ASRAF HOSSAIN Vs. JAHANGIR HOSAIN

JUDGEMENT

(1.) This revisional application arises out of a proceeding under S.8 of the West Bengal Land Reforms Act, 1955. Both courts of fact have found that the petitioner was a stranger purchaser of an undivided interest in the disputed raiyati holding and the pre-emptor opposite party was a co-sharer tenant. It is no longer disputed that the said application under S.8 of the West Bengal Land Reforms Act was filed within time. Therefore, both the learned Munsif in the trial court and the learned Subordinate Judge in appeal have upheld the claim of the opposite party to pre-empt the purchase made by the petitioner by the kobala dated April 5, 1965.

(2.) Mr. J. Islam, learned advocate for the petitioner has submitted that both the learned Munsif and the learned Subordinate Judge failed to discharged their statutory duties by not satisfying themselves as to whether the pre-emptor opposite party was already possessing lands up to the ceiling area prescribed by S. 14M of the West Bengal Land Reforms Act, 1955. Mr. Islam has further submitted that the court before allowing the application for pre-emption ought to have made an enquiry and arrive at a finding in this behalf. He has submitted that this court may now remand the case. In my view the petitioner is not entitled to pray for a remand of the case on the above ground. The learned Subordinate Judge in his appellate judgment has observed that this point was not taken either before the learned Munsif or in the memorandum of appeal filed in the appellate court. There was also no evidence in support of the submission made by the appellant at the time of the hearing of the appeal that the pre-emptor already owned lands up to the ceiling area mentioned in S. 14M of the West Bengal Land Reforms Act, 1955. The learned Subordinate Judge has further found that he had only 10 to 15 bighas of agricultural land. The said evidence of the respondent was not challenged in cross-examination. In my view, the learned Subordinate Judge has rightly overruled the above contention of the present petitioner. Mr. Islam, learned advocate for the petitioner, has submitted that S. 106 of the Evidence Act was applicable and that the said fact as regards the actual area of his lands being within the special knowledge of the pre-emptor, he was bound to prove the same. I have already pointed out that in this case the pre-emptor did depose before the Munsif that the total area of his lands was much below the ceiling. The petitioner neither cross-examined him nor did he adduce any rebutting evidence on the said point. The petitioner did not urge before the learned Munsif the said point. The learned Subordinate Judge in appeal on facts answered the said question regarding S. 14M of the West Bengal Land Reforms Act, 1955 in favour of the pre-emptor respondent. The petitioner cannot be allowed to urge in revision a question of fact for which he did not lay any foundation in the court of first instance. In the above view, sitting in revision, I am not prepared to remand the matter for a de novo trial on the question as to whether or not the pre-emptor had land in excess of the ceiling prescribed by S. 14M of West Bengal Land Reforms Act, 1955.

(3.) Mr. Islam, learned advocate for the petitioner relied upon the decision of Salil Kumar Datta J. in Pasupati Mondal v. Subhrangshu Mondal & Ors. reported in 1978 Calcutta high Court Noter 514. But the said decision is distinguishable on facts from the present case. It appears from the judgment of Salil Kumar Datta J. that the transferee had taken a point before the learned Munsif that the pre-emption should not be allowed because it would be in violation of the provision of S. 14M of the West Bengal Land Reforms Act, 1955. Both parties had adduced evidence on this point. The learned Munsif found the said point against the transferee. At the time of the original hearing of the Civil Rule the said point regarding S. 14M was not taken. The petitioner in his review petition filed before Salil Kumar Datta J. had inter alia relied upon a Nirupanpatra in order to substantiate his allegation that in case the pre-emption was allowed the lands of the claimant for pre-emption would exceed the ceiling area as provided in S. 14M of the said Act. The petitioner in his review application had relied upon the certified copies of the Record of Rights in respect of the land allegedly held by the claimants for pre-emption. Salil Kumar Datta, J. had reviewed his earlier order and had remitted back the case. I have already pointed out that the evidence of the pre-emptor that he owned 10 to 15 bighas of lands was not challenged by the present petitioner. Secondly, the petitioner neither in the lower appellate court nor in this court filed any documentary of the Revenue Authorities to substantiate his allegation that the pre-emptor opposite party already possessed lands in excess of the ceiling prescribed by S. 14M of the West Bengal Land Reforms Act, 1955.