PARESH NATH MONDAL Vs. BIJAN BEHARI MONDAL

JUDGEMENT

(1.) These are the two revisional applications at the instance of one Paresh Nath Mondal who filed an application under Section 8 of the West Bengal Land Reforms Act against the opposite party being Misc. Case No. 40 of 1974 for pre-empting a sale by a co-sharer in favour of the opposite party. The opposite party in his turn instituted a counter proceeding under the same provision being Misc. Case No. 11 of 1975-The learned Munsif allowed the petition filed by the petitioner Paresh Nath Mondal but dismissed the counter petition filed by the opposite party by two separate orders both dated June 26, 1976. The opposite party preferred two appeals being Misc. Appeal No. 78 of 1076 (arising out of Misc. Case No, 40 of 1974) and Misc. Appeal No. 79 of 1976 (arising out of Misc. Case No. 11 of 1975). Both the appeals having been transferred by the learned "District Judge to the court of the learned Subordinate Judge, the learned Subordinate Judge by two independent orders both dated Sept. 4, 1976 allowed both the appeals and reversed the decision of the learned Munsif. Feeling aggrieved the petitioner Paresh Nath Mondat has moved this court with two revisional applications on which the above two Rules had been issued. Mr. De, learned Advocate appearing on behalf of the pre-emptee petitioner, has raised a short point that the appeals which lay to the learned District Judge would not have been lawfully transferred to the court of the learned Subordinate Judge since the learned Subordinate Judge had no jurisdiction to entertain or hear and dispose of the appeals. According to Mr. De, under Section 9 (6) of the West Bengal Land Reforms Act an appeal lies to the District Judge not as a Court but as a persona designata and hence he could not have transferred the appeal to the court of the learned Subordinate Judge for hearing. Mr. De has next contended that even if it be not held that the District Judge is a persona designate, yet the jurisdiction conferred being a special one, it was for him to exercise it and he cannot transfer the appeal to the court of the learned Subordinate Judge. Mr. pal, appearing on behalf of the pre-emptor opposite party, has contested both the points thus raised by Mr. De. According to Mr. Pal. Section 9 (6) has extended the jurisdiction of the principal civil court of the District to hear the appeals from orders of pre-emption made under Section 9 (1) read with Section 8 of the West Bengal Land Reforms Act and such appeals, as appeals from orders and decrees of a munsif, could be transferred for disposal to the court of the learned. Subordinate Judge; it could be so transferred, according to Mr. Pal, under either of the provisions of Section 22 of the Bengal, Agra and Assam Civil Courts Act. 1887 or 24 of the Civil P, C.

(2.) The points raised require careful consideration. It would be necessary first of all to refer to the statutory provisions providing for the right of appeal, its forum and the procedure for disposal of such an appeal. An application under Section 8 of the Land Reforms Act claiming pre-emption is to be disposed of by the learned Munsif in terms of Section 9 (1) of the Act Sub-section (6) of Section 9 provides "any person aggrieved by an order of the Munsif under this section may appeal to the District Judge having jurisdiction over the area in which the land is situated, within thirty days, from the date of such order and the District Judge shall send a copy of his order to the Munsif. The fees to be paid by the parties and the procedure to be followed by the District Judge shall be such as may be prescribed."

(3.) Rule 8 of the Rules framed under the Act prescribes the procedure for appeals and fees to be paid under Sub-section (6) of Section 9 and the said provision is set out hereunder: