Judgment:
Sudhendu Nath Mallick, J.
1. The instant revisional application under Section 115 of the Code of Civil Procedure has been preferred by the pre-empteepetitloner against the Judgment and order dated 26.5.93 passed by the learned Additional District Judge, 5th Court, Midnapore in Mis. Appeal No. 124 of 1991 affirming the order dated 25.5.91 passed by the learned Munsif, First Court, Contal granting pre-emption in favour of the preemptor-opposite party in J. Mis. case No. 1 of the 1988 under Section 8 of the West Bengal Land Reforms Act on ground of vicinage. Both the courts below have come to a finding that the opp.-pre-emptor is the adjoining land owner in respect of the disputed property purchased by the pre-emptee-petitioner by register deed dated 11.3.81 from one Birendra Nath Das who is admittedly the husband of the pre-emptor O.P.
2. It has been contended by Shri Sahoo the learned Advocate for the present petitioner that both the courts below have erred in law in holding that the op-pre-emptor is an adjoining land owner of the disputed holding in plot No. 222 where she is a co-sharer, there being no partition by metes and bounds in respect of the disputed plot No. 222 among the co-sharers. It has also been further contended by Mr. Sahoo that under Section 14 of the West Bengal Land Reforms Act, hereinafter referred to as the Act partition of a holding among co-sharer owner raiyats shall be made either by registered instrument or a decree or order of a court. Mr. Sahoo's further contention is that the appeal court should not have presumed that there was a partition in respect of the disputed plot No. 222 among the co-sharers long before the Revisional Settlement portion and before the aforesaid Section 14 came into force w.e.f. 7.6.65 on the basis of an alleged admission in para 14 of the written objection of the present petitioner in the aforesaid Mis. case where it has been stated that the recorded owners of the disputed plot had separate possession in respect of their shares in the same by way of amicable partition by metes and bounds. According to Shri Sahoo, if there was no partition in terms of Section 14 of the Act among the co-sharers in respect of the disputed plot there would be no basis of the findings of the courts below that the pre-emptee-op is a raiyat possessing land adjoining the land in dispute in respect of which pre-emption has been sought for. Mr. Sahoo's further contention is that even if the statement made in paragraph 14 of the written objection by his client is taken on the face value it cannot be treated as an effective admission because there cannot be any admission against the provisions of law. Another contention of Mr. Sahoo is that the description of the disputed property in respect of which pre-emption has been sought for is absolutely vague and unidentifiable and as such pre-emption should not have been allowed. It is to be seen in the present revisional application whether the impugned Judgment suffers from any illegality or material irregularity so as to occasion a failure of Justice or cause irreparable injury to the present petitioner.
3. I first take up Mr. Sahoo's first contention that no pre-emption can be allowed on ground of vicinage in respect of an undivided share in a plot of land where both the claiments and the opposite parly and others are co-sharers. In other words, Mr. Sahoo submits that in a plot of land where co-sharers possess specific portions by way of amicable arrangement without a partition being effected among them as required under Section 14 of the Act, none of them can be treated as a raiyat possessing adjoining land in case a part of the said plot is transferred to a third party by any such co-sharer. In support of his contention Mr. Sahoo has referred to a decision of our High Court reported in 1980(1) CLJ 395 (Kedarnath Panchadhoyee and Ors. v. Nagendra Nath Mahapatra and Ors.) It has been held there as follows:-
'............ the materials on record show that the recorded holding............was being held jointly by the pre-emptee, the pre-emptors and others and that there was no partition. Accordingly it cannot be said that any specific portion of that holding is in possession of the pre-emptors, pre-emptees or others. In such circumstances it cannot be held that the pre-emptors are holding land adjoining the land transferred'.
Mr. Sahoo has referred to another decision of this High Court reported in 1987(1) CHN 88 (Khagendra N Panda v. Gaya Prasad Sahu) where the above principle was followed. Mr. Sahoo has also referred to another recent decision of this High Court reported in 1995 WBLR (Cal) 263 (Rekha Rant Matty and Ors. v. Jagalapati Sashmal) where the above principles laid down in Kedarnath's case (supra) have been followed.
4. Against the above contention of Mr. Sahoo, Mr. Bhattacharjee the learned Advocate appearing for the OP has submitted that on the point of partition of the disputed plot among its co-sharers both the courts below have come to a concurrent finding that there has been a partition in respect of the same relying on the admission made in paragraph 14 of the written objection and upon the evidence adduced by the parties. But it may be noted that there is no evidence on record to show that any partition of the disputed plot was effected in terms of the provisions of Section 14 of the West Bengal Land Reforms Act. The OP-pre-emptor in his evidence has said nothing of the partition. The petitioner-pre-emptee in his chief has said that there was no partition of the disputed plot among the purchasers. It appears that there was no cross-examination on this part of his evidence. It seems that both the courts below relied upon the admission regarding the partition made in paragraph 14 of the written objection. But both the courts below, in my opinion, erred in law in not holding that there cannot be any admission against the specific provisions of law. Under Section 14 of the West Bengal Land Reforms Act partition can be effected only by a registered deed or by a decree or an order of a court. Furthermore, admission is not conclusive evidence and can be explained away. Both the courts below did not take into consideration the evidence of the petitioner-pre-emptee on oath denying any partition. Amicable partition by way of mutual arrangement of possession cannot be treated as a partition under Section 14 of the West Bengal Land Reforms Act. The appeal court in the impugned order has presumed that the partition took place long before publication of the R.S. records of rights and before Section 14 of the West Bengal Land Reforms Act came into force on and from 7.6.65. The R.S. records of rights has not been produced before the court below by any of the parties. Furthermore, there is no evidence that such partition took place amicably before 7.6.65. The written objection filed by the petitioner-pre-emptee does not say that such partition took place long before 7.6.65. Under the circumstances I must agree with the contention of Mr. Sahoo that the finding of the courts below that pertition took place long before 7.6.65 is a perverse finding based on no evidence and tainted by conjectures and surmises. Mr. Bhattacharjee has argued that in view of the amended definition of the word holding contained in Section 2(6) of the West Bengal Land Reforms Act the disputed plot must be treated as separate holdings although the Jamma may be common. But the definition of 'holding' as contained in the West Bengal Land Reforms Act cannot be referred to for coming to a conclusion that the disputed plot was partitioned among the pre-emptor, pre-emptee and others. For the purpose of pre-emption of a holding on the ground of vicinage it has got to be proved that the disputed plot or holding was partitioned according to law and as such there was separate legal entity of the owners of the partitioned plot so as to give rise to the right of pre-emption on the ground of vicinage. The parties to the present proceeding may be possessing specific parts of the undivided plot according to their respective purchases, but in the absence of partition in terms of Section 14 of the Act, they must be treated as co-sharers in respect of the said plot and their possession must be treated as possession for each other till partition is effected according to law. Till that is done the holding will be a joint holding there cannot be any right of pre-emption to be exercised by an co-sharer thereof under Section 8 of the West Bengal Land Reforms Act on ground of vicinage. Because, in that case it would mean pre-emption is being claimed against oneself where the disputed plot or holding remains undivided or unpartitioned.
5. Mr. Sahoo's further contention is that pre-emption has been claimed in respect of the property which is unidentifiable. This objection was taken in para 13 of the written objection by the pre-emptee-petitioner, but, from the orders passed by the courts below it does not appear this objection was pursued there. But this being a question of law and also being a matter of record can be looked into by this court while disposing of the revisional application. It appears from the lower court record that the OP- pre-emptor claimed pre-emption in respect of 2 19/28 of land to the north out of 2 19/28 decimals to the east out of 5 19/20 decimals to the south out of 10 1/4 decimals in the middle out of the Dag No. 222 having a total area of 35 decimals. The ambiguity in the matter of identification of the land sought to be pre-empted is so apparent that it does not require any search. It has been submitted by Mr. Sahoo relying upon a decision of the Supreme Court reported : (1996)6SCC699 (Nahar Singh v. Harnak Singh and Ors.) that in order to get relief in a suit or proceeding in respect of any property a party must describe the said property without any ambiguity. It has been rightly submitted by Shri Sahoo that no court can grant a relied in respect of a vague and unidentifiable property. In the present case it is quite apparent on record that the courts below have ganted relief in respect of a vague and unidentifiable property. In the above facts and circumstances and the provisions of law in this regard I must hold that the pre-emptor-OP is not entitled to get an order of pre-emption in respect of the disputed transfer and the findings of both the courts below are absolutely illegal and against the provisions of law. The impugned Judgment and order be set aside and the pre-emption case being J. Mis. case No. 1 of 1988 is dismissed. No order as to costs. All interim orders are vacated.