TAPAN KRISHNA DAS Vs. HAZI SAJJAD ALI KHAN

JUDGEMENT

(1.) This is an application for revision under section 115 of the Code of Civil Procedure challenging the judgment and order passed by the learned Additional Judge, 6th Court, Midnapore in Misc. Appeal No. 70 of 1999 dated 31st August, 2000 reversing the judgment and order passed by the learned Civil Judge (Junior Division), 2nd Court, Midnapore in J. Misc. Case No. 32 of 1992 dated 21st May, 1999.

(2.) The opposite party filed the pre-emption case against the petitioner herein in respect of .053/4 Decimals of land in plot No. 308 under Khatian No. 540 of Mouza-Inda, which was sold by the opposite party No. 2 in favour of the appellant. The opposite party No. 1 is owner of plot No. 310 measuring 21 decimals which is exclusively got by a strength of partition amongst the co- sharers dated 6th June, 1990 and the said plot No. 310 is adjacent to the suit land.

(3.) The opposite party No. 1 contended that the property was not sold or transferred by the opposite party No. 2 by a sale deed dated 28th July, 1989. But it was an outcome of loan transaction. The opposite party No. 2 received the loan by mortgaging the suit property to the opposite party No. 1 against the interest and the suit property was kept as security with opposite party No. 1. Thus, pre-emption is not maintainable. The Civil Judge (Junior Division) dismissed the case of the opposite party No. 1 herein. Being aggrieved by and/ or dissatisfied with the judgment and order the petitioner preferred an appeal, order of which is impugned hereunder. The Appellate Court found from the map of the case land annexed with 'kobala' that the plot Nos. 308 and 310 are adjacent. The plea of the petitioner herein is that the impugned sale was a loan transaction which has not been proved by adducing any cogent evidence. So, it was held that the alleged transfer cannot be said to be a loan transaction in substance. The other point, as discussed therein, whether the opposite party No. 1 is entitled to pre-empt the land without any partition by metes and bounds amongst the co-sharers in respect of plot No. 310. The Court accepted the ratio of the judgment delivered by a Bench of this Court reported in 2000(1) CHN 505, Bula Kundu vs. Nirmal Kumar Kundu & Anr., and held that although prior position of law was that the pre-emptors who were holding adjoining land were transferred are not entitled to pre-empt unless and until the possession of this specific portion of this adjoining land is demarcated. But by virtue of such judgment, having binding effect on it, an application for pre-emption can be made on the ground of adjoining ownership. It is not necessary that the applicant must be the holder of adjoining holding. If a co-sharer of adjoining holding may apply for pre-emption the Court ultimately held that the opposite party herein is entitled to get an order of pre-emption and in such a position the partition amongst the co-sharers whether took place after the transfer of the suit land is immaterial. It is also immaterial whether the partition deed was legal or valid. Considering all the aspects the Court ultimately held that the opposite party No. 1 has been able to show that he has adjoining land to the suit holding and as a result he is entitled to pre-empt the suit property. The learned Court below, thus, has come to an erroneous decision. It has felt to consider that the opposite party No. 1 is not the owner of the plot No. 310. Accordingly such order was set aside.