DUSHASAN KAYAL Vs. SANDHYARANI DAS

JUDGEMENT

(1.) The instant revisional application under section 115 of the Code of Civil Procedure has been preferred by the pre-emptee-petitioner against the Judgment and order dated 26.5.93 passed by the learned Additional District Judge, 5th Court, Midnapore in Mis. Appeal No. 124 of 1991 affirming the order dated 25.5.91 passed by the learned Munsif, First Court, Contai granting pre-emption in favour of the pre-emptor-opposite party in J. Mis. case No.l of the 1988 under section 8 of the West Bengal Land Reforms Act on ground of vicinage. Both the courts below have come to a finding that the opp.-pre-emptor is the adjoining land owner in respect of the disputed property purchased by the pre-emptee-petitioner by register deed dated 11.3.81 from one Birendra Nath Das who is admittedly the husband of the pre-emptor O.P.

(2.) It has been contended by Shri Sahoo the learned Advocate for the present petitioner that both the courts below have erred in law in holding that the op-pre-emptor is an adjoining land owner of the disputed holding in plot No.222 where she is a co-sharer, there being no partition by metes and bounds in respect of the disputed plot No.222 among the co-sharers. It has also been further contended by Mr. Sahoo that under section 14 of the West Bengal Land Reforms Act, hereinafter referred to as the Act partition of a holding among co-sharer owner raiyats shall be made either by registered instrument or a decree or order of a court. Mr. Sahoo's further contention is that the appeal court should not have presumed that there was a partition in respect of the disputed plot No.222 among the co-sharers long before the Revisional Settlement portion and before the aforesaid section 14 came into force w.e.f. 7.6.65 on the basis of an alleged admission in para 14 of the written objection of the present petitioner in the aforesaid Mis. case where it has been stated that the recorded owners of the disputed plot had separate possession in respect of their shares in the same by way of amicable partition by metes and bounds. According to Shri Sahoo. If there was no partition in terms of section 14 of the Act among the co-sharers in respect of the disputed plot there would be no basis of the findings of the courts below that the pre-emptee-op is a raiyat possessing land adjoining the land in dispute in respect of which pre-emption has been sought for. Mr. Sahoo's further contention is that even if the statement made in paragraph 14 of the written objection by his client is taken on the face value it cannot be treated as an effective admission because there cannot be any admission against the provisions of law. Another contention of Mr. Sahoo is that the description of the disputed property to respect of which pre-emption has been sought for is absolutely vague and unidentifiable and as such pre-emption should not have been allowed. It is to be seen in the present revisional application whether the impugned judgment suffers from any illegality or material irregularity so as to occasion a failure of justice or cause irreparable injury to the present petitioner.

(3.) I first take up Mr. Sahoo's first contention that no pre-emption can be allowed on ground of vicinage in respect of an undivided share in a plot of land where both the claiments and the opposite party and others are co-sharers. In other words, Mr. Sahoo submits that in a plot of land where co-sharers possess specific portions by way of amicable arrangement without a partition being effected among them as required under section 14 of the Act, none of them can be treated as a raiyat possessing adjoining land in case a part of the said plot is transferred to a third party by any such co-sharer. In support of his contention Mr. Saban has referred to a decision of our High Court reported in 1980(1) CLJ 395 (Kedarnath Panchadhoyee & Ors. v. Nagendra Nath Mahapatra &. Ors.) It has been held there as follows:--