ABU TAHER SK. Vs. MOSLEM SK.

JUDGEMENT

(1.) These two Rules arise out of an appellate order passed by the learned Munsif of Katwa in effect rejecting the two applications for preemption filed by the petitioner in these Rules. The petitioner's case is that one Jinnat Bibi transferred by was of sale on May 3, 1965, by two Kobalas her interest in the properties mentioned therein to the opposite party. In respect of the said properties the petitioner was a co-sharer with Jinnat Bibi and the alleged purchaser had never any interest in the holding, a portion or shares whereof was sold to him. The petitioner averred that he had no earlier knowledge of the sales and he came to know on April 24, 1968 of the said transactions after taking certified copies of the documents. Accordingly the petitioner filed two applications before the S. D. O., Katwa both on July 18, 1968 claiming preemption of the lands sold by two Kobalas both dated May 3, 1968, under section 8(1) of the West Bengal Land Reforms Act, 1955. In one of the applications giving rise to Case No. Mis. LR 24 of 1968, a sum of Rs. 900.00with 10% compensation in all Rs. 990.00 was deposited as the consideration for preemption on the basis of the consideration for one of the alleged Kobalas while in the other application giving rise to Case No. Mis. LR 25 of 1965, a sum of Rs. 2,500.00 with 10% compensation, in all Rs. 2,750.00 was deposited for the same purpose on the basis of consideration for the other Kobala.

(2.) The said applications were opposed by the opposite party who filed written objections to the said applications, contending, inter alia, that he had been in possession of the properties in dispute as donees under two registered documents of heba-bil-ewaz and provisions of section 8(1) of the said Act were not applicable in cases of heba-bil-ewaz which are transfers by exchanges. It was further alleged that no actual consideration passed between the parties and in any event the applications are barred by limitation.

(3.) Tbe learned Sub-divisional Officer was of the opinion following the observations in Mulla's 'Principle of Mohamedau Law' that heba-bil-ewaz was in reality a sale and two requisite conditions of such transfer being actual payment of consideration by the donee and a bona fide intention on part of the donor to divert himself in praesenti. About the latter condition there was little doubt but about the passing of actual consideration the learned Officer was in doubt and accordingly he feet that the petitioner should be given an opportunity to prove actual payment of consideration by the donee. Accordingly by order dated, May 25, 1969, he fixed the cases for evidence on July 8, 1969.