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Tarapada Mishra Vs. Hare Krishna Das and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. Nos. 8 and 9 of 1955
Judge
Reported inAIR1957Cal335,61CWN241
ActsCode of Civil Procedure (CPC) , 1908 - Sections 36 and 47; ;West Bengal Non-Agricultural Tenancy Act, 1949 - Section 24(8)
AppellantTarapada Mishra
RespondentHare Krishna Das and anr.
Appellant AdvocateJitendra Kumar Sen Gupta, ;Bankim Chandra Banerjee and ;Basanta Kumar Panda, Advs.
Respondent AdvocateBholanath Roy, Adv.
DispositionAppeals allowed
Excerpt:
- .....that section, except with regard to the disputed dwelling house which is the subject-matter of the present proceedings. after the said delivery of possession, the present respondents applied under section 47 of the code of civil procedure seeking to resist the appellant's claim for delivery of possession in respect of the disputed dwelling house by setting up a title thereto from suresh whose share was not the subject-matter of the pre-emption proceedings. the respondents' claim was resisted by the appellant who set up exclusive title to the disputed dwelling house in favour of the persons whose shares were pre-empted by him in the pre-emption proceedings. these exclusive titles of the respective parties mutually conflicting, were set up under a partition but their cases of allotment.....
Judgment:

P.N. Mookerjee, J.

1. These two appeals arise out of two proceedings for enforcement of two pre-emption orders. The pre-emptor is the appellant before us and the facts relevant for our present enquiry are as follows:

2. A non-agricultural holding belonged to three persons, viz., Suresh, Ramesh and Gopal, each having an undivided one-third share in thesaid property. On January 10, 1944, Suresh's one-third share passed to one Dwarka Nath Pal in execution of a decree. Possession was taken by this auction-purchaser on May 9, 1944. On July 15, 1944, the present appellant Tarapada Mishra purchased the said share from Dwarka's heirs' and legal representatives by a registered kobala. On September 20, 1950, the respondent Hare Krishna Das purchased Gopal's undivided one-third share by a kobala which was registered on September 21, 1950, and on the same date, namely, September 21, 1950, Hare Krishna's minor son Saradindu, who is the respondent in the other appeal (No. 9 of 1955), purchased Ramesh's undivided one-third share by a kobala, registered on the same date. Thereafter, Tarapada, the present appellant, made two applications for pre-emption under Section 24 of the West Bengal Non-Agricultural Tenancy Act of 1949 for pre-empting the above two sales in favour of the respondents Harekrishna and Saradindu. The pre-emption applications were allowed by the learned Subordinate Judge on November 2, 1951, and delivery of possession was given to the pre-emptor under Sub-section (8) of that section, except with regard to the disputed dwelling house which is the subject-matter of the present proceedings. After the said delivery of possession, the present respondents applied under Section 47 of the Code of Civil Procedure seeking to resist the appellant's claim for delivery of possession in respect of the disputed dwelling house by setting up a title thereto from Suresh whose share was not the subject-matter of the pre-emption proceedings. The respondents' claim was resisted by the appellant who set up exclusive title to the disputed dwelling house in favour of the persons whose shares were pre-empted by him in the pre-emption proceedings. These exclusive titles of the respective parties mutually conflicting, were set up under a partition but their cases of allotment with respect to the disputed dwelling house were different in that, according to the respondents, it was allotted to Suresh while, according to the appellant, it was allotted to the other two persons Ramesh and Gopal.

3. The learned Subordinate Judge refused to go into this disputed question of title in the present proceedings which were really for enforcement of the pre-emption orders and, in that view, he dismissed the respondents' objections.

4. On appeal, the learned District Judge has reversed that decision and directed the appellant to be put in possession of an undivided two-thirds share upon the view that when the respondents have claimed exclusive possession under an exclusive title, the appellant was not entitled to khas possession of 16 annas of the disputed property in these proceedings.

5. In our opinion, neither of the two Courts below has taken a proper view of the rights of the parties in the present proceedings or of the scope of the same. The pre-emption orders were being executed for delivery of possession. Under Section 24(8) of the Non-Agricultural Tenancy Act the pre-emptor is entitled to delivery of possession of the pre-empted property in execution of the preemption order. That execution will have to be levied in the Civil Court and according to the Code of Civil Procedure and, in view of Section 36 of the Code, it will be on the same lines as execution of Civil Court decrees. To such proceedings for delivery of possession, the corresponding provisions of the Code would be applicable. In the present case the appellant pre-emptor, according to his case, obtained partial delivery of possession of the preempted property but could not get possession of the rest on account of resistance by the respondents. Hemight have come & asked for further execution and delivery of possession under Order XXI, Rule 97 of the Code and then the relevant provisions of the Code, following the said provision, might have been put into operation. Before, however, he actually put in any application under that provision, the respondents, who were the judgment-debtors in the preemption, proceedings, applied under Section 47 of the Code of Civil Procedure seeking to resist the pre-emptor's claim for delivery of possession of the disputed property on the strength of an exclusive title to the same, derived from Suresh whose title or whose property was not the subject-matter of the pre-emption proceedings. The pre-emptor also, as we have said above, set up in turn the exclusive title of the original owners Ramesh and Gopal, in respect of whose shares he obtained the orders for pre-emption, to the disputed property. The question then arises as to what should be done by the Court in these proceedings.

6. It is not disputed by the appellant that, under the pre-emption orders, as passed on the state of things, then existing, he would be entitled only to delivery of possession of an undivided two-thirds share, but his further case is that, so far as the disputed dwelling house is concerned, it has, by virtue of a subsequent partition, exclusively fallen to the lot of the persons whose shares were pre-empted by him in the pre-emption proceedings. If he succeeds in establishing this, he will certainly be entitled to get exclusive possession of the dwelling house in the present proceedings. If he fails to prove such partition and allotment, he will be entitled in these proceedings only to delivery of possession of an undivided two-thirds share of the disputed property, provided, of course, the respondents do not succeed in establishing that the disputed property in its entirety was allotted to Suresh whose share or whose property was never the subject-matter of pre-emption. The appellant's title, if any, to Suresh's share, allotment or property cannot be enforced in these proceedings which arise out of and are concerned solely with the execution or enforcement of preemption orders, not relating to Suresh's property.

7. It is, accordingly, necessary that the disputed question of allotment, as indicated above, should be investigated and proper orders should be passed by the Court, finally disposing of the present proceedings in the light of its finding on that question and in the light of our observations, made above.

8. We would, accordingly, allow these appeals, set aside the orders of both the Courts below and direct that the dispute between the parties be investigated in the light of the directions, given in this judgment. For that purpose, these two cases would go back to the executing Court and the parties will be given proper opportunities of adducing evidence in support of their respective cases and the Court will decide the matter finally in the light of the evidence before 'it, keeping in view the approach, indicated in this judgment.

9. Costs of these appeals will abide the final result.

10. In view of the order, passed in the appeals, no order is necessary on the alternative applications.

Renupada Mukherjee, J.

11. I agree.


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