Premamoy Jana vs Mohan Ch. Jana and Another

B.N. Maitra, J.—The pre-emptor''s case Is that the disputed property of schedule ''kha'' was purchased by him and by the opposite party no 2 in 8 annas share each by a kobala dated 26th December. 1962. Then by a kobala registered on the 27th April, 1974 opposite part no 2 sold his 8 annas share in the property to opposite party no. 1 without serving any notice en him. He first came to know of the purchase on the 30th June. 1975. He obtained a certified copy of the document on the 8th August. 1975. Then the present misc case was filed for pre-emption under sec 24 of the West Bengal Non-Agricultural Tenancy Act and alternatively u/s 8 of the West Bengal Land Reforms Act en the ground that he was a co sharer Then he elected to proceed u/s 24 of (he first Act. Opposite party no 1 contested the application. His plea was that the property was purchased by the pre emptor''s father and the pre emptor was a mere benamdar. A suit was filed against Laba Santhai and Matal Tudu regarding a potion of the property by the pre emptoi''s lather, who conducted the entire litigation end in that case the benami transaction was established.

The learned Munsif accepted the opposite parties'' version and dismissed the misc. case. An appeal was preferred. The appellate court reversed the decision of the learned Munsif, held that the pre-emptor was net his father''s benamdar and the pre emptor and opposite party no 2 jointly purchased the property and hence they were co sharers. The prayer was, therefore allowed and necessary orders passed. Hence this revisional application.

It has been contended on behalf of the petitioner that the decision of the appellate court is entirely against the weight of evidence The evidence given by 0 P. No 1, Mohan, was not properly considered by the appellate court. Similar mistake was made by that Court regarding the statements given by O.P.W. 1 Bireswar, and O.P.W. 2, Harlpada The evidence of these persons was not properly appreciated That court came to en erroneous decision on a question of law regarding benami because the provisions of section 33 of the Indian Evidence Act are not applicable to the facts of this case The petitioner was not a party to that case and hence the contents of Ext B were improperly taken into account by the learned appellate court. Reference has been made to the case of Hiralal vs. Kasturbhai in AIR 1976 SC 1853 at page 1855 It has been stated that when the decision of the sppellate court is Incorrect, such question of fact can be permitted to be ralsed in revision.

The learned Advocate appearing on behalf of the opposite party has referred to the case of Sarkies vs Prasonnomoyee in ILR 6 Cal. 794 to show that where a deed of conveyance recited that the vendor was seized of, the property intended to be sold and It purported to convey the property, in a suit for dower by the vendor''s widow against the purchaser''s heirs it was held that although as between the plaintiff and the defendants, there was no estoppel yet. since the purchaser brought the property, the recital was prima facie evidence against the purchaser and also against the persons claiming through him that the estate conveyed was what it purported to be, the same being an admission by conduct of parties, which amounted to evidence against them. There is a recital in the pre-emptor''s deed of purchase that a partition had already been effected and thereafter a joint purchase was made by him and by opposite party no. 2. After such purchase, the transferee pre-emptor is bound by such statement contained in the original deed of purchase.

The case of Hiralal vs. Kasturbhai (supra) is on a different point because the suit was brought in the Court of Small Causes u/s 28 of Bombay Roots Hotel and Lodging House Rates Control Act, 1947 The allegation was that the appellant was a trespasser. In such circumstances, it was stated that a decree against a trespasser could only be passed by a regular civil court in a suit brought under the provisions of CPC and It could not be passed by a Judge of small Causes Court before whom a suit for eviction as a special forum was maintainable u/s 28 of the Act vide the page 1855 of the report.

Then about the question of law. The final court of fact has held that the petitioner was not a benamdar of his deceased father. The question of benaml is one of tact. After following the observation of the Judicial Committee, it was laid down In the case of Meenakshi Mills Vs Commissioner of Incomes Tex in 1956 SCA 1139 at page 1165, that the finding on the question of benaml is one of fact The observetions made by Sarkaria, J. in the case of Joylal Podder v Bibi (sic) a in AlR 1974 SC 171 may also be referred to

In the case of Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others, it has been stated that High Court cannot interfere with the finding of fact in revision. It will appear from the later case of Shri M.L. Sethi Vs. Shri R.P. Kapur, that after following decisions in LR 11 (A 237, 44 IA 261 and 76 IA 67 it has been stated that an erroneous decision on a question of law, which has no relation with question of jurisdiction of court, cannot be corrected by High Court u/s 115 of the Code of Civil Procedure. The same observations have made in the Supreme Court cases in AIR 1975 1297 (SC)

Since the allegation is that there was an erroneous decision only on a duestion of law, this finding regarding benami cannot be interfered with in revision There is no jurisdictional error or material irregularity. Hence the submissions made on behalf of the petitioner cannot be accepted. The Rule is discharged without any order as to costs.