Kali Shankar Ganguly vs Lalit Kumar Agarwala & Ors-20/04/2017

PRE-EMPTTION: Therefore, in view of the result of the examination of the entire materials on record since the L.C.R. is made available before this Court, it is held that in the decision making process both the courts respectively in Misc. Appeal and Misc. Case did not commit any jurisdictional error, illegality or perversity in declining the right of pre-emption sought for by the petitioner on the ground of adjoining land owner, and in such loosely conducted game the petitioner cannot expect any success, when the law in the field demands its requirements in some other way, which are absent with the petitioner.

ACTS: Section 8 of the West Bengal Land Reforms Act, 1955

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION

(Appellate Side)

C.O. No. 3999 of 2016

DATE: 20 April 2017

Kali Shankar Ganguly vs Lalit Kumar Agarwala & Ors

For the Petitioner: Mr. Supravat Bhattacharjee, Mr. Subal Chandra Sarkar

For the Opposite Parties: None appeared.

PRESENT: The Hon’ble Justice Mir Dara Sheko.

Heard on: 04.04.2017

Judgment on : 20.04.2017

ORDER

Mir Dara Sheko, J.

1. The C.O. being 3999 of 2016 on the basis of application under Article 227 of the Constitution of India has been directed assailing the judgment dated 7.5.2016 delivered by Learned Additional District Judge, 2nd Court Malda in Misc. Appeal No. 15 of 2011 affirming the order dated 31st January, 2011 passed by learned Civil Judge (Junior Division) 2nd Court in Misc. Case No. 03 of 2006 (pre-emption) under Section 8 of the West Bengal Land Reforms Act, 1955 by which the prayer of pre-emption was refused, since the petitioner was not held as a raiyat within the meaning of Section 2(10) of the Act the petitioner had no right or locus standi to exercise the right of pre-emption.

2. Though despite service of notice none appears to represent the opposite parties but for proper adjudication of the case the L.C.R was called for and the record of the Misc. Appeal as well as the record of the Misc. Case (for pre-emption) under reference have been made available before this Court.

3. Kali Shankar as the applicant/appellant/petitioner, who will be called on hereafter as the petitioner, filed the pre-emption case on behalf of Chanchal Satsangha, as its Secretary, to pre-empt 9 decimals out of 19 decimals of plot no. 672 of Khatian No. 174 of Mouza Chanchal on the ground of adjoining land owner.

4. In disclosing the alleged right of the petitioner as adjoining land owner the fact has been depicted as follows:-

(a) One Moni Kanta Sharma @ Mohini Mohan Sharma, was the original owner of 7 decimals of plot No. 673 which situates adjacent to plot no. 672. Said Mohini Mohan Sharma sold 5 decimals out of 7 decimals by a registered deed of sale on 7th January, 1957 to one Keshab Chandra Karmakar. Said Keshab Chandra Karmakar sold aforesaid 5 decimals by a registered deed of sale dated 27th February, 1959 to Purna Chandra Swarnakar and Basanta Swarnakar. Thereafter Basnata Swarankar sold his ½ share i.e., 2½ decimals out of 5 decimals of said plot no. 673 to Purna Chandra Swarnakar. Accordingly Purna Chandra Swarnakar having become owner of 5 decimal of plot no. 673 gifted 4 decimals on 18.08.1986 to Satsangha Prodhan Acharyadev Shri Shri Amarendra Nath Chakraborty, S/o. Shri Shri Thakur Anukul Chandra Chakraborty. Further Kalipada Sharma, S/o. Mohini Mohan Sharma gifted rest 2 decimals out of 7 decimals of plot no. 673 of Chanchal Satsangha Mandir on 11th October, 2002.

(b)It is asserted that though the petitioner thus became owner of 7 decimals of plot no. 673 and has set up Santsangha Mandir but Harisankar Das, Jaynarayan Das @ Ashok and Kartik Kumar Das having sold out 9 decimals out of 19 decimals of adjacent Doba plot no. 672 without notice to the petitioner in favour of the opposite party nos. 1-4 by a registered sale-deed dated 9th March, 1998 which was entered in the volume in the Registry Office on 19.09.2005, the petitioner as non-notified raiyat has filed the pre-emption case on 17th January, 2006 on the ground of adjoining land owner by making statutory deposit along with interest and also depositing the copy of impugned deed on the following date i.e, on 19th January, 2006.

5. Mr. Bhattacharjee submits that the petitioner has suffered by the judgment and order of both the Sub-ordinate Courts on the ground that the petitioner has no locus standi to file the pre-emption case. He argued that the pre-emption case ought to have been disposed of on merit by adjudicating as to whether the petitioner was adjoining land owner or not instead of dismissing the claim of pre-emption on technical ground.

6.Mr. Bhattacharjee, relied on the following cases.

(i) Smt. Bula Kundu Vs. Sri Nirmal Kumar Kundu & Anr. reported in 2000 CWN Page 776.
(ii) Narendra Kumar Singh & Anr. Vs. Smt. Gursharan Kaur & Ors. reported in (2016)2 WBLR (Cal) 314.
(iii) Nasiruddin Sk. @ Nasiruddin Hafij & Ors. Mahasin Ali Khan reported in (2016)2 WBLR (Cal) 213.

7. Mr.Bhattacharjee taking the aforesaid cases as capital concludes his argument by submitting that the petitioner being adjoining land owner having ownership upon some portion of plot no. 673 and since it would not be necessary that the petitioner ought to have been sole owner of the entire plot no. 673 the petitioner is competent to exercise the right of pre-emption to pre-empt the case property. It is submitted that by the impugned deed dated 9th March, 1998, whether fraction of land or entire portion of land was transferred it would be immaterial in view of the literal meaning of Section 8(1) of the W.B.L.R Act. Submitted, if the petitioner would have been able to prove his adjacent ownership to the plot no. 672 then the prayer of pre-emption ought not to be refused. Upon such submission the judgment and order impugned have been challenged and has sought to be set aside allowing the pre-emption.

8. On examining the lower Court records this Court finds that save and except one meeting book where some resolutions have been adopted at the instance of the President of Chanchal Satsangha Bihar from 30.03.2003to 25.03.2007 no other document has been exhibited in the pre-emption case on the side of the petitioner, even, the impugned deed, the property covered by which sought to be pre-empted, has been left unmarked. It appears from the exhibit list that the aforesaid meeting book only was marked as Ext. 1 on the side of the petitioner, and all the four deeds referred in the pre-emption application were kept as W, X, Y, Z for future identification, meaning thereby, there was no persuasion to get either of those documents including the impugned needed exhibited before the learned Trial Court in accordance with law.

9. Curiously enough, from the judgment of the Misc. Appeal under challenge it appears that at late stage during hearing of the appeal one application under Order 41 Rule 27 of the Code of Civil Procedure was filed for getting the certified copies marked as exhibit and said application dated 17.3.2016 since was not in proper form was rejected, against which no further step was taken by the petitioner.

10. Be that as it may, in the present nature of proceeding virtually the relevant documents may be required, which are as follows:

(a) any document(s) showing right to pre-empt, (b) document which is sought to be pre-empted and (c) R.O.R, mouza map etc. as would be required depending upon facts and circumstances of the case.

11. Though the mouza map has not been filed by the petitioner but since in oral evidence it was admitted and let me take it as granted that the plot no. 673 and the impugned plot no. 672 are adjoining to each other. From Ext.-D it reveals that the disputed plot no. 672 having its total area of 19 acres, out of which .03 acres were converted from doba to bastu land on the basis of prayer of Dipti Das sometimes in the year 2000 and said .03 acres were recorded in the name of said Dipti Das in L.R. Khatian no.1482 and the nature of said land was described also as bastu.

12. However, though property covered in the impugned deed dated 9th March, 1998 has been sought to be pre-empted but the deed(s) on the basis of which the petitioner had tried to establish their right as contiguous land owner since has not been exhibited or did not pursue to be exhibited, the court rightly did not take cognizance of having any right with the petitioner to pre-empt the plot in question viz. plot no. 672.

13. One fact was asserted by the petitioner that in the impugned deed dated 18.8.1986 since by mistake there was allegedly an error in the description of the name of recipient there was subsequent deed of rectification. Any such registered deed of rectification was also not exhibited.

14. On examining the meeting took under reference this Court finds no indication towards vesting authorization upon the petitioner Kali Shankar Ganguly to proceed with any litigation as the secretary and on behalf of Chachal Satsangha. There is no deed or document showing adjoining ownership of Chanchal Satsangha itself. Such Satsangha may be taken as granted as the religious institution to come within the definition of Section 2(10) of the West Bengal Land Reforms Act. But there is no substantive evidence supported by document to show adjoining ownership either of Sri Kali Shankar Ganguly, or of the Secretary of Chanchal Satsangha to establish the alleged right of pre-emption on the ground of vicinage for which Sri Kali Shankar Ganguly has filed and has been pursuing the case of pre-emption.

15. Therefore, in view of the result of the examination of the entire materials on record since the L.C.R. is made available before this Court, it is held that in the decision making process both the courts respectively in Misc. Appeal and Misc. Case did not commit any jurisdictional error, illegality or perversity in declining the right of pre-emption sought for by the petitioner on the ground of adjoining land owner, and in such loosely conducted game the petitioner cannot expect any success, when the law in the field demands its requirements in some other way, which are absent with the petitioner. In view of having no proof of locus standi of the petitioner to exercise the right of pre-emption, either of the cases cited by Mr. Bhattacharjee is of no assistance to the petitioner’s case.

16. Therefore, the judgment dated 7.5.2016 passed by learned Additional District Judge, 2nd Court Malda in Misc. Appeal no. 15 of 2011 affirming the order dated 31st January, 2011 passed by learned Civil Judge (Junior Division) 2nd Court Malda in Misc. Case 3 of 2006 (Pre-emption) is upheld and the revisional application stands dismissed on merit, of course, at the instance of learned counsel for the petitioner and in absence of the other side.

17. No order as to costs.

18. Urgent certified photostat copy be supplied on receipt of appropriate application with requisite fees.

19. Let the Lower Court records be sent down at once accompanying a copy of judgment of this Court.

(MIR DARA SHEKO, J.)