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Calcutta High Court Judgments on Land Issues and Partition

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Application for pre-epmtion under sec. 8 of the L.R Act would be maintainable in respect of a land in the nature of BASTU (Also available at [2016(1)CLJ(Cal)513])
In the case of Sreemutty Atarjan Bibee & Ors. - Sheikh Ashak & Anr. reported in 4 CWN 788 the plaintiff and the defendant were the cosharers in a Putni taluk. They had equal interest. The plaintiff in that case alleged that the defendant had dug a tank in the joint property, in spite of protest and he wanted a decree for restoration of the land to its original position. This Court held that by digging the tank no injury was caused to the property. Therefore, the plaintiff could not have the tank filled up or the land restored to its former position. But he was entitled to a declaration of title in the tank to the extent of his share [Also available at 2015 (1) CLJ (Cal) 320]
It is the settled law that property once vested cannot be divested without due operation of law. Since the property in question has been vested lawfully in the State, there cannot be any question of derequisition under Section 6 of the West Bengal Act- II of 1948 in view of end of Act- II of 1948 and amendment (State) of Act- I of 1894 as claimed by the petitioners [Also available at 2015(3) CLJ (Cal) 05]
Having regard to the fact that when one of the admitted co-sharers transferred a portion of his share in the suit property, the purchaser automatically became co-sharer by virtue of purchase. As such, in the absence of those co-sharers, the suit for partition cannot be held to be maintainable [AIR 2015 (NOC) 1094 (CAL)]
It is true that there may not have been partition of the larger plot in accordance with Section 14 of the 1955 Act, but partition and demarcation are not the same thing. There may well be physical demarcation of a plot of land carving out smaller demarcated plots with separate identities without there being partition in accordance with Section 14 of the 1955 Act. Section 2(6) talks of 'undemarcated interest' and not of 'unpartitioned interest'. In my view, the petitioner cannot be said to have an undemarcated interest in the suit plot or for that matter, any interest in the suit plot. The petitioner's interest is limited to the schedule 'A' and schedule'B' properties. Hence, in my opinion, the petitioner cannot be said to be a co-sharer in respect of the suit plot [Also available at AIR 2015 (NOC) 714 (CAL) ]
The date of registration of the document of transfer is the date when the document comes to the public domain and a person is deemed to have knowledge of the document from such date. Thus, a non-notified co-sharer is entitled to bring a petition for pre-emption under Section 8 of the Act of 1955 within a period of three years from the date of registration of the impugned document of sale [Also available at 2015 (1) CLJ (Cal) 424]
There is no two-opinion on the position of law that if statue prohibits partition of a particular class of property except by way of registered document, then unless partition is effected by a registered deed there can be no partition in accordance with law even if, the parties actually made oral partition. In such a case, if the co-sharers remain in occupation of a particular demarcated portion by such mutual arrangement, for such arrangement their un-demarcated interest in the plot is not extinguished. In the eye of law, they remain co-sharer so long there is no registered deed of partition notwithstanding the fact that each of the co-sharers are in occupation of a particular demarcated portion [Also available at 2015 (3) CLJ (Cal) 244]
Under Mohammedan law if the donor and donee are residing in the same property it is not essential that the donor should depart from the premises to deliver possession to the donee. The gift is completed by any overt act on the part of the donor to divest himself of control over the property. (paragraph 152 (2) of Mohammedan law by Mulla) [Also available at 2015 (3) CLJ (Cal) 351].
It is obvious that in a proceeding of pre-emption save and except in any remote possible case any question of title over any deed duly executed and registered ordinarily is not adjudicated. Because in a case of pre-emption subject-matter is only whether the right of pre-emption is available to the pre-emptor or not on the grounds as envisaged under section 8 of the West Bengal Land Reforms Act. It would be absolutely risk of the pre-emptor to opt for pre-emption of the property so transferred provided he or she is either co-sharer or adjoining land owner and in that event had there been any defect of any kind in the title passed by the impugned deed of transfer the pre-emptor is entitled only to the portion to which he is legally entitled to and nothing more and nothing less since he/she cannot get any better title than passed by the impugned deed of transfer. In turn the pre-emptee would be entitled to get the consideration money along with statutory sum in respect of that pre-empted property deposited by the pre-emptor before the learned Trial Judge as a condition precedent which only in the event of success in the pre-emption case the pre-emptee would be entitled to and in that event also there would be nothing more and nothing less. That is why a right of pre-emption is a weak right though it is exercisable only under the provisions of a special statute[2016(3) CLJ(Cal) 493]

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