SADHAN CH KOLEY Vs. DULAL BIBI

JUDGEMENT

(1.) This Rule is directed against an appellate order passed by the appellate authority on the 22nd of Aug., 1976 whereby the appeal was dismissed and the decision of the Special Officer under the West Bengal Restoration of Alienated Land Act, 1973 dated the 28th of April, 1975 was affirmed. The material facts are that on the 12th of Jan., 1972 Dulali Debi for self and as guardian of her minor sons sold about 18 sataks of raiyati land described in the schedule to the kobala to Sadhan Chandra Koley, petitioner No. 1 in this Rule. In the kobala it was stated that for the purpose of debt incurred for treatment of minor sons and their maintenance and for other necessary expenses she urgently required the money and sold the suit property to petitioner No. 1 for Rs. 200/-. On or about the 17th of May, 1974 Dulali Debi filed a petition under Section 4 of the said Act and Rule 3 (1) of the West Bengal Restoration of Alienated Land Rules for effecting restoration to her of the aforesaid land sold by her. In this application it was said that there was an oral agreement for reconveyance of the land to Dulali Debi which was however denied by petitioner No. I.

(2.) On service of the application the petitioner No. 1 denied the allegations made therein contending that the sale was not a distress sale and there was also no oral agreement for reconveyance of the property. It was further stated that the said lands were already sold by him to Jogendra Nath Koley and also to Sridam Chandra Koley and Mritunjoy Kolay 'minor sons of Jogendra Nath Kolay. This application was tried on evidence and the Special Officer referred to the evidence given by Dulali Debi wherein she stated that the money was required for construction of the dwelling house. In view of the contradictions between the statements in the kobala and in the evidence by Dulali Debi, the said Officer was of opinion that it could not be taken beyond doubt that the transfer was made being in distress or in need of money for maintenance of herself or her family or for her khas cultivation. Even so the said Officer on evidence held that there was an oral agreement for reconveyance of the property to her. He accordingly allowed the application and directed that the disputed land was to be restored to Dulali Debi and her minor sons who were the owners of the property. There was a further direction on the transferors to pay Rs. 160/- to Jogendra Nath Kolay, father of the minor sons, (Rs. 200/- as refund of consideration plus Rs. 26/- interest less Rs. 66/- being costs of paddy) in eight installments by the 31st of Dec, 1975.

(3.) Against this decision Sadhan Chandra Kolay preferred an appeal to the appellate authority and in this appeal his transferees Sridam and Mritunjoy minors, by their guardian father, Jogendra, as also Jogendra in his individual capacity were also the appellants. The appellate authority was of opinion that the user of the money for the construction of dwelling-house is an enabling requirement of the human life and expenditure in this count cannot be treated non-essential and need for such expenditure is a distress as contemplated under Section 4 (1) (a) of the Act. The appellate authority did not enter into the question as to whether there was any oral agreement for such sale and held that as such there was no need to go into the evidence of other witnesses.