Ramapada Jana vs Kamala Samanta & Another

Biswajit Basu, J

The revisional application under Article 227 of the Constitution of India is at the instance of pre-emptee in a proceeding under Sections 8 and 9 of

the West Bengal Land Reforms Act, 1955(hereinafter referred to as the ‘said Act’ in short) and is directed against the order dated January 20,

2006 passed by the learned Additional District Judge, 4th Court, Paschim Medinipore, in Misc. Appeal No. 29 of 2005 thereby affirming the judgment

and order dated February 28, 2005 passed by the learned Civil Judge(Junior Division), Ghatal in Misc. Case No. 20 of 2003.

The facts necessary to decide the issue involved in the present revisional application as recorded by both the learned Courts below on consideration

of the pleadings of the suit is that one Ganash Chandra Maity was the admitted owner of the suit property who died before the promulgation of the

Hindu Succession Act, 1956 as such on his death his only son Krishna Chandra Maity inherited the suit property in exclusion of the daughters of the

said Krishna Chandra Maity. The said Krishna Chandra Maity had no issue and he by two separate deeds of gift dated January 13, 1959 gifted 1/3rd

of his landed properties to the son of one of his sisters namely Sital Doari and 2/3rd of his landed properties to the son of his another sister namely

Ramswaran Samanta. The said Sital Doari by virtue of the said deed of gift got the suit property.

The said Sital Doari by the impugned deed of transfer dated June 14, 2001 transferred the suit property in favour of the petitioner. The widow and

the daughter of the said Ramswaran Samanta sought to pre-empt the said sale by filing an application under Sections 8 and 9 of the said Act on the

ground that the said Sital Doari being a co-sharer of the petitioners in respect of the suit property cannot transfer the same to the petitioner who is a

stranger to the suit property without giving notice as required under Section 5(5) of the said Act. The said application was registered before the

learned Trial Judge, as Misc. Case No. 20 of 2003.

The learned Trial Judge allowed the said application holding that since there was no partition between Sital Doari and Ramswaran Samanta the

heirs of the Ramswaran Samanta are co-sharers of the said Sital Doari in respect of the suit property.

The petitioner assailed the said judgment and order of the learned Trial Judge in appeal. The appeal Court has affirmed the judgment and order of

the learned Trial Judge by the order impugned in the present revisional application.

Mrs. Maity learned counsel appearing on behalf of the petitioner throws challenge to the legality and validity of the order impugned of two fold

grounds. Firstly the admitted owner of the suit plot by two separate deeds of gift had gifted the demarcated portion of his landed properties which

includes the suit plot to Sital Doari and Ramswaran Samanta long prior to the provision of Section 14 of the said Act came into force. Therefore, both

the learned Courts below have committed error in holding that the said Sital Doari and Ramswaran Samanta are co-sharers of each other in respect of

the suit property as there was no partition of the suit plot between them by any of the modes prescribed under Section 14 of the said Act. Secondly

the pre-emptors/opposite parties are not seeking pre-emption of the entire properties transferred by the impugned deed of sale as such the application

for pre-emption is not maintainable being barred for partial pre-emption. In support of her said second contention she relies on the decision of the

learned Single Judge of this Court in the case of SURENDRA NATH JANA Vs. ABHIMANYU JANA AND ANOTHER reported in 1980 (1)

CLJ 135.

On the other hand Mr. Chakraborty, learned counsel appearing on behalf of the opposite parties submits that there was no partition between the

Sital Doari and Ramswaran Samanta and they enjoyed joint possession of the properties gifted to them by Krishna Chandra Maity and so long a

partition by metes and bounds is not affected between Ramswaran Samanta and Sital Doari they would remain co-sharer of each other in respect of

the properties so gifted to them by their maternal uncle Krishna Chandra Maity. Therefore, according to him both the learned Courts below have

rightly held that the petitioners being the co-sharers of the vendor of the petitioner in respect of the suit property is entitled to pre-empt the disputed

sale. He further argues that the petitioner opted to pre-empt only those properties conveyed under the impugned sale deed in respect of which they

are co-sharers of the vendor of the pre-emptee, therefore, the Misc. Case is not hit by the doctrine of the partial pre-emption.

Heard Mrs. Maity and Mr. Chakraborty perused the materials on record.

In terms of Section 2(6) of the said Act the co-sharer of a riayat in a plot of land is a person other than the raiyat who has an undemarcated interest

in the plot of land along with the raiyat, therefore, when interest of a raiyat in a plot of land is not separated distinctly with the interest of other raiyats

in the said plot of land they are co-sharers to each other in respect of the said plot of land. The admitted owner of the suit property Krishna Chandra

Maity by two separate registered deeds of gift executed on January 13, 1959 and registered on February 03, 1959 gifted 1/3rd and 2/3rd of his landed

properties to his said two nephews namely Ramswaran Samanta and Sital Doari respectively.

Section 14 of the said Act prescribes mode of partition of land amongst the co-sharers in a plot of land. The said provision of the said Act since

came into force with effect from June 07, 1965, much after the execution and registration of the aforementioned deeds of gift, therefore, it is required

to be looked into that the properties gifted by the admitted owner Krishna Chandra Maity to his nephews are sufficiently identifiable so as to saitisfy

the requirement of demarcation of the property to constitute a partition between them. On perusal of the order of the learned Trial Judge and the order

of the appeal Court below it appears that such investigation has not been carried out by both the Courts below although answer to the said

investigation goes to the root to the case.

A partial pre-emption has not been contemplated under Sections 8 and 9 of the said Act as has been held by the learned Single Judge of this Court

in the decision relied on by Mrs. Maity reported 1980 (1) CLJ 135 (supra). Admittedly the pre-emptors have not opted to pre-empt the entire

properties sold in favour of the petitioner by the impugned deed of sale. The learned Trial Judge allowed the application for pre-emption of the

opposite parties in respect of the landed properties described in column no. 1 of the schedule of the pre-emption application but before doing so the

learned Trial Judge ought to have enquired whether such prayer of the pre-emptors/opposite parties is hit by the doctrine of partial pre-emption or not.

The application for pre-emption, therefore, requires a fresh consideration in the light of the observations made above, the order impugned as well

as the order of the learned Trial Judge are set aside with a direction upon the learned Trial Judge to decide the J. Misc. Case No. 20 of 2003 afresh,

considering the age of the Misc. Case learned Trial Judge is requested to expedite the hearing of the same.

C.O. No. 357 of 2006 is thus disposed of.

No order as to costs.

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