Sadhana Bala Das Vs Niyoti Sen

Subrata Talukdar, J.@mdashIn this application under Article 227 of the Constitution of India the order dated 17th April, 2010 passed in Misc. (Pre-emption) Appeal No. 5 of 2000 passed by the Ld. Additional District Court, Contai, Paschim Medinipur allowing the appeal and thereby reversing the judgment and order dated 26th June, 2010 passed by the Ld. Civil Court (Junior Division) at Contai dismissing Misc. (Preemption) Case No. 60 of 1991 is under challenge.

2. Appearing for the petitioner/pre-emptee Shri Hiranmoy Bhattacharya, Ld. Counsel has argued as follows:--

"a) That the preemption suit plot is numbered as 1706 with a total measurement of 83 decimals. The subject matter of preemption is 33 decimals and the owner of the suit plot is one Sudhangshu.

b) The said two plots of land under dispute were transferred by way of two registered deeds. The present Opposite Party (for short OP) pre-emptor sought pre-emption on the ground of being an adjoining owner and not as a co-sharer. According to Sri Bhattacharya, a co-sharer will have interest only if an undemarcated area of land is sold. Since the original owner sold demarcated portions of land, no preemption can be claimed on the basis of co-sharership.

c) It is the further contention of Shri Bhattacharya that since specific portions of land have been transferred, the present OP cannot have any undemarcated interest in the land. Shri Bhattacharya contends that the pre-emptor cannot be a co-sharer in the suit land.

d) Drawing the attention of this Court to the West Bengal Land Reforms Act, 1955 (for short W.B.L.R. Act), Shri Bhattacharya submits that Section 14 of the W.B.L.R. Act does not apply in the facts and circumstances of this case. Drawing the attention of this Court to the definition of co-sharer as appearing at Section 2(6) of the W.B.L.R. Act, Sri Bhattacharya points out that there can be no co-sharership claimed in respect of the suit plot because demarcated portions have been sold out by the said Sudhangshu. According to Sri Bhattacharya, no right of preemption accrues when the entire plot is sold out. He submits that the Ld. Appellate Court failed to arrive at any such finding while passing the order impugned dated 17th April, 2010.

e) In support of his arguments Sri Bhattacharya relies upon Labanya Bala Debi Vs. Sm. Parul Bala Debi and Others, to make the point that in respect of sale of a demarcated land there can be no claim to preemption on the ground of co-sharership. Ld. Counsel also relies upon Amal Kumar Giri and Others Vs. Nani Gopal Paira and Others, ."

3. Per contra, Sri P.B. Sahoo, Ld. Counsel appearing for the OP/pre-emptor has argued as follows:--

"i) That the present petitioner is the subsequent transferee of the suit property. According to Sri Sahoo, the present petitioner has no locus to maintain the present application. Shri Sahoo points out that the petitioner/subsequent transferee cannot be an aggrieved person and if any person is aggrieved then he is the preemptee alone. However, the preemptee has not filed any application challenging the order of the learned Appellate Court dated 17th April, 2010 and hence the present application by the subsequent transferee is not maintainable.

ii) In support of his above submissions Sri Sahoo relies upon the decision reported in Chokalingaswami Idol thr. R.N. Pillai Vs. Gnanapragasam (Dead) by LRs., . Taking this Court to the facts of that case Sri Sahoo points out that since the State did not prefer any appeal, the appeal filed by the private defendant was held to be not maintainable.

iii) Ld. Counsel further asserts that the right of the present petitioner/subsequent transferee cannot have any basis without the claim of the subsequent transferee being conclusively established before the appropriate forum. However, in the facts of the present case the original preemptee has neither contested before the Ld. Appellate Court and nor challenged the said order before this Court. In such circumstances the claim of the subsequent transferee cannot be held to be maintainable.

iv) In support of his abovenoted submission Sri Sahoo relies upon Section 9(2) of the W.B.L.R. Act. He argues that in terms of Section 9(2) of the W.B.L.R. Act the right of the subsequent transferee has been made dependent on the right of the original preemptee. In the facts of the present case the stand of the preemptee stood demolished and therefore no further right can accrue in favour of the subsequent transferee.

v) In support of his abovenote submission Shri Sahoo relies upon the following decisions:-- Tarapada Karati Vs. Sudhamoy Dolui and Others--> ; Nishikanta Das Vs. Jnanendra Nath Mondal and Others, ; Santosh Sardar and another Vs. Surendranath Karmakar, ; Chokalingaswami Idol thr. R.N. Pillai Vs. Gnanapragasam (Dead) by LRs., ; (1985) 2 CHN 232 (para 7) (Basanti Bala Sarkar v. Ramkrishna Mondal and Ors.) and (1991) 1 CHN 11 (paras 7 and 9) (Brajendra nath Patra v. Asis Kumar Patra and Ors.).

vi) Sri Sahoo makes the additional point that there is no finding by the Ld. Appellate Court regarding transfer of the entire plot of land."

4. By way of reply Sri Bhattacharya has argued that the decision reported in Chokalingaswami Idol thr. R.N. Pillai Vs. Gnanapragasam (Dead) by LRs., is distinguishable on facts. Sri Bhattacharya submits that the preemptor had impleaded both the actual preemptee and the subsequent transferee in the preemption proceeding.

5. Sri Bhattacharya draws the attention of this Court to Section 10 of the W.B.L.R. Act. He submits that under the provisions of Section 10 the rights of the subsequent transferee stand protected and the subsequent transferee is also entitled to get the preemption money. In this connection he relies upon the decision reported in (1991) 1 CHN 11 (Brajendra nath Patra v. Asis Kumar Patra and Ors.). He also relies upon the decision reported in A. Nawab John and Others Vs. V.N. Subramaniyam, to make the point that even a subsequent transferee must be considered to have stepped into the shoes of the actual preemptee. Shri Bhattacharya forcefully submits that having impleaded the subsequent transferee in the original Misc. Preemption Case, the OP/preemptor cannot at this stage be allowed to resile from his stand.

6. By the order of the Ld. Trial Court the claim of the preemptor that she was possessing land as an adjoining raiyat was not accepted. The Ld. Trial Court was of the opinion that it is evident from the records that one Gunadhar purchased some land and the OP/preemptor is the daughter of the said Gunadhar. Since there is no evidence that there was any partition between the co-sharers and the share of Gunadhar stood confirmed, OP/preemptor cannot claim to be the adjoining raiyat.

7. Having heard the parties and considering the materials on record this Court is required to notice the facts on the ground qua the law applicable.

8. Admittedly, Sudhangshu Sekhar Mondal became the owner of dag No. 1706 measuring in all 83 decimals. The said Sudhangshu Sekhar Mondal sold separate demarcated portions of dag No. 1706 in favour of different individuals, including the present OP-preemptor. He also sold a portion of the adjoining dag No. 1766 in favour of the present OP-preemptor. Out of the remaining portion of land left with him in dag No. 1706, Sudhangshu Sekhar Mondal sold a portion thereto in favour of one, Hrishikesh Samanta, who then transferred his interest in favour of the present petitioner-preemptee. The OP then claimed preemption in respect of the land in dag No. 1706 transferred to the present petitioner. The Ld. Trial Court noticed that preemption has been claimed by the preemptor on the ground of being the adjoining raiyat or, in other words, on the ground of vicinage.

9. It is settled law that claims to preemption on the ground of vicinage can succeed only if the preemptor-claimant can show by positive evidence that he is the exclusive owner of the property. Reference may be made in this regard to the decision reported in Amal Kumar Giri and Others Vs. Nani Gopal Paira and Others, .

10. It is also trite law that when the entire interest of the raiyat in the plot of land in question was sold by the raiyat in favour of the preemptee, no preemption lies. For this proposition of law reference may be made to the judgment reported in Bankim Ch. Banerjee Vs. Chinmoyee Banerjee, .

11. Noticing the transfer of land by Sudhangshu Sekhar Mondal, the original vendor, it is found that the OP-preemptor is not the exclusive owner of the adjoining plot, being plot No. 1766. The said adjoining plot has not been partitioned and the OP-preemptor is a co-sharer to the same. Section 8 of the 1955 Act Third Proviso, inter alia provides that amongst raiyats possessing adjoining plots of land preference shall be given to the raiyat having the longest common boundary with the land transferred.

12. It therefore stands to reason that only in the event the adjoining plot is found to be partitioned among the co-sharers, no individual can claim to possess the adjoining land having longest common boundary. No finding has been arrived at by the Ld. Appellate Court that the OP-preemptor possesses the adjoining land having the longest common boundary to attract the application of the decision in Smt. Bula Kundu Vs. Sri Nirmal Kumar Kundu and Another, .

13. With further regard to the above it is noticed that the Ld. Trial Court had, inter alia, held that Sudhangshu Sekhar Mondal sold 26 decimals of land from the suit property along with some other landed properties of plot No. 1766 in favour of the OP-preemptor. The Ld. Trial Court further held that "as appears plot No. 1766 belongs to Sudhangshu Sekhar Mondal and Ananta Mondal". Similarly different portions of plot No. 1706 have been transferred by Sudhangshu Sekhar Mondal in favour of different purchasers including the present preemptor. Section 8 of the W.B.L.R. 1955 Act provides that only if a portion or share of a plot of land of a raiyat is transferred to any person other than a co-sharer of a raiyat, the provisions of Section 8 shall apply. It is noticed that since the entire plot measuring 33 decimals and not a portion thereof has been transferred by Sudhangshu Sekhar Mondal, it cannot be stated that either a portion or share of plot of land has been transferred. It is trite law that if the entire holding is transferred the application for preemption is not maintainable.

14. Answering the point raised by Sri Sahoo that a subsequent transferee does not have the right to oppose preemption, this Court notices that law has been settled to effect that right of preemption attaches to a property. The right runs with the land and can be established against the owner of the land for the time being. Reference may be made in this regard to Shri Audh Behari Singh Vs. Gajadhar Jaipuria and Others, and 1985 (2) CHN 322 (Abani Kanta v. State of West Bengal).

15. In 1991 (1) CHN 11 (Brajendra nath Patra v. Ashim Kumar Patra) it has been held that all subsequent transfers of the land shall be subject to preemption. It has been also held in Sital Chandra Kolley and Another Vs. Heirs of Mihilal Kolley and Others, that all transactions creating a fiduciary interest in the land would attract the application of Section 9(2) of the 1955 Act and would cover the interest acquired by a subsequent transferee.

16. Section 9(2) of the 1955 Act, inter alia, prescribes that any person acquiring right, title and interest of the transferee in a plot of land by succession or otherwise, such acquisition shall be subject to the right conferred by Section 8 (1) of the 1955 Act. Similarly, Section 10 (a) of the 1955 Act, inter alia, provides that the right, title and interest of the raiyat and of the subsequent transferee or the person mentioned in Section 9(2) shall vest in the raiyat upon an order under Section 9 being passed.

17. Law has also been laid down in Amal Kumar Giri and Others Vs. Nani Gopal Paira and Others, that the claim to preemption on the ground of vicinage can succeed only if the preemptor can show by positive evidence that he is the exclusive owner of the property. It has been held that in the absence of partition of the property the claim to preemption on the ground of vicinage cannot be established.

18. This Court therefore finds that the petitioner being the subsequent transferee is a necessary party in the preemption proceedings since an order of preemption would not only destroy the title of the vendor of the subsequent transferee from the date of passing of the order of preemption but, will also destroy the title of the subsequent transferee.

19. It is also noticed that both the original preemptee and the subsequent transferee were made parties to preemption J Misc. Case No. 60 of 1991.

20. In the backdrop of the above discussion CO 2297 of 2010 stands allowed.

21. The order dated 17th April, 2010 passed in Misc. Appeal No. 05 of 2000 by the Ld. Additional District Court, Contai, Purba Medinipore stands set aside and the judgment and order dated 26th June, 2000 passed by the Ld. 1st Civil Court (Junior Division), Contai dismissing J Misc. Case No. 60 of 1991 stands restored.

22. There will be, however, no order as to costs.

23. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.