TILAK CHANDRA MONDAL Vs. MOHAMMAD SAHADAT MONDAL

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India and is directed against Order No.12 dated 13th July 1974 passed by Shri B. B. Dutta, Munsif, 1st Court, Basirhat, in Misc. Case No.31 of 1974 arising out of a proceeding in Case No.133 of 1966 under S. 8 of the West Bengal Land Reforms Act.

(2.) The facts of the case may brief be stated as follows: - In this case the impugned transfer was made by a Kobala dated 19th of August, 1964. On 29th November 1966 the petitioners filed an application under S. 8 of the West Bengal Land Reforms Act, 1955 claiming pre-emption on the ground that they were co-sharers in the tenancy of the properties and that no notice of the transfer was served upon them. The opposite party No.2 contested the application. It was her contention that she did not actually sell the property but she had taken a loan from the opposite party No.1 and executed the sale deed with an agreement for re-conveyance as a security for the loan. On 17th August 1966 the property had been re-conveyed to her. The application was allowed by the learned Sub-Divisional Land Reforms Officer on 2nd February 1968. The petitioners in execution of the said order obtained possession of the properties. The opposite party filed an appeal being L. R. Appeal No.3 of 1968. The learned Munsif allowed the said appeal and set aside the order of the learned Sub-Divisional Land Reforms Officer and sent the case back on remand for fresh trial. The petitioners being aggrieved by the order of remand passed by the learned Munsif moved this Court under Article 227 of the Constitution. During the pendency of the Rule there was the decision of the Full Bench case reported in AIR 1972 Calcutta 502 (Madan Mohan Ghosh and others v. Sishu Bala Atta and others). The learned Judge directed the trial authority to consider the effect of the Full Bench decision in the facts of the present case. With regard to the amendment of the application it was kept open for the petitioners to raise any question before the lower tribunal. After the disposal of the Rule on 24th of June 1974 an application for amendment of the application for pre-emption for adding a ground that the petitioner is a contiguous owner. The opposite party filed objection and after hearing both the parties the learned court dismissed the application. Being aggrieved, the present application has been filed by the petitioners in this Court.

(3.) Mr. Saktinath Mukherjee, learned Advocate appearing on behalf of the petitioners contends that the learned court below was wrong to hold that the amendment if allowed would change the nature of the case. The original application was one seeking for pre-emption; the amendment if allowed would not change the character and nature of the application. The application would remain one for pre-emption. In this connection it is contended that at the time when the original application was filed it was not necessary for the petitioners to take any other ground besides the ground that the petitioner is a co-sharer. Now, in view of the decision reported in AIR 1972 Calcutta 502 the raiyats of the holding cannot be regarded as co-shares after vesting. In such circumstances it has become necessary for the petitioner to amend the application claiming pre-emption on the ground that the petitioner is a contiguous owner.