KUSUM RANI BISWAS Vs. SANYASI BISWAS

JUDGEMENT

(1.) The opposite party No. 1 Sanyasi Biswas filed an application under Section 8 of the West Bengal Land Reforms Act for pre-emption on the ground that he was a contiguous owner of the disputed land which was transferred by opposite party No. 2, Tukubala Biswas, to the petitioner Kusum Rani Biswas. The learned Munsif dismissed the application on the ground that Sanyasi Biswas had failed to prove that he was a contiguous owner of the disputed portion sought to be pre-empted. The appeal preferred by Sanyasi Biswas was allowed by the learned Additional District Judge who came to the finding that appellant Sanyasi Biswas a raiyat and he was in possession of land adjoining the disputed holding out of which the disputed three plots were transferred. The petitioner Kusum Rani Biswas has challenged the said decision of the learned Additional District Judge in the present revisional application.

(2.) Mr. S.C. Mitter, learned Advocate for the petitioner, has submitted that the learned appellate Court failed to exercise jurisdiction as the court did not consider the entries in the R.S. records and the admission of P.W. 1, Sanyasi Biswas, that the land was non-agricultural. Mr. Mitter contends that as the land was non-agricultural the provisions of Section 8 of the Land Reforms Act were not applicable. In support of his contention Mr. Mitter relies on the case of Mishri Show v. B. N. G. Institution, (1978) 1 Cal LJ 532, Eyachhin Ali Naskar v. Gopal Gazi, (1979) 83 Cal WN 87, Kamaleswar Singha v. Bijoli Bhattacharya, (1979) 2 Cal LJ 526. Mr. Mitter has further contended that the document sought to be pre-empted, namely, the document (Ext. B) dated Aug. 3, 1974 is not a kobala but only a deed of release as Tukubala Biswas was benamdar of her husband Rabindranath Biswas. Mr. Mitter submits that Kusum Rani purchased from Rabindranath Biswas by the kobala, Ext. B (1), dated March 18, 1974. But as it transpired subsequently that a benami document had been executed by Rabindra in favour of his wife Tukubala (Ext. B (2)) on March 15, 1974 it was thought advisable to have a deed of release from Tukubala. Mr. Mitter argues that all these questions are material for the purpose of decision of the application for pre-emption and the learned court? below failed to exercise their jurisdiction.

(3.) Mr. Harinarayan Mukherjee, learned Advocate for the opposite party No. 1, has submitted that the contentions raised by Mr. Mitter cannot be urged in the present revisional application as no objection was raised by the petitioner Kusum Rani before the trial court as well as before the appellate Court regarding the land being non-agricultural. It has further been contended that Rabindra had already sold to Tukubala and, as such, Kusum Rani did not derive any interest by the kobala, Ext. B (1). Kusum Rani's interest accrued only when the disputed document was executed by Tukubala in her favour and Sanyasi Biswas being the contiguous owner of the disputed land was entitled to pre-empt.