SK. KACHI MD Vs. SATINDRA NARAYAN BAIDYA

JUDGEMENT

(1.) The present revisional application is arising out of a judgment of reversal passed by the Additional District Judge, 2nd court, Burdwan in Misc. Appeal No.31 of 1993.

(2.) The dispute relates to Plot No.11, R.S. Khatian No.594 of Mouza Abhirampur, P.S. Ausgram, Chowki, Dist. Burdwan. The entire suit holding was previously owned by one Smt. Nilima Ghosh. The said recorded owner had transferred different portions of the suit plots to different persons, one of whom was Sri Santi Kumar Raja who purchased 20 cents of suit plot situated to the north/east corner of the suit-holding. Sri Santi Kumar Raja, thereafter, transferred his 20 cents of suit plot no.11 by two separate sale deeds dated 16th October, 1974 and 18th November, 1974 by which 12 cents of land on the western side was sold to Satindra Kumar Baidya and the rest 8 cents on the contiguous east to the elder brother being the opposite party No.2 in this proceeding. The said opposite parties purchased defined demarcated portion in respect of these 8 cents and it is the admitted position that these 8 cents of land were transferred by two separate sale deeds to the original petitioner, namely, Sk. Kachi Md. and his wife. The said two transfers in respect of 8 cents of land had been the subject-matter of challenge in two Misc. Cases, namely, Misc. Case nos.29 and 31 of 1986. This subsequent sale in favour of the petitioner and his wife was objected to by Satindra Kumar Baidya claiming that the said opposite party no.1 being a contiguous owner and a co-sharer of the suit plot is entitled to pre-emption. At the time of filing of the said misc. case, the opposite party no.1 deposited Rs.17,600/- in Court as consideration-cum-compensation. In the said proceeding, the opposite party no.1 prays for pre-emption in his favour.

(3.) The learned 3rd Munsif, Burdwan upon consideration of the evidence held that there is no existence of any such plot number which is claimed to be contiguous to the suit plot and in absence of proper identitification of such plot, no presumption can be drawn in favour of the petitioner. A co-owner cannot be an adjoining owner in respect of same plot which is not being partitioned. There was no evidence on record to show that any partition was effected between the parties by metes and bounds inasmuch as no registered deed of partition or any decree of Court showing partition was filed in the said proceeding.