Monoranjan Senapati vs Chabi Karan & Anr.

This revisional application is directed against the order and judgment dated November 16, 2017 passed by the learned Additional District Judge, Sixth Court, Paschim Medinipur in connection with Misc. Appeal No. 102 of 2011 affirming the judgment and order dated May 25, 2011 passed by the First Court of Civil Judge (Junior Division), Paschim Medinipur in Judicial Miscellaneous Case No. 1 of 2009.

The appellant petitioner filed an application under Section 8 & 9 of the West Bengal Land Reforms Act seeking preemption against the opposite party no. 1, inter alia, on the ground that he is cosharer of a Raiyat in respect of plot no. 150. It is not in dispute that the said plot of land comprised of 57 decimal of land and was owned by one Sachindranath Das. By virtue of a registered deed of sale the said owner sold, transferred and conveyed the entire plot of land to Gitarani Das. Subsequently, the said Gitarani Das sold 29 decimal of land out of 57 decimal to one Ramesh Chandra Das and the remaining 28 decimal of land to Sarajubala Das. It is not in dispute that both the subsequent purchasers were husband and wife. The said Ramesh Chandra Das subsequently transferred his purchased plot of land to the petitioner and thereafter Sarajubala Das sold her purchased property to opposite party no. 1.

The petitioner claims that there was no partition effected in the plot of land and the moment he purchased the undivided share in a plot of land from Ramesh Chandra Das he became a cosharer thereof and is entitled to claim preemption against the opposite party who subsequently purchased the share of the other cosharer namely Sarajubala Das.

The trial court held that the Gitarani Das who was the sole owner of the entire plot of land, sold a demarcated portion to the husband and wife and the petitioner being a subsequent purchaser from the husband, cannot claim a right as cosharer in a plot of land and proceeded to reject the application for preemption. According to the trial court, if the common vendor sold a well-demarcated portion to the purchasers, the preemption under Section 8 of the said Act does not lie. The appellate court affirms the judgment and the order of the trial court reiterating that if a welldemarcated portion of a property is transferred by a common vendor, the preemption does not lie.

The learned Advocate for the petitioner submits that both the courts have proceeded wrongly that a welldemarcated portion was sold by a common vendor to Ramesh Chandra Das and Sarajubala Das. According to him, the plot was undemarcated and if the right, title and interest is created in an undivided plot of land, the first purchaser becomes a cosharer and entitled to claim preemption against a subsequent purchaser.

My attention is drawn to the deed of sale executed in favour of Sarajubala Das by Gitarani Das. There is no difficulty in arriving at the conclusion that the schedule appended to the said deed which was also marked as an exhibit in the proceeding that a well-demarcated plot was sold, transferred and conveyed to Sarajubala Das. It can be logically inferred that the said common vendor sold the remaining demarcated portion to Ramesh Chandra Das.

The point hinges in the instant revisional application is whether the preemption under the aforesaid provision would lie if a common vendor sold, transferred and conveyed the well-demarcated portion of the entire plot of land to different persons.

The aforesaid point is set at rest by me in a decision in the case of Narendra Kumar Singh & Anr. Vs. Gursharan Kaur & Ors. reported in (2016) 2 WBLR (Cal) 314. The identical point arose therein which can be seen from the recording made in paragraph 12 which runs thus:- Paragraph 12.

Whether an application for preemption is maintainable when the entire share or a portion of a plot of land is transferred by a raiyat or can only be maintained if a portion of a share of a plot of land is transferred by raiyat to a third party other than the co-sharer;

Whether the preemption is available to a purchaser of a well demarcated portion from an admitted owner who subsequently sold the remaining portion to a third party on the ground of co-sharership;

Whether the plea of limitation is available, if at the time of allowing an application for amendment, the Court did not restrict its operation from a particular date if the original application on the other ground is well within the period of limitation.

The second point is answered in the following:- 17. Admittedly, Mira Debi who owned and possessed twenty-eight cents of land in plot No. 1086 sold six cents of land to Subhadra Debi and Chhedi Show in the year 1990. The said deed being exhibit 1 clearly depicts the well-demarcated portion having sold through the said deed. The aforesaid purchasers, in turn, sold undemarcated land measuring five cents out of demarcated six cents of land to the petitioners by executing the deed of sale dated 31st July, 1992. The remaining one cent of land was subsequently gifted to Jai Kaur being the member of the family of the petitioners by the said purchasers in the year 2006. The deed of gift which is exhibit A contains a description of the said land with its demarcation. Therefore, the entire six cents of land purchased by Subhadra Debi and Chhedi Show, which was demarcated by the admitted owner, i.e., Mira Debi, was sold, transferred and conveyed to the petitioners and their family members. Subhadra Debi alone purchased a further five cents of land from Mira Debi in the year 1992 and the deed of sale being exhibit 7 does not show that the said land sold by the Mira Debi was well demarcated from the remaining portion of the land retained by Mira Debi. The said five cents of land is subsequently sold to the opposite party Nos. 1 and 2 by Subhadra Debi in the year 2006. In this regard the reference is made to a judgment referred by this Court in Sk. Samser Ali Vs. Serina Bibi (Supra), it is held that if a well demarcated portion is sold by the original owner of a plot of land, the purchaser does not became the cosharer with the original owner in this words :

Having considered the respective submissions it is undisputed that the plot No. 633 comprised in 244 satak out of which 144 satak is a tank and the remaining 80 satak is an embankment. Admittedly the petitioners purchased 26 satak out of 80 satak prior to the purchase by the opposite party No. 1. The petitioner filed the record of rights before the Trial Court being Ext. 6 to show that their name has been recorded in respect of the said plot No. 633 as cosharer. From the sale deed produced by the petitioner whereby the opposite party No. 2 sold 3 satak of land to one Manowara Bibi, the petitioner No. 2 herein. It appears that a well-demarcated portion has been sold. When an original owner has sold the well-demarcated portion it does not attract section 14 and the said purchase does not become the co-sharer along with the original owner. Admittedly the remaining portion of the larger property owned by the opposite party No. 2 being the original owner sold the same to the opposite party No. 1 and this it cannot be said that a portion or a part of the plot of land was sold."

In case of Subal Mondal (Supra), the co-ordinate bench held:

"17. the co-sharer of the raiyat in a plot of land has been defined in Section 2(6) as a person other than the raiyat who has an undemocratic interest in the plot of land along with the raiyat. If a raiyat being sole owner of the entire plot of land sells out a well demarcated portion of the land to different purchasers through different kobalas then each purchaser becomes sole owner of the demarcated portion purchased by him and none of them becomes a co-sharer of the demarcated land sold out to other purchasers. As such, pre-emptor Gopal Chandra Mondal was not a co-sharer of Sankar Nath Mondal, vendor of the pre-emptee, relating to Sankar''s purchased lands."

It is, therefore, clear that the petitioners having purchased the well demarcated portion from Subhadra Debi and Chhedi Show who purchased the said plot of land from the admitted owner cannot be a cosharer of a raiyat. Though Section 14 of the Act recognizes the incident of partition but the same has no manner of applicability if there was no cosharer of a plot of land which was owned solely by a single person and having divested his right, title and interest in a portion of a land with full demarcation. If the petitioners cannot be a co-sharer with admitted sole owner he cannot assume such character if the remaining portion of the plot of land apart from well-demarcated portion is transferred to a third party.

The Division Bench in the case of Rabi Kumar Dass & Ors. Vs. Chittaranjan Das & Ors. reported in 2006 (4) CHN 302 also held that once a well-demarcated portion is transferred by a sole owner to a person, such person cannot be said to be a co-sharer of his vendor in these words:- 8. There is no dispute that one Alamohan Das, since deceased, the father of the defendant, was the original owner of the suit property and other properties. The said Alamohan Das in the year 1951 gifted 3 bighas 15 cottahs and 3 chittaks of land of Dag Nos. 3470, 3480-, 3481, 3482 and 3483 in favour of the defendant, his son, as specifically shown in the plan annexed to the deed of gift being surrounded by red dots. The said Alamohan Das, 10 years thereafter, sold some other properties of the same plot to the plaintiffs and thus, they became the owners in respect of their purchased property by virtue of the said deed of 1961. Once it is admitted by the plaintiffs that their predecessor Alamohan Das was the absolute owner of the property without any co-sharer and out of that property, he first gifted some portion to his son, his son cannot become a co-sharer of Alamohan Das but the defendant in fact become absolute owner in respect of he portion gifted to him. Subsequently, Alamohan Das sold some other properties to the plaintiffs and by virtue of that deed, they also became the absolute owners of those portions. Therefore, Alamohan Das had no right over the transferred portion to either the defendant or the plaintiffs by the aforesaid two deeds. When the plaintiffs acquired the property from Alamohan Das in the year 1961, the defendant was not the co-sharer of his father because the father had already gifted a part of his property to the defendant and, thus, by virtue of the purchase from Alamohan Das, the plaintiffs cannot by any stretch of imagination become the co-sharer of the defendant.

It is, therefore, clear that the plaintiffs were never the co-sharer of the defendant they having purchased a definite portion from Alamohan Das at a point of time when the defendant has already acquired absolute title by virtue of the deed of gift executed in his favour. If according to the plaintiffs, he had not got possession of the actual area covered by their sale deeds, it was their duty to file a suit for recovery of possession from their vendor or his successors on the basis of title accrued in their favour by virtue of the sale deed of the year 1961 but a suit for partition against the defendant who became the absolute owner long 10 years ago by dint of the deed of gift executed by his father was not maintainable as he cannot be described as the co-sharer of the plaintiffs.

In view of the law enunciated in the aforesaid reports, this court, therefore, does not find that the order impugned in this revisional application suffers from any infirmity and/or illegality. Admittedly, Gitarani Das was the sole owner and sold a well-demarcated portion of the land to Ramesh Chandra Das and Sarajubala Das. If Ramesh Chandra Das cannot claim to be the co-sharer of Gitarani Das, the purchaser of the plot of land from Ramesh Chandra Das cannot elevate his status than of the Ramesh Chandra Das.

The revisional application is devoid of merit. The same is hereby dismissed. However, there shall be no order as to costs.