Tapasi Rana vs Atindra Nath Sen & Ors.

Md. Shabbar Rashidi, J.:-

The instant application under Article 227 of the Constitution of India is directed against a judgment and order dated February 28, 2011 passed in Misc. Appeal No. 130 of 2009.

By the impugned judgment and order, the learned first appellate court dismissed Misc. Appeal No. 130 of 2009 affirming the judgment and order dated January 13, 2009 passed by the learned trial court in J. Misc Case No. 6 of 1999. By such order, the learned trial court had allowed J. Misc Case No. 6 of 1999 holding the petitioner no. 1 therein, to entitled to pre-empt 0.0254 acres in plot No. 1398 and 0.0060 acres in plot No. 1402, which was affirmed by the impugned judgment and order by the learned first appellate court.

At the time of hearing, learned senior advocate for the petitioner submitted that there are two sets of petitioners having separate and independent rights. Opposite party no. 1 series have their right independent of the rights of opposite party no. 2 to 12. It was submitted that there are two sets of right holders who had filed J. Misc. Case No. 6 of 1999 jointly. They jointly deposited the consideration money together with statutory compensation. According to learned senior advocate for the petitioner, such a joint petition by two sets of separate right holders is not permissible in terms of the provisions of Section 8 and 9 of the West Bengal Land Reforms Act, 1955.

Learned senior advocate for the petitioner further contended that the accused here in applying for the pre-emption of the plot sold to the petitioner, however, the learned trial court as well and the learned first appellate court allowed partial pre-emption in respect of specific plot nos. 1398 and 1402. The other plots were which were sold to the petitioner were not allowed to be pre-empted and such prayer was rejected. Learned senior advocate for the petitioner submitted that the pre-emptor only pre-empts the sale deed and does not re-purchase, therefore, a partial pre-emption is not permissible. According to learned senior advocate, there can only be complaint of pre-emption of a particular deed and not a part thereof. In support his contention, learned senior advocate for the petitioner relied upon 1963 SCC OnLine SC 265 (Bhagwati Prasad Sah and Others v. Bhagwati Prasad Sah and Anther) and (2019) 19 SCC 767 (Barasat Eye Hospital and Others v. Koustabh Mondal).

Learned senior advocate for the petitioner further submitted that the provisions of Section 8 of West Bengal Land Reforms Act, 1955 can be pressed into service when a property is sold to persons other than a co-sharer. When there was no co-sharer, such provisions cannot be applied. Learned senior advocate for the petitioner further submitted that pre-emption by adjoining owner is not maintainable in absence of a co-sharer. To such proposition, the learned senior advocate relied upon 2013 SCC OnLine Cal 22821 (Subal Mondal v. Gopal Chandra Mondal) and an unreported order passed by a Coordinate Bench of this Court in C.O. 62 of 2018 on January 16, 2018 (Monoranjan Senapati v. Chabi Karan & Anr.).

The learned senior advocate for the petitioner also submitted that according the provisions of the Section 8 of West Bengal Land Reforms Act, 1955, a right of pre-emption is available to a person having common boundary with the plot in question. In the present case, the land sold to the petitioner and that belonging to opposite party no. 1 is separated by a pathway. Therefore, right of pre-emption is not available to such petitioner in the ground of vicinage. Petitioner no.1 cannot be said to be an adjoining land owner within the meaning of Section 8 and 9 of West Bengal Land Reforms Act, 1955. The learned trial court as well as the learned first appellate court erred in holding that petitioner no. 1 was adjoining land owner of the property sold to the petitioner.

Per contra, learned advocate for the opposite parties submitted that since several plots were sold out by a single transaction and a single deed, a joint application for pre-emption was filed on behalf of the opposite parties. It was further contended that there is no bar in law in filing of a joint application for pre-emption. The learned trial judge as well as learned first appellate judge rightly allowed the prayer for pre-emption.

Learned advocate for the opposite parties submitted that usually partial pre-emption is not tenable in respect of a transaction on the ground of co-sharer, however, when several plots have been transferred by the single deed, a prayer for pre-emption can be allowed in favour of a pre-emptor having longest common boundary. Moreover, a single deposit by several claimants and a common application for pre-emption is permissible. In support of his contention, learned advocate for the opposite parties relied upon 1986 (1) CLJ 170 (Sadhan Chandra Samanta & Others v. Jaladhi Bala Dasi & Anr.).

The learned advocate for the opposite parties further submitted that for maintaining an application for pre-emption, the pre-emptor is not required to be full owner of the adjoining plot. The opposite party no. 1 owned a land which had the longest common boundary with the plot sought to be pre-empted. To such proposition, learned advocate for the opposite parties cited the authority of 2000 (1) CHN 505 (Smt. Bula Kundu v. Sri Nirmal Kumar Kundu and Anr.).

It was further contended by the learned advocate for the opposite parties that the application for pre-emption of the petitioner was allowed by the learned trial court upon consideration of evidence adduced on behalf of the parties. Subsequently, in an appeal, the findings of learned trial court were affirmed by the learned first appellate court on appreciation of the evidence and materials on record. Such concurrent findings on facts of learned trial court as well as learned appellate court should not be interfered with in the present supervisory jurisdiction by this court. In support of such contention, learned advocate for the opposite parties placed reliance upon 2016 (3) CHN (CAL) 61 (Arindam Joardar v. Tarun Raha) and (2009) 6 SCC 194 (Sneh Gupta v. Devi Sarup and Others).

The learned advocate for the opposite parties also submitted that a right of pre-emption is available on a bastu land. Learned advocate relied upon the authority of 2016 (2) CHN (Cal) 489 (Sanjay Halder v. Budhan Rajak). Learned advocate for the opposite parties also submitted that when several plots are sold to a stranger through a single deed, a partial pre-emption by the adjoining land owner is permissible in law. In support of such contention, learned advocate for the opposite party relied upon 1977 (2) CLJ 480 (Satish Chandra Kuila v. Kalipada Maity & Ors.).

Relying upon the authority of 2007 (1) CHN 50 (Bahastulla Sk. V. Abdul Gafur Sk.), learned advocate for the opposite parties contended that a land owner, even without having common boundary can get an order of pre-emption. What is required for a successful pre-emption is that the pre-emptor owns land which is adjoining to the land sought to be pre-empted.

‘Kha’ Schedule properties previously belonged to one Kedar Nath Singha. He had three sons namely Dijendranath, Dipendranath and Devendranath. After the demise of Kedar Nath Singha, Kha Schedule property came to be allotted in the share of Dijendranath by dint of a deed of settlement. The said Dijendranath was survived by his seven sons and four daughters. The aforesaid sons and daughters of Dijendranath sold specifically demarcated portions of plot no. 1398, 1397 and 1403 by registered sale deed dated October 20, 1998 in favour of the petitioners herein.

Opposite party no. 1 sought to pre-emption on the ground of vicinage being owner of plot no. 1401 and 2 decimals in plot no. 1402. Opposite party no. 2 to 12 were the owners of plot no. 1404 and as such sought for pre-emption of the lands sold to the petitioners, on the ground of being the adjoining land owners.

Accordingly, the opposite parties filed J. Misc. Case No. 6 of 1999 jointly. It was specifically stated in such application for pre-emption that the application was filed jointly and the consideration money together with the statutory 10% thereof, may be treated as deposit on behalf of the opposite party whom the learned court considered entitled for pre-emption upon disposal of pre-emption Case. It was also prayed in the alternative that, if the application is allowed proportionately, in favour of the two sets of applicants, the deposit would be treated as proportionate deposit by both sets of applicants.

J. Misc. Case No. 6 of 1999 was taken up for consideration and on the basis of evidence adduced by the parties therein, the learned trial court allowed the Misc. Case in favour of opposite party no. 1, having the longest boundary with the lands sought to be pre-empted. In the judgment and order passed in J. Misc. Case No. 6 of 1999, the learned trial court came to conclusion that plot no. 1401 was the only plot which was adjacent to the plot nos. 1398 and 1402 and accordingly, the learned trial court held that opposite party no. 1 (petitioner no.1 in Misc. Case) was entitled to pre-empt. Such finding of the learned trial court was upheld by the learned appellate court in Misc. Appeal No. 130 of 2009, by the impugned judgment and order.

The instant proceeding under Article 227 of the Constitution of India has been filed at the behest of the pre-emptee (appellant in Misc. Appeal No. 130 of 2009) challenging the legality and propriety of the impugned judgment and order passed in Misc. Appeal No. 130 of 2009. The ground of attack taken by the petitioners are based mainly on two grounds, namely

The right of pre-emption flows from Section 8 and 9 of West Bengal Land Reforms Act, 1955. It would be apposite to set out the relevant provisions of law for proper appreciation of the disputes involved in the present proceeding

Section 8 of the Act of 1955 clearly lays down that a right of pre-emption accrues, if a portion or share of a holding of raiyat is transferred to any person other than a co-sharer in the holding. Such right devolves upon a (i) ‘Bargadar’ or (ii) a co-sharer riyat or (iii) raiyat possessing land adjoining such holding in such order of preference. It is not in dispute that the lands in question were sold to the petitioner who is not co-sharer in the holding. In the present case, no Bargadar or co-sharer in the holding came up claiming right of pre-emption. The two sets of raiyats claiming to possess land adjoining such holding which was sold out.

The third provisio of Section 8 of the Act of 1955 contemplates a situation that as amongst raiyats possessing lands adjoining such holding, preference shall be given to the raiyat having the longest common boundary with the land transferred. The judgment and order passed by the learned trial court as the impugned judgment and order has clearly held that opposite party no. 1 was the raiyats possessing lands adjoining the sold lands and therefore allowed the application for pre-emption.

Section 9 (1) of the Act of 1955 provides for the claim of right of pre-emption by adjoining raiyat upon deposit of the consideration money together with a further sum of 10 per cent, of that amount. The provision also provides that upon making an order allowing the application for pre-emption, the concerned court shall make an order that the amount of the consideration money together with such other sums as are proved to have been paid by the transferee or the person interested plus ten per cent of the consideration money be paid to the transferee. Therefore, a transferee is entitled to the consideration money, other sums as directed by the court together with ten per cent thereof and nothing more.

Moreover, Section 9 (3) of West Bengal Land Reforms Act, 1955 also provides that in making an order under sub-section (1) in favour of more than one co-sharer raiyat or raiyats holding adjoining land, the Munsif may apportion the portion or share of the holding in such manner and on such terms as he deems equitable. In the provision of the Act of 1955, there appears no specific bar that a joint application by the raiyats holding land adjoining the transferred land and claiming pre-emption rights therein, cannot be filed. The only thing that is to be considered by the court while deciding an application for pre-emption is whether the consideration money together with ten per cent thereof has been deposited.

In Sadhan Chandra Samanta (supra), it was held that,

Therefore, in consideration of the afore gone discussions, provisions of Section 8 and 9 of West Bengal Land Reforms Act, 1955 as well as the ratio of Sadhan Chandra Samanta (supra), I am of the opinion that there is nothing wrong if several claimants join hands and file a joint petition for pre-emption supported by a single deposit. The impugned judgment and order does not call for any interference on such score.

No case has been made out by the petitioner that either set of the applicant was not the full owner of the lands adjoining the transferred lands. The case of Bula Kundu (supra) notes that even a co-sharer of the land adjoining the transferred land can maintain an application for pre-emption.

So far as applicability of Section 8 and 9 of the Act of 1955 in respect of homestead (BASTU) land, in Sanjay Halda (supra), a Coordinate Bench held to the following,

As to the point no (ii) with regard to partial pre-emption, it is evident from the words and phrases used in Section 8 of West Bengal Land Reforms Act, 1955, that a right of pre-emption can be claimed by a Bargadar, or a co-sharer or a person owning land adjacent to the transferred land. If several plots are transferred by a single deed and a person has his land adjacent to one or few of such transferred land, in such contingency, the claim of pre-emption is bound to fail as the person claiming such right does not own lands adjacent to all the plots involved in the transaction. If such proposition is appreciated, in every sale, the vendors may tend to include stray properties, in order to negate the right of pre-emption. The issue came up for consideration before a Division Bench of this Court in Satish Chandra Kuila (supra). The Hon’ble Division Bench decided the issue to following terms,

Bhagwati Prasad Sah (supra) is a judgment rendered where right of pre-emption was claimed by a co-sharer. The Hon’ble Supreme Court was of the view that

In the case at hand, the claim of pre-emption has been made on the basis of adjoining land owner. The principle of “whole bargain” and “reciprocity” as noted in Bhagwati Prasad Sah (supra) was in respect of the co-sharer and not in respect of the contiguous adjacent land owners.

Moreover, in the case of Bhatulla Sk. (supra), it was noted that,

(Emphasis supplied)

The original application for pre-emption being J. Misc Case No. 6 of 1999 was filed by the opposite parties jointly under the provisions of Sections 8 and 9 of the West Bengal Land Reforms Act, 1955 as well as alternatively under Section 24 of the Non-Agricultural Tenancy Act. It was contended that the provisions of Non-Agricultural Tenancy Act were not applicable in the facts and circumstances of the case and, as such, the application for pre-emption so filed on behalf of the petitioner ought to have been rejected. In Sk. Abdul Gaffar (supra), a Division Bench of this Court was of the view that:-

Therefore, in view of the ratio laid down in Sk. Abdul Gaffar (supra), the prayer of the opposite parties and the findings of the learned First Appellate Court in the impugned judgment and order do not call any interference.

So far as the contours of the present proceeding and jurisdiction of this Court under Article 227 of the Constitution is concerned, in the case of Sneh Gupta (supra), it was noted that

Similarly, a Co-ordinate Bench of this Court in the case of Arindam Joardar (supra) refused to interfere with the concurrent finding of the facts arrived at by the Court of law.

Subal Mondal (supra) was also rendered in a case where the right of pre-emption was claimed by a co-sharer. In such case, it was held by a Co-ordinate Bench of this Court that

Monoranjan Senapati (supra) was also rendered in the case of a claim of pre-emption on the basis of co-ownership. In such case, the previous owner of the land had sold out specifically demarcated portion of her property in favour of two persons. A Co-ordinate Bench of this Court noted that if the subsequent purchaser could not claim to be a co-sharer of the original owner, the purchaser from the subsequent purchaser could not have elevated his status than that of his vendor.

The original application for pre-emption was filed by the opposite parties jointly upon deposit of the consideration money together with 10% thereof. Therefore, the ratio laid down in Barasat Eye Hospital (supra) is not attracted in the facts and circumstances of the present case.

On the basis of the discussions made hereinbefore, I find no merit in the present proceeding under Article 227 of the Constitution of India. There appears nothing to interfere with the findings of the learned First Appellate Court in the impugned judgment and decree. The same is hereby affirmed.

With the aforesaid observations, C.O. 2164 of 2011 is, accordingly, disposed of. Connected application(s), if any, shall also stand disposed of.

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