Santa Das vs Kishore Kumar Burman

Arijit Banerjee, J.—This revisional application arises out of an application filed by the petitioner to enforce her right of pre-emption in respect of the concerned land. The learned 1st Court of Civil Judge (Junior Division), Midnapore, dismissed J. Misc. No. 24 of 1999 by an order dated 28th May, 2008 holding that the petitioner is not entitled to any right of pre-emption since the entire case plot has been transferred and not a portion or share thereof. The petitioner preferred an appeal being Misc. Appeal No. 63 of 2008 before the 4th Court of the Additional District Judge, Paschim Midnapore. The learned District Judge did not disturb the findings of the learned First Court. Additionally, he held that the opposite party/purchaser is not a stranger and the petitioner and the opposite party stood in the same position vis-a-vis the suit plot. The learned Additional District Judge dismissed the appeal and affirmed the order of the learned 1st Court. Being aggrieved, the petitioner is before this Court by way of the instant revisional application.

Appearing on behalf of the petitioner, Mrs. Maity, learned counsel, forcefully argued that the entire case plot was not sold and only a portion thereof was sold. In this connection, she produced and relied on the sale deed of 1998. She submitted that the Courts below have wrongly held that the entire property was sold. According to her, there is sufficient evidence to establish that only a portion of the property was sold and therefore, the petitioner has right of preemption under section 8 of the West Bengal Land Reforms Act, 1955. She submitted that the findings of the lower Courts are based on no evidence and/or complete mis-appreciation of the evidence on record and such findings are perverse warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution.

Mrs. Maity relied on a number of decisions of the Hon''ble Supreme Court. Firstly, she relied on a decision of the Supreme Court in the case of Rajasthan State TPT Corpn. and Another Vs. Bajrang Lal, (2014) AIRSCW 2058 : (2014) 3 JT 604 : (2014) 2 LLJ 257 : (2014) 3 SCALE 615 : (2014) 4 SCC 693 . She relied on paragraphs 17, 18 and 20 of the judgment in support of her submission that there is no prohibition to entertain a second appeal even on a question of fact, provided the Court is satisfied that the findings of the Courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the Court below are perverse. Secondly, she relied on the decision of the Apex Court in the case of S.F. Engineer Vs. Metal Box India Ltd. and Another, AIR 2014 SC 2189 : (2014) AIRSCW 2167 : (2014) 4 JT 284 : (2014) 4 SCALE 260 : (2014) 6 SCC 780 . She relied on paragraphs 26, 36.2, 36.3 and 37 of the judgment in support of her contention that the High Court may in exercise of revisional jurisdiction interfere with findings of fact if the same are perverse and arbitrary. Finally, she relied on a decision of the Supreme Court in the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh, (2014) AIRSCW 5018 : (2014) 9 SCALE 657 : (2014) 9 SCC 78 . She relied on paragraphs 9, 13, 15, 16, 32 and 43 of the judgment in support of her submission that the High Court in appropriate cases in exercise of its revisional jurisdiction may examine the correctness of the findings of fact arrived at by the Courts below and may re-appreciate the evidence. She submitted that this is a fit case for this Court to interfere as the judgments of the lower Courts suffer from the vice of perversity.

Appearing on behalf of the opposite party, Mr. Ghosh, learned counsel, submitted that this Court in exercise of jurisdiction under Article 227 of the Constitution should not interfere with findings of fact arrived at by the Courts below. He submitted that both the First Court and the First Appellate Court have arrived at concurrent, findings and the same do not warrant interference by this Court. He referred to page-5 of the deposition of the petitioner''s husband recorded by the First Court and pointed out that the petitioner''s husband unequivocally admitted in his evidence that the opposite party had purchased the entirety of the case plot from one Madhuri Dutta. He submitted that in the face of such admission, the petitioner''s contention that only a part of the concerned land was sold, is unacceptable. He referred to the learned First Court''s order in which reliance has been placed on such statement of the petitioner''s husband.

Mr. Ghosh relied on a decision of the Hon''ble Apex Court in the case of AIR 1975 SC 1297 , wherein the Supreme Court has observed that power of superintendence of the High Court under Article 227 is extraordinary and is to be exercised most sparingly and only in appropriate cases. The power cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as a Court of appeal. The High Court cannot in the guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court final on facts. The High Court''s function is limited to seeing that the subordinate Court''s function within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it. He also relied on the decision of the Supreme Court in the case of Roshanlal (Dead) by Lrs. v. State of Rajasthan 6 Ors; reported in (2004) 13 SCC 559, wherein the Supreme Court observed that the learned Single Judge as well as the Division Bench of the High Court were right in not interfering with concurrent findings of fact recorded by the Revenue Authorities based on evidence and in declining to exercise jurisdiction under Article 227 of the Constitution.

In reply, learned counsel for the petitioner submitted that although this is a Court of revisional jurisdiction, this Court is in fact dealing with a deemed decree. She submitted that this Court is as good as a Court of second appeal and there is no bar in law in going into a question of fact if it is found that the findings of fact arrived at by the Courts below are not supported by evidence on record. Learned counsel refers to page 7 of the deposition of the petitioner''s husband and points out that the witness stated that he did not enquire whether there was any excess land left after transfer of the subject plots by Om Prakash (original owner).

I have considered the rival contentions of the parties. It is well-established that it is only when an order of a Tribunal or inferior Court is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, that a Court can justifiably intervene under Article 227 of the Constitution. The power and duty of the High Court under Article 227 is essential to ensure that the Courts and Tribunals, inferior to High Court, have done what they were required to do. Law is well settled that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on the face of the record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no materials, or resulting in manifest injustice. As regards findings of fact, the High Court should not quash the judgment of the subordinate Court merely on the ground that its finding of fact was erroneous but it is open to the High Court in exercise of its power under Article 227 to interfere with a finding of fact if the subordinate Court comes to a conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse. (Please see Achutananda Baidya Vs. Prafullya Kumar Gayen and others, AIR 1997 SC 2077 : (1997) 2 CTC 333 : (1997) 5 JT 75 : (1997) 3 SCALE 475 : (1997) 5 SCC 76 : (1997) 3 SCR 709 : (1997) AIRSCW 1904 : (1997) 3 Supreme 673 ).

In the instant case, the learned First Court came to a factual finding that the entirety of the case plot has been sold to the opposite party. For this the learned Court relied on inter alia the deposition of the petitioner''s witness being the petitioner''s husband. The First Appellate Court did not interfere with such finding. The First Appellate Court came to an additional conclusion that the opposite party was not a stranger. In my opinion, it cannot be said that the aforesaid findings arrived at by the Courts below are based on no evidence or on complete mis-appraisal of the evidence on record. This Court in the exercise of its supervisory jurisdiction is very slow in interfering with findings of fact. In the instant case, it cannot be said that the findings of fact arrived at by the lower Courts are perverse or based on no evidence at all. As such, I am not inclined to interfere with the order impugned herein.

The application fails and is dismissed.

There will, however, be no order as to costs. This revisional application is, thus, disposed of.

Certified copy of this order, if applied for, be given to the parties on priority basis.