15 July 2019


High Court of Calcutta

Ganesh Chandra Paul v. Maya Paul and Ors.




A Court cannot make a new case, not made out by parties in their pleadings

Instant revisional application under Article 227 of Constitution of India, at instance of pre-emptor in a proceeding for pre-emption under West Bengal Land Reforms Act, 1955 is against judgment and order passed by District Judge. By judgment, Appellate Court held that pre-emption case filed by Petitioner under Section 8 of Act was not maintainable for incorrect description of suit land and dismissed pre-emption case of Petitioner.

Supreme Court in case of Sheodhari Rai & Ors. v. Suraj Prasad Singh, and a Division Bench decision of this Court in case of Jugal Kishore Kundu & Ors. v. Narayan Chandra Kundu, observed that it is settled law that, a Court cannot make a new case, not made out by parties in their pleadings and, as such, in absence of any pleading or defence set up by opposite parties that, Petitioner in his application did not describe suit land correctly, Appellate Court below committed a patent error of law in dismissing Petitioner's pre-emption case under Section 8 of Act.

In present case, undisputedly neither in written statement filed before trial Judge, nor in Memorandum of Appeal filed before Appellate Court below, opposite parties set up any defence to claim of Petitioner in application under Section 8 of Act that, suit land has not been correctly described. Even from order passed by trial Judge, it is clear that neither any issue was framed, nor any argument was advanced on behalf of opposite parties with regard to maintainability of pre-emption application on ground of incorrect description of suit land. Further, from impugned order passed by Appellate Court below, it is clear that none of parties to appeal advanced any argument before appellate Court below disputing correctness of description of suit land.

Therefore, in view of settled principle of law, as held by Supreme Court in case of Sheodhari Rai and Division Bench decision in case of Jugal Kishore Kundu, Petitioner is justified in his contention that appellate Court below went wrong in law to dismiss pre-emption case filed by Petitioner under Section 8 of Act by making out a new case of wrong description of suit land, which was not case urged by opposite parties as their defence, either before trial Judge or in above appeal. Further, from a perusal of operative portion of impugned order, it is clear that appellate Court below first dismissed appeal filed by opposite parties and at same time set aside judgment and order passed by trial Judge. In any event, impugned order containing contradictory directions cannot be sustained. Impugned order is set aside.


Sheodhari Rai and Ors. vs. Suraj Prasad Singh and Ors. MANU/SC/0058/1950
; Jugal Kishore Kundu (deceased by L.R.'s) and Ors. vs. Narayan Chandra Kundu and Anr. MANU/WB/0080/1982

Tags : Suit Pre-emption Validity

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