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Sadhan Ch. Koley and ors. Vs. Dulal Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberCivil Revision Case No. 3690 of 1976
Judge
Reported inAIR1978Cal269,82CWN416
ActsWest Bengal Restoration of Alienated Land Act, 1973 - Section 4 and 4(1); ;West Bengal Restoration of Alienated Land Rules - Rule 3(1); ;Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 9
AppellantSadhan Ch. Koley and ors.
RespondentDulal Bibi and ors.
Advocates:Radhakanta Bhattacharyya and ;Madan Mohan Ghosh, Advs.
DispositionRevision dismissed
Cases ReferredChittaranjan Ghosh v. State of West Bengal
Excerpt:
- .....been held that for the purpose of the act distress must have only one meaning, namely, economic distress. dulali debi in her evidence has stated that she had no dwelling house and she was constructing her dwelling house for herself and her minor children to reside and she was in need of money for completion of the house. the distress she was suffering at that time due to shortage of funds was also an economic distress for her inability to construct and complete the only dwelling house for residence of herself and her children. for those reasons i am of opinion that the appellate officer was correct in interpreting that the need of money for construction and completion of the only residential accommodation was well within the ambit of clause (a) of section 4 (1) of the act.7. further,.....
Judgment:
ORDER

Salil Kumar Datta, J.

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.

4. In support of the Rule Mr. Bhattacharyya has firstly contended that the application suffers from a fatal defect of parties in that the ultimate transferees had not been made parties to this application and the definition of transferee includes subsequent transferees who in law are entitled to notice. The subsequent transferees here were actually mentioned by the petitioner No. 1 in his petition of objection. He accordingly submits that this application was not maintainable in law.

5. There can be little dispute that if the provisions of the Code are applicable in proceedings under the Act in respect of joinder of parties Mr. Bhattacharyya's contention is likely to succeed. The provisions of the Code have been made applicable under Section 8 to proceedings before the Special Officer in regard to production of evidence and attendance of witnesses. But in this case against the aforesaid order of the Special Officer an appeal was preferred as already indicated. In this appeal, the ultimate transferees joined also as appellants and challenged the order of the said Officer. As the provisions of the Code do not in terms apply to this Act in respect of joinder of parties in view of the position that the appeal was filed by the ultimate transferees also they are bound by the appellate order under challenge in this rule, and accordingly the objection as to defect of parties cannot be entertained. Further the purpose of notice to the transferee is to afford him an opportunity to contest the case for restoration. The opposite party No. 4 Jogendra, it has been found, was present throughout the proceedings and appeared as witness opposing restoration. Accordingly I do not think that any prejudice was caused to the ultimate transferees who by their own act not only submitted to the jurisdiction of the appellate authority under the Act but also were present before the Special Officer opposing restoration. In this view of the matter the contention of Mr. Bhattacharyya as regards defect of parties is overruled.

6. Mr. Bhattacharyya has next submitted that the construction of the house is not within the ambit of the provisions of Clause (a) of Section 4 (1) of the Act. He has referred to the decision in Chittaranjan Ghosh v. State of West Bengal, (1976) 2 Cal LJ 180, in which it has been held that for the purpose of the Act distress must have only one meaning, namely, economic distress. Dulali Debi in her evidence has stated that she had no dwelling house and she was constructing her dwelling house for herself and her minor children to reside and she was in need of money for completion of the house. The distress she was suffering at that time due to shortage of funds was also an economic distress for her inability to construct and complete the only dwelling house for residence of herself and her children. For those reasons I am of opinion that the Appellate Officer was correct in interpreting that the need of money for construction and completion of the only residential accommodation was well within the ambit of Clause (a) of Section 4 (1) of the Act.

7. Further, exercising jurisdiction under Article 227 of the Constitution I do not have the jurisdiction to reappreciate the evidence adduced in regard to the oral agreement.

8. For these reasons, this Rule fails and is discharged. There will be no order as to costs. Time for payment of instalments if not paid is extended to December 1978.


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