Parimal Kumar Das & Others vs Smt. Nilima Thakur @ Paira & Others

Siddhartha Chattopadhyay, J.—Having lost the legal battle in connection with pre-emption Case No. 12 of 2001 vide judgment dated 18.11.2011, passed by the learned Civil Judge, (Junior Division) (Danton) and in connection Misc. Appeal No. 14 of 2012 vide judgment dated 12.08.2015 passed by the learned Additional District Judge, 1st Court, Paschim Mednipur, in quick succession, this disgruntled petitioner again came before this Court for establishing his claim of pre-emption.

In the interest of effective adjudication factual aspect needs to be revisited. Petitioner''s case in a capsulated form is such that the Plot No. 2126 at Deuli Mouza measuring 32 decimals of land, of which the ''Ka'' schedule property is a part, was originally owned by one Matilal Das. The said Matilal Das transferred five decimals out of the said plot to his wife Sabitri Das on 19.04.1985. Thereafter, the present petitioner No. 1 purchased �th decimals of land from Matilal Das and one decimal of the suit plot from Sabitri Das by virtue of two separate deeds which were executed on 12.10.1990. The petitioner purchased the specific demarcated portion of the suit plot and are in possession of the same by constructing a dwelling house. On 28.01.1994 Matilal Das, sold the ''Ka'' schedule property to the opposite party No. 1, which was finally registered on 11.12.2000. The petitioner''s claimed that being adjoining owner as well as contiguous tenant and co-sharer of the ''Ka'' schedule property, he is entitled to purchase the suit plot. According to him, the suit plot was not ejmali property and opposite party No. 1 is a stranger. The said opposite party No. 1 transferred a portion of ''Ka'' schedule property to the opposite party No. 2 and for which he has filed an application under Section 8 of W.B.L.R. Act.

The present opposite party had contested the said case by filling a written objection wherein she has denied all the material averments splashed against her. She denied that the claim of the petitioners as "co-sharers, an adjoining land owner as well as contiguous tenant of the suit plot" are not correct. She has made out a different case that 07.05.1999, she has transferred the ''Ka'' schedule property to one Ranjana Sar and the said opposite party No. 3 has also filed a separate written objection and denied the petitioner''s co-sharership as well as his claim as adjoining land owner. Opposite Party No. 2 did not contest in spite of receiving notice.

It appears from the record that the learned Trial Court has recorded evidence of both sides and considered the documents which were marked exhibits and after hearing argument of both sides had passed a reasoned order.

On perusal of the judgment of the Trial Court it seems to me that the petitioner canvassed his arguments on following points : (1) Matilal Das had sold the ''Ka'' schedule property to the opposite party No. 1 by executing sale deed on 28.01.1994, but the registration was complete on 11.12.2000 and so the case was filed within time. (2) That by virtue of purchase of a strip of land from original owner, which is contiguous to the suit land, he has become adjoining land owner. (3) Consideration money need not be deposited at the time of filing of the suit.

Learned Trial Court found on cross-examination of evidence of P.W. 1 and document that the impugned deed was executed on 28.01.1994 and not on 11.12.2000. There was an evasive reply from the P.W. 1 in his cross-examination, when he was asked why he could not produce the original documents. Learned Trial Court has come to the conclusion that the pre-emption case is barred by limitation. On perusal of the finding of the Trial Court, which was on the basis of a logical conclusion, this Court cannot take a divergent view. Learned First Appellate Court has also come to the said finding. Therefore, this Court has no option left with except to put a seal of approval in the said concurrent finding of the learned Courts below that the suit was barred by limitation as P.W. 1 could not establish that the registration was complete on 11.12.2000.

Schedule of the purchased deed of the opposite party No. 3 speaks that there is a strip of land belongs to the petitioner and so he is a contiguous land owner. Argument was advanced before this Court that a co-sharer raiyat, who was not served with a notice of transfer may apply for pre-emption under Section 8 Sub-Section (1) of W.B.L.R. Act within three years from the date of his knowledge in view of Article 137 of the Limitation Act. To get an advantage of that provision, the petitioner was supposed to establish that he is a co-sharer. In Sk. Samser Ali & Ors. v. Serina Bibi & Anr. reported in (2012) 2 CHN 694 and Subal Mondal v. Gopal Chandra Mondal reported in 2014 (1) CHN Cal 706, our High Court held that if the original owner has sold out demarcated portion of a land to the pre-emptor and subsequently sold the remaining portion to a preemptee, the pre-emptor does not acquire any right of pre-emption. Since he is not a co-sharer so he cannot take the advantage of Article 137 of Limitation Act.

Now this Court is to consider whether short deposit of consideration money is fatal or not. There being no penal clause in Sections 8 and 9 of W.B.L.R. Act, as was under Section 26(F) of Bengal Tenancy Act, this Court is of the view that short deposit is not fatal. On the contrary when the consideration money was disputed, it becomes the duty of the munsif (now Civil Judge, Junior Division) to consider the actual consideration money on a proper enquiry. Therefore, this Court is unable to concur with the view of the learned Trial Court in this regard. The Trial Court did not at all consider this aspect and as a result there was no finding from the First Appellate Court. Be that as it may, since the case is barred by limitation, the petitioner is not entitled to get any relief as prayed for.

Accordingly, this revisional application stands dismissed on contest. Parties to bear their own costs.

Let a copy of this order be sent to the learned Courts below for their information and taking necessary action in accordance with law.

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