Madan Mohan Kotal vs Gobinda Kotal and Another

Appellant is the purchaser from a co-sharer of certain land regarding which the Respondent No.1 had filed a suit on the basis of pre-emption in the Court of Munsiff which was decreed. This decree was challenged by the appellant before the District Judge who allowed the appeal and set aside the decree. The revision filed thereafter by Respondent No.1 was allowed by the Calcutta High Court. It is against this judgment that the present appeal has been filed.

We have heard learned Counsel for the appellant. No one appears on behalf of the respondents.

The right to pre-emption was claimed by the respondent No.1 mainly on two grounds - (a) that he was a co-sharer and (b) that the land in his possession was just adjacent to the land in question. It appears that the right based on the ground of vicinage was not raised before the Trial Court as also before the District Judge. The right based on that ground was, therefore, not adjudicated either by the Munsiff or by the District Judge. The High Court on the contrary, allowed that ground to be raised. The High Court thus committed a manifest error in allowing the ground of vicinage to be raised and, that too, on the ground that it could not be believed that the said ground was given up as it was raised in the memo of appeal filed before the District Judge.

We are of the opinion that the High Court was in error in allowing a ground which had been given up before the Trial Court and the District Judge to be raised for the first time in revision. The claim of Respondent No.1 on the ground of co-sharer ship had not been accepted by the High Court.

In view of the above, the appeal is allowed. The judgment and order passed by the High Court is set aside and that of the District Judge is restored. However, there will be no order as to costs.