanding the fact that their sharers in the plot of land has been recorded in separate khatians.

In the present case there is no evidence on record wherefrom it can be held that the said four brothers had affected partition amongst themselves in respect of their sharers in the suit plot, through any of the modes prescribed under Section 14 of the said Act.

The learned Courts below, therefore, have committed error in holding that the said four brothers are no longer co-sharers in respect of the suit plot as their shares have been recorded in separate khatians.

It is rightly submitted by Ms. Sarkar that to maintain an application for pre-emption under Section 8 of the said Act on the ground of vicinage is not necessary that the pre-emptor has to be a full owner of the land adjoining to the suit plot as has been held by the Single Bench of this Court in the case of Smt. Bula Kundu (supra).

The question whether an application under Section 8 of the said Act is maintainable or not when a co-sharer transfers his entire share in the plot of land to any person other than the co-sharer in the said plot of land is no longer res integra in view of the Special Bench judgment of this Court in the case of NAYMUL HAQUE @ NAINUL HAQUE Vs. ALLAUDDIN SK. reported in 2019 (1) CLJ (CAL) 488.

In the said decision since it has been held that under a situation where co-sharer transfers his entire share to any person other than the co-sharer in the plot of land the application for pre-emption under Section 8 of the said Act is maintainable, the right of the pre-emptors/petitioners to get the disputed sale pre-empted cannot be denied on the said ground and the said right is required to be investigated afresh.

CO 1080 of 2007 is disposed of by setting aside the order impugned and by directing the learned Civil Judge (Junior Division), Purulia to decide the Misc. Case No. 82 of 1989 afresh in the light of the observations made hereinabove.

No order as to costs.

The misc. case since is pending 1987. The learned Trial Judge is requested to expedite the hearing of the said misc. case.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.