PREMAMOY JANA Vs. MOHAN CH. JANA AND ANR.

JUDGEMENT

(1.) 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 in 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 under section 8 of the West Bengal Land Reforms Act in the ground that he was a co sharer Then he elected to proceed under section 24 of the 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-emptor's lather, who conducted the entire litigation end in that case the benami transaction was established.

(2.) 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.

(3.) 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 in 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 appellate court is Incorrect, such question of fact can be permitted to be raised in revision.