PRAFULLA KUMAR MAITY Vs. AMAL KRISHNA MISHRA

JUDGEMENT

(1.) The disputed plot No. 1491 appertaining to R.S. Khatian No. 128 of Mouza Athilagari, P.S. Contai, Dist.Midnapore was the retained land of several co-sharers including Bhupendra Nath Maity and Ramesh Chandra Maity, who were all Raiyats as would appear from the R.S. Record of Rights where the said land was recorded as 'Sandi' (Balu Badam). On 30th August, 1969, opposite parties No.1 to 3 purchased .04 decimals being a portion of the said plot No. 1491 from Bhupen Maity. Subsequently, on 11th August, 1972, Bhupen sold about .02 decimals in the same plot to the petitioner. Admittedly, no notice of such transfer under section 5(5) of the West Bengal Land Reforms Act, 1955 was served upon the opposite parties No. 1 to 3. Subsequently, on 26th February, 1973. Ramesh sold his portion to the opposite parties No. 1 to 4. The registration of the said sale was completed on 28th February, 1973. Thereafter on or about 16th June, 1975, the opposite parties No. 1 to 4 filed an application for pre-emption of the said sale dated 11th August, 1972 as referred to above, effected by Bhupen in favour of the petitioner, before the learned Munsif, 1st court, Contai, Midnapore on the ground that they were co-sharers as well as adjoining owners of the said plot and the said application was registered as Judicial Misc. Case No. 69 of 1975.

(2.) The petitioner contested the said proceeding by filing written objection, denying and disputing the allegations made in the preemption application and also raising the question of limitation. The learned munsif by his order dated 24th July, 1976 dismissed the said pre-emption case holding inter alia, that the land in question being a non-agricultural land, application under section 8 of Land Reforms Act, 1955 was not maintainable. The opposite parties being aggrieved by the said order, filed an appeal being No. 178 of 1976 before the learned additional District Judge, 2nd court at Midnapore who by his order dated 14th February, 1977 allowed the appeal and remanded the case back to the learned munsif for fresh decision after giving opportunity to both the parties to adduce evidence on the point of co-sharership and also on other points.

(3.) After remand, the said Judicial Misc. case was again dismissed by the learned Munsif on 9th September, 1978 holding inter alia, that the land in question being a non-agricultural land, application under section 8 of the West Bengal Land Reforms Act was not maintainable. Against the said order, the opposite parties preferred an appeal being No. 214 of 1978 before the learned Additional District Judge, 1st court at Midnapore which was also dismissed on 28th February, 1980. Against such dismissal, the opposite parties moved a revisional application under Article 227 of the Constitution of India in this Hon'ble Court which gave rise to C.R. No. 1730 of 1980. The said Civil Rule, however, was made absolute by Sudhendra Mohan Guha, J. on 23rd July, 1981 by setting aside the impugned order and remanding back the case again to the learned Munsif for a fresh decision observing inter alia, that the trial court should ascertain first, whether notice under section 5(5) of the West Bengal Land Reforms Act, 1955 was served upon Ramesh Maity and if not served, the application for pre-emption would be found to be in order and if the notice was found to have been served, the learned Munsif would give the opposite parties an opportunity to strike the name of the opposite party No. 4. Against the said order, a special leave petition was filed before the apex court of India by the petitioner, but the same was dismissed. The learned Munsif, 1st court at Contai, Dist.-Midnapore this time by his order dated 17th June, 1987, allowed the said judicial misc. case after remand holding inter alia, that no notice was served upon Ramesh Maity and also upon the opposite parties and as such, the pre-emption application was maintainable and the opposite parties being the co-sharers of the suit holding had right to pre-empt the disputed sale, as by purchase from Ramesh the co-sharer, the opposite parties had stepped into the shoes of Ramesh. Being aggrieved by the said order, the petitioner preferred an appeal being Misc. Appeal No. 180 of 1986 which was also dismissed by the learned additional District Judge, 3rd court at Midnapore on 5th December, 1987 and against the said order of dismissal, the petitioner has moved a revisional application in this Hon'ble Court giving rise to the present civil order.