JUDGMENT
D. B. Dutta, J.
1. The present re visional application under section 115 C.P.C is directed against the orders Nos. 40 dated 23.9.97, 49 dated 9.3.98, 50 dated 10.3.98: and 51 dated 21.3.98 passed in J. Misc. Case 32 of 1987 of the Court of Munslff, Jhargram. The opposite parties filed that Misc. Case for pre-emption under sections 8 and 9 of the West Bengal Land Reforms Act in respect of a transfer that was made in favour of the petitioners, on the grounds of both co-sharershlp and vicinage, on depositing the consideration money together with the solatium. The petitioner sought to resist
the said application for pre-emption on several grounds namely that the application was barred by limits of time, that the land concerned was not an agricultural land, that the opposite parties were not co-sharers of the holding conerned, that they were not possessing land adjoining the concerned holding that no portion or share of the holding was the subject matter of the transfer sought to be pre-empted and that the opposite parties did waive their right of pre-emption.
2. The learned Munsiff found that the application was well within the prescribed time limit, that part of the holding was the subject matter of the transfer, that the opposite parties were not co-sharers of the holding and that they had lands adjoining the concerned holding and that the land transferred was not agricultural land and that there was waiver on the part of the opposite parties in relation to their right of pre-emption. If there be any, in respect of the transfer in question. Accordingly, the learned. Munsif dismissed the application for pre-emption.
3. Being aggrieved the opposite parties preferred an appeal being Misc. Appeal No. 79 of 1988 and the learned Additional District Judge differed and concurred with some of the findings of the learned Munslff. The lower appellate court differed with the finding of the trial court so far as it related to the nature and character of the land and also on the question as to whether a portion of the holding was transferred. The appellate court concurred with the findings of the trial court on the other questions namely whether the pre-emptors are co-sharers, whether they possess land adjoining the holding and the question whether they had waived right of pre-emption. In such view of the matter, the appellate court dismissed the appeal by its order dated 31.7.89.
4. Being aggrieved by this dismissal, the opposite parties preferred a revision before this court being C.O. 3029 of 1990. This court was of the view that in view of the present definition of “land” as incorporated in clause (7) of section 2 of the West Bengal Land Reforms Act with retrospective effect by the West Bengal Land Reforms (Amendment) Act, 1981, bringing land of every description whatsoever, both agricultural and non-agricultural, within the ambit of the expression ‘land”, the question whether or not the land concerned and the structure thereon is used for agricultural purpose is no longer material for the purpose of adjudicating a claim for pre-emption under section 8 of the West Bengal Land Reforms Act. In view of the definition of the expression ‘holding” as amended by section 26(1)(a) of the West Bengal Land Holding Revenue Act with effect from 14.4.81, this court was of the view that a holding constitutes only land or lands held by right and that there cannot be any co-sharer in respect of any holding.
5. Since there were concurrent findings of fact by both the trial court and the appeal court on the question of vicinage in favour of the pre-emptors, this court did not interfere with that finding.
6. The dispute, between the parties before the revisional court was confined only to two points namely whether or not by the transfer sought to be pre-empted a portion of the holding was transferred and whether or not the opposite parties had by their acts and conduct waived their right of pre-emption. This court recorded specific findings on the said two
questions in favour of the pre-emptors. Thus, in view of the findings of this revisional court in the civil revision, nothing could stand in the way of the opposite parties getting an order of pre-emption and this court accordingly set aside the dismissal of the application for pre-emption as well as the appeal and allowed the revision by its order dated 11.4.96.
7. On 16.4.97, the opposite parties filed an application before the trial court for getting delivery of possession of the pre-emptible property. By the Impugned order No. 40 dated 23.9.97, the said application was allowed and the trial court ordered issuance of writ for delivery of possession as prayed for by the opposite parties. The petitioners filed a petition (not verified) on 30.9.97 before the trial court making certain allegations and praying for staying the operation of the aforesaid order dated 23.9.97 on the ground that she would move the High Court in revision against the said order. It was alleged that 4.9.97 was the dale fixed for hearing of the application that was filed by the opposite parties on 16.4.97 for delivery of possession and that the court did not give the petitioner a hearing. The petitioner also filed another application on 10.11.97 for bringing stay order and by the Impugned order No. 49 dated 9.3.98, both the petitions dated 30.9.97 and 10.11.97 were rejected. In the order dated 9.3.98, the trial court observed that the application that was filed by the opposite parties on 16.4.97 was really an application for execution of the order that was passed by the High Court in the civil revision referred to above and as such, there was hardly any scope to hear the petitioner at that stage. This order dated 9.3.98 records the fact that on the petitioner’s application filed on 30.9.97, the trial court was pleased to keep the order dated 23.9.97 in abeyance till 10.11.97. It also records the fact that the petitioner was allowed further time beyond 10.11.97 for bringing stay order; but till 9.3.98 the petitioner did not bring any stay order and accordingly the trial court rejected the two petitions and directed issuance of delivery of possession in terms of Its order dated 23.7.97.
8. On 10.03.98. the petitioner filed another petition praying for staying the operation of the order dated 9.3,98 so that she could move the appeal court The said petition was not, however, moved before the trial court nor any copy served upon the pre-emptor opposite party and the court was pleased to reject the petition by the third Impugned order No. 50 dated 10.3.98
9. The petitioner filed yet another petition on 21.3.98 praying for staying the operation of the order of execution so as to enable her to move the higher forum against the order dated 9.3.98 alleging that the disputed property was in possession of a tenant who was not bound by the pre-emption order. The said tenant was, however, none but the husband of the petitioner, and according to the trial court, the question whether the disputed property was in the possession of a tenant or not is a question within the section 47 of the CPC which would be applicable to an execution proceeding for preemption. The trial court was of the view that there was no bar to handing over the symbolical possession under Order 22 Rule 35(1) CPC to the decree holder. It accordingly directed symbolical possession to be handed over to the decree holder opposite parties at that stage with the observation that If after hearing the petition dated 21.3.98. it is found that there is no tenant
in the suit premises actual possession would be delivered. That is how the trial court passed the Impugned order dated 21.3.98 directing delivery of the symbolical possession and fixing a date for hearing of the petition that was filed on behalf of the petitioner on 21.3.98.
10. Mr. Ganguly challenged the Impugned orders mainly on the ground that in the absence of any specific order of this court in the civil revision expressly granting pre-emption in favour of the pre-emptor opposite parties, the trial court was not competent to allow the opposite parties’ application for delivery of possession by its order dated 23.9.97 without even giving a hearing to the petitioner and was not justified in rejecting the petitioners subsequent petitions for staying operation of that order and in directing delivery of symbolical possession by order dated 10.3.98. It was contended that even though the earlier order dated 23.9.97 was not challenged by the petitioner by filling and application under section 115 CPC before this court within the prescribed time limit, this court would be quite competent to reverse an erroneous order of lower court even suo motu under section 115 and that the mere fact that the petitioner did not move in revision against that particular order within time, would not stand in the way of the High Court in making an order in accordance with law. In support of this contention, Mr. Ganguly referred to in re: Dinar/codas Raghublr Prosad Chowdhwy; 1987(1) CLJ 479.
11. Mr. Mukherjee, the learned counsel appearing for the opposite parties contended that the petitioner not having disputed the fact that deposits and other formalities as required by sections 8 and 9 of the West Bengal Land Reforms Act were duly made and complied with, the order passed by this court in C.O. 3029 of 1990 was really an order allowing the opposite party’s application for pre-emption filed before the trial court even though it did not expressly record a formal order to that effect while disposing of the C.O. 3029 of 1990 by its order dated 11.4.96. Mr. Mukherjee submits that in view of the said order of this court, all the impediments that stood in the way of the opposite parties getting an order of pre-emption were removed and as such the trial court was quite Justified in so interpreting the order of this court and giving due effect to this order by allowing the opposite parties’ application for delivery of possession in execution of this court’s order. Mr. Mukherjee further contended that by applying for delivery of possession on 16.4.97, the opposite parties must be deemed to have made an application for execution long before the expiry of two years after the date of the decree passed by the High Court in C.O. 3029 of 1990 within the meaning of Order 21 Rule 22 CPC and as such, the learned Munsiff was perfectly Justified in observing that the petitioner was not entitled to hearing at that stage. It was further submitted by Mr. Mukherjee that in case it is urged on behalf of the petitioner-judgment debtor that the Immovable property for the delivery of which the revlslonal court would be deemed to have passed a decree by its order dated 11.4.96 is in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the executing court is to order delivery of symbolical possession in terms of Order 21 Rule 36 CPC and as such, no exception could be taken to the order dated 21.3,98 by which the court directed delivery of such possession of the property. Alternatively, Mr. Muklierjee submits that according to section 2(2) of the
CPC, “decree” means the forma! expression of an adjudication and according to Order 20 Rule 6 CPC the decree must agree with the Judgment and must correctly express what is correctly decided and intended by the court. Mr. Mukherjee submits that a bare perusal of the order passed by this court in the civil revision would at once make it clear that what was intended by this court to be done by virtue of the said order was to allow the prayer of the opposite parties for pre-emption and if this court is of the view that only this court is competent to make good the omission in the order dated 11.4.96, It could do so even now suo motu by invoking the provisions of sections 115 and 152 of CPC. Mr. Mukherjee, relied on Bishnu Charan Das v. Khani Blswal; , Goptil Chandra Naskar v. Hlranya Prova Moultck; and Namdeo Amrut Gofume v. Narayan Shamrao Deshnutkh : .
12. The point for my decision would be as to whether any interference with any of the impugned orders would be justified in the exercise of this court’s revlslonal jurisdiction, in the facts and circumstances of this case.
13. Having anxiously considered the chequered career of this case in the light of the materials on record and the submissions made on behalf of the parties, 1 am of the view that this court by its order dated 11.4.96 did really intend to allow the opposite parties’ application for pre-emption and also to ensure that all the legal consequences of an order granting preemption under sections 8 and 9 of the West Bengal Land Reforms Act ensue. In such view of the matter, I must hold that the learned Munslff did rightly interpret the real purport and effect of this court’s order in coming to the conclusion that the opposite party’s petition under section 8 and 9 of the Land Reforms act was allowed by reason of this court’s order and was perfectly justified by the impugned order dated 23.9.97 in allowing the opposite party’s application for delivery of possession in execution of the order of pre-emption. In such view of the matter, even though this court is competent to make good the omission in Its order under section 151 read with section 152 of CPC in the interest of justice, no such formal amendment of this court’s order dated 11.4.96 would be necessary inasmuch as It is being hereby clarified that what this court intended to do by its order dated 11.4.9G was to allow the opposite party’s application for pre-emption. As such, no exception could be taken to the learned Munslff s issuance of writ of possession at the first instance by order dated 23.9.97 and subsequently by modifying the writ from one for delivery of actual physical possession to one for symbolical possession under Order 21 Rule 36 C.P.C, pending the hearing of the petition that was filed by the Judgment-debtor-petitloner on 10.3.98.
For the reasons stated above, no interference with any of the impugned orders is called for. The revlsional application is, thus, disposed of without any order as to costs.
14. Application disposed of
