Calcutta High Court (Appellete Side)
Sri Dilip Kumar Dhara And Another vs Ranjit Kumar Mondal on 17 January, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 1793 of 2018
Sri Dilip Kumar Dhara and another
Vs.
Ranjit Kumar Mondal
With
C.O. No. 1794 of 2018
Dulal Chandra Nayek
Vs.
Ranjit Kumar Mondal
With
C.O. No. 3793 of 2018
Ranjit Kumar Mondal
Vs.
Dilip Kumar Dhara and another
With
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C.O. No. 3794 of 2018
Ranjit Kumar Mondal
Vs.
Dulal Chandra Nayek
For the petitioners in C.O.
Nos. 1793-1794 of 2018
and opposite parties in C.O.
Nos. 3793-3794 of 2018: Mr. Puspendu Bikash Sahu,
Mr. Sudhakar Biswas,
Ms. S. Ray,
Mr. P. Bishal
For the petitioners in C.O.
Nos. 3793-3794 of 2018
and opposite parties in C.O.
Nos. 1793-1794 of 2018: Mr. D.N. Chatterjee,
Mr. Subhas Chandra Saha,
Mr. Sukumar Sarkar
Hearing concluded on : 03.01.2019
Judgment on : 17.01.2019
Sabyasachi Bhattacharyya, J.:-
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1.The present revisional applications are taken up together for hearing in view of the thematic unity between them.
2. C.O. No. 1793 of 2018 arises out of a judgment of reversal whereby the Appellate Court reversed an order, refusing pre-emption on the ground of contiguous ownership, and granted pre-emption to the present opposite party. Such pre-emption was granted in respect of a sale deed dated March 4, 2010 executed and registered in respect of 10 Decimals of land out of 17 decimals comprised in plot No. 159 under R.L. Khatian No. 32L.R. Khatian No. 229, within Mouza Sridhar Basan within Paskura Police Station.
3. C.O. No. 1794 of 2018 arises of an identical judgment of reversal, in respect of the other 7 decimals out of the 17 decimals of plot No. 151 as referred to above. However, in this matter, the preemptee/petitioner is different from that in C.O. No. 1793 of 2018, although the preemptor/Opposite Party is the same.
4. Subsequent to the passing of the pre-emption orders by the Appellate Court, the preemptees filed applications under Section 47 of the Code of Civil Procedure in both the matters. Upon prayers for stay of the connected execution cases being made by the preemptees in respect of such proceeding, such stay was granted by the trial Court against which the preemptor as preferred C.O. No. 3793 of 2018 and C.O. No. 3794 of 2018 respectively.
5. Learned senior counsel appearing for the preemptees/ petitioners in C.O. Nos. 1793 and 1794 of 2018 argues that by virtue of two deeds of the same date, that is, March 4, 2010 the same vendor sold out different portions of the same plot in respect the respective premptees. As such, the said 4 two sales conjointly comprised of the transfer of the entire plot of land held by the vendor/Raiyat. In support of such contention, learned senior counsel cites a judgment reported at (1970) CLJ 349 (Sri Bhuban Chandra Samanta-vs.-Jamini Bhusankar). By placing particular reliance on paragraphs Nos. 3 and 4 of the said judgment, learned senior counsel argues that if, by separate deeds executed and registered on the same date, different portions, together comprising the entire holding, are transferred, the said transactions together tantamount to transfer of the entire holding. As such, in view of the entire holding being transferred, no application for pre-emption lies under Section 8 (1) of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as "1955 Act"), which contemplates only transfer of 'portion or share' of plots of lands of Raiyats.
6. By citing another judgment of a co-ordinate Bench of this Court reported at 2016 (2) CHN (CAL) 269 (Jayanta Kumar Jana vs. Mina Rani Panja) learned senior counsel for the preemptees argues that another co-ordinate Bench of this Court reiterated the same legal principal as to several transfers of different portions of the same plot on the same date, amounting to a single transfer, which disentitles the adjoining owners to claim pre-emption in respect of the transfer.
7. Learned senior counsel for the preemptees argues that in the event the entire plot of land belonging to a Raiyat is transferred, pre-emption under Section8 of the 1955 Act does not lie. This, he argues, is because of the fact that the said section envisages that only if a portion or share of a plot of land of a Raiyat is transferred to any person other than a co-sharer of a Raiyat in the plot of land the right of pre-emption arises. As such, it is argued, the transfer pertaining to a portion or share of the plot of land is a sine qua non for the entitlement to preempt under the said section. In the present case, since the two transfers-in-question conjointly gave rise to a single 5 transfer, it should be deemed that the entire land belonging to the vendor was sold and as such the said pre-requisite of pre-emption was not met.
8. In support of such contention, learned senior counsel for the preemptees cites a judgment of this Court, reported at 78 CWN 779 (Krishnapada Biswas vs. Usha Rani Naskar), wherein the learned Single Judge held inter alia that the right of pre-emption arises in favour of a co-sharer Raiyat or an adjacent owner only when a portion or share of the holding-in-question is transferred to any other person then the co-sharer in the holding. The preemptees next cite a judgment of another co-ordinate Bench of this Court, reported at AIR 1980 Calcutta 181 (Promode Ranjan Banerjee v. Nirapada Mondal), wherein it was held that the right of pre-emption is not available to a contiguous tenant under Section 8(1) of the 1955 Act in the event the entire holding, and not only a portion or share thereof, is transferred. Learned senior counsel next cites a judgment reported at AIR 1979 Calcutta 174 (Saranan Mondal and another v. Bejoy Bhushan Ghosh)wherein a learned Single Judge of this Court held inter alia that it was incumbent on the petitioner to show that there was transfer of either a portion or share of holding of a Raiyat. It was further held that in the absence of an averment to that effect, the application for pre-emption was liable to be dismissed.
9. The preemptees next cite a judgment reported at 67 CWN 633 (Nitai Chandra Das v. Sisir Kumar Das) where the Learned Single Judge, in the context of Section 26F of the Bengal Tenancy Act, 1885, (which is akin to Section 8 of the 1955 Act with regard to pre-emption), held inter alia that pre-emption lies when an undivided share or a portion of the holding is transferred.
10. The preemptees cite another judgment in the context of Section 26F of the Bengal Tenancy Act, 1885, reported at AIR 1940 Calcutta 472 (Khodeja and another v. Mahamad Abdul Khaleque and others) wherein a Division Bench of this Court held that right of pre-emption can be 6 exercised in respect of the portion acquired by the stranger purchaser in the event there were several transfers, conjointly transferring the entire holding, partly to a co-sharer and partly to stranger purchaser. The said judgment is relied on by both of the parties in support of the respective propositions, on the one hand that even in case of several transfers on several dates in respect of different shares of the same holding, those together could comprised of a single transfer if they covered the entire holding, and on the other hand that the right of pre-emption can be exercised even in such a situation. Learned senior counsel for the petitioners next submits that by virtue of the amendment of the year 2000, the scope of Section 8 of the 1955 Act was changed and instead of the term "land held by a Raiyat ", the phrase "plot of land of a Raiyat", was introduced. Such scenario was considered at length in the next judgment cited on behalf of the preemptees, reported at 2002(4) CHN 285 (Sk. Sarafat Ali and ors. Vs. Hossain Ali Molla & ors.) wherein a three-Judge Bench of this Court held inter alia that by the said amendment, the right of pre-emption under Section 8 of the 1955 Act arises only when a portion or share of a plot of land of a Raiyat is transferred to a person other than a co-sharer of a Raiyat in the plot of land. The said amendment was read in conjunction with the corresponding amendment in Section 2 (6) of the 1955 Act while considering the impact of Section 26(1)(a) of The West Bengal Land Holding Revenue Act, 1979.
11. Learned senior counsel for the preemptees cites a judgment reported at 2000(2) CLJ 423 (Gadadhar Ghosh -vs.-Sristhidhar Ghosh) where in a co-ordinate Bench of this Court held inter alia that if the entire holding was transferred, the application for pre-emption was not maintainable.
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12. The preemptees next cite a judgment of a learned Single Judge reported at1978 (1) CLJ 532 (Mishri Show -vs.-Belur Nikunjamoyee Gadar Institution & Ors.), which also held that when a share or a portion of a holding was not transferred, but the entire holding was transferred, the same did not and could not give rise to any right of pre-emption in favour of a contiguous tenant.
13. Learned senior counsel for the preemptees next submits that several judgments have been rendered by learned Single Judges of this Court, culminating in a judgment of a Division Bench as well as a connected judgment of the Supreme Court. Intending to cite the last-referred two judgments first, learned counsel places an unreported judgment rendered by a Division Bench of this Court on August 8, 2018 in connection with several revisional applications, arising out of a reference.
14. The said unreported judgment (C.O. No. 1164 of 2015 Naymul Haque @ Nainul Haque vs. Allauddin Sk. - alongwith several other matters) was passed on reference on the following question:
"Thus, there are conflicting views on the interpretation of the word 'or' in Section 8(1) of the West Bengal Land Reforms Act, 1955.While KinkarMahato (supra) interpreted the word 'or' as 'of', the subsequent decisions in Biswanath Sarkar (supra) and Sk. Sajhan Ali (supra) held the word 'or' to be disjunctive. As to whether the word 'or' should be read as 'of' as held in KinkarMahato (supra) or it should be treated as disjunctive, needs to be resolved".8
15. While deciding such question, the Division Bench considered several judgments, mostly of learned Single Judges of this Court as well as the relevant judgments of the Hon'ble Supreme Court and it was ultimately held that in view of the decision of the Hon'ble Supreme Court in the case of Chhana Rani Saha, the word 'or' has to be read as 'or' only and not 'of', in the context of Section 8 of the 1955 Act.
16. Next referring to the unreported judgment of the Hon'ble Supreme Court dated November 15, 2017, passed in Civil Appeal No. 5905 of 2009(Chhana Rani Saha -vs- Mani Pal @ Kaltu Pal), wherein the High Court, from the judgment of which the said appeal was preferred, had denied the claim of the appellant for pre-emption on the sole ground that the appellant was not a co- sharer of the land-in-question and the vendor had not attempted to sell a portion of the said land but had admittedly purported to sell the entire land.
17. Upon a discussion of the provisions of Section 8 of the 1955 Act, the Hon'ble Supreme Court held that Section confers a right of pre-emption on a Bargadar or a co-sharer of the Raiyat, who owns the land and on any other Raiyat possessing land adjoining such plot of land - one of the conditions on which a right of pre-emption might be claimed was where a portion or share of land of any other Raiyat is transferred to any person other than a co-sharer of a Raiyat in the plot of land, that is to say, if a land was held by two co-sharers and one of the co-sharers sought to transfer a portion or share belonging to him to another person, the other co-sharer might claim a right of pre-emption. But this, however, was held by the Supreme Court not to exhaust the entire Section. It was held that a similar right of pre-emption was also conferred on a Raiyat who possesses an adjoining plot of land. On such premise, the judgment of the High Court was set aside by the Supreme Court and the order of the trial Court was restored. 9
18. Learned senior counsel submits that the Division Bench Judgment of this Court, where the judgment of the Supreme Court in Chhana Rani Saha (supra) was considered, did not set out any ratio decidendi as regards a pre-emption application being maintainable in respect of an entire plot of land. The said question was not considered at all in the said judgments. As such, the said judgments, both of the Division Bench of this court and the Supreme Court, which are commonly misconstrued to have decided the issue as to maintainability of a pre-emption application in respect of sale of an entire plot, are not relevant for the purpose of the present consideration at all according, to the petitioners.
19. Learned senior counsel for the petitioners next submits that several conflicting judgments have been passed by different benches of this court in the interregnum, holding either in favour of maintainability or of non-maintainability of pre-emption applications under Section 8 of the 1955 Act in the event the entire plot of land of the Raiyat was transferred.
20. Learned senior counsel cites the following judgments in this context:
Sl. No. Citation Cause Title
(i) 2010(2)SCC 513/2010SC Jeyuaram Edu Trust -vs.- AG Syed Mohideen
671
(II) CO 278 of 2015 Calcutta AbdurRhanman -vs.- Sk. Abu Bakkar
HC
10
(III) CO 2978 of 2004 cal HC KinkarMahato -vs- SahanMahato
(IV) 2013(3) wblrCal 271 Biswanath Sarkar -vs-Salil Kumar Saha
(V) 2006 Cal 370 Bahastulliah -vs-Abdul Gaffar
(VI) 2002(4)CHN 285 Sk. Sarafat Ali -Vs-Hossain Ali Mollah
(VII) AIR 1975 CAL 1 Sultan Sepei-vs-HiruSepaei
(VIII) 2013(2)CHN 671 AjitMondal -vs.-Tapan Kr. Ghana
(IX) CO 232 of 2012 NibeditaSaha-vs.-KabitaDasgupta
(X) 1997(2) CHN 20 Prafulla Kr. Maity vs. Amal Krishna Mishra
(XI) CO No. 695 of 2001 Amarnath Rana -vs.- Ram Chandra Pal
(XII) AIR 1940 CAL 472 Khodeja -vs.- Mahama Abdul Khalek
21. It is submitted on behalf of the petitioners that the judgments referred to above, which laid down the proposition that a pre-emption application was maintainable under Section 8 of the 1955 Act even if the entire plot of land of the Raiyat was transferred, are all hit by the doctrine of per incuriam .
22. In order to elaborate on the doctrine of par incuriam, learned senior counsel cites a judgment reported at (1989)1SCC 101 (Municipal Corporation of Delhi -vs- Gurnam Kaur) wherein it was held that the only thing in a judge's decision binding as an authority upon a subsequent judge is 11 the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. It was further held in the said judgment that pronouncements of law, which are not part of the ratio decidendi, are classed as obiter dicta and are not authoritative. If the judgment was delivered on a particular point without argument or reference to the relevant provisions of law, then the subsequent Courts are not bound to follow it. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. It was further observed that a decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not be decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio. Precedents are sub silentio when those are decided without argument, without reference to the crucial words of the rule, and without any citation of the authority on the proposition concerned. Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority.
23. The petitioners next cite a judgment reported at AIR 1967 SC 1480 (B. Shama Rao v. Union Territory of Pondicherry) where a five-judge bench of the Supreme Court held that a decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein. 12
24. The petitioners next cite a judgment reported at (1991)4 SCC 139 (State of U.P. and another v. Synthetics and Chemicals Ltd. and another) it was held inter alia in the said reported judgment that 'incuria' literally means carelessness. In practice per incuriam appears to mean per ignoratium. It was held that a decision not express, nor founded on reasons and not proceeding on consideration of the issue, cannot be deemed as 'law declared'. The doctrines of per incuriam and sub silentio were explained in the said judgment.
25. The next cited judgment on behalf of the petitioners is reported at (2000) 5 SCC 488 (Arnit Das v. State of Bihar). In the said judgment, it was held that a decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined.
26. On the other hand, learned counsel appearing for the preemptor/ opposite party argued that, in the event the different sale deeds are registered at different points of time, even if on the same date, those amount to different transactions. In such a situation, as in the present case, the identity of date cannot congeal such separate transactions, at different points of time on the same date, into a conglomerate single transaction. As such, it is argued, the cardinal proposition argued by the preemptors is invalid and the transfer-in-question was in respect of portions or shares of a plot of land and not the entire plot.
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27. With reference to C.O. Nos. 3793-3794 of 2018, the trial court, by the orders impugned therein, granted stay on applications under Section 47 of the Code of Civil Procedure filed by the preemptees/ opposite parties in respect of the transferred plot of lands. It is argued that since this Court had not granted stay at the inception of the hearing of C.O. Nos. 1793-1794 of 2018, the trial court acted without jurisdiction in passing such stay orders. It is further argued that the preemptees/ opposite parties did not have a prima facie case and as such the prayer for stay ought to have been rejected by the courts below.
28. Placing reliance on a judgment of a co-ordinate bench of this court, reported at 2000 (2) CLJ 423 [Sri Gadadhar Ghosh v. Sri Sristhidhar Ghosh & Anr.], learned counsel for the pre-emptor submits that the said judgment pertained to the proposition that an application for pre-emption filed before the completion of registration is not maintainable and the finding of the appellate court to the said effect could not be said to be illegal.
29. Learned counsel for the preemptor submits that the decisions cited do not support the proposition contended by the preemptees but an overall reading of those would indicate the contrary.
30. Considering the arguments of both sides, the following two questions crop up for adjudication in the instant revision:
(i) Whether an application for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955 lies only if a portion or share of a plot of land is transferred, or even if the entire plot of land of a Raiyat is transferred by the transaction sought to be preempted.14
(ii) Whether the two sale deeds dated March 4, 2010, whereby the entire plot-in-question was transferred, but by two separate transactions, amounted to a transfer of the entire plot of land belonging to the Raiyat, or operated as two separate transfers, each pertaining to portions or shares of the plot of land.
31. Section 8 of the 1955 Act reads as follows:
8. Right of purchase by co-sharer or contiguous tenant.-
(1) if a portion or share of a [plot of land of a raiyat] is transferred to any person other than a [co-sharer of a raiyat in the plot of land], [the bargadar in the plot of land] may, within three months of the date of such transfer, or] any [co-sharer of a raiyat in the plot of land may, within three months of the service of the notice given under sub-Section (5) of Section 5, or any raiyat possessing land [adjoining such plot of land] may, within four months of the date of such transfer, apply toi the [munsif having territorial jurisdiction,] for transfer of the said portion or[share of the plot of land] to him, subject to the limit mentioned in[Section 14M,] on deposit of the consideration money together with a further sum of ten per cent of that amount;
[provided that if the bargadar in the plot of land, a [co-sharer of raiyat in a plot of land] and a raiyat possessing land[adjoining subh plot of land] apply for such transfer, the bargadar shall have the prior right to have such portion or [share of the plot of land] transferred to him, and in such a case, the deposit made by others shall be refunded to them;] [provided further that where the bargadar does not apply for such transfer and] a [co-sharer of a raiyat in a plot of land] and a raiyat possessing land[adjoining such plot of land] both 15 apply for such transfer, the former shall have the prior right to have such portion or [share of the plot of land] transferred to him, and in such a case, the deposit made by the latter shall be refunded to him;
[provided also] that as amongst raiyats possessing lands [adjoining such plot of land] preference shall be given to the raiyat having the longest common boundary with the land transferred.
(2) Nothing in this Section shall apply to-
(a) A transfer by exchange or by partition, or
(b) A transfer by bequest or gift, or hiba-bil-ewaz, or
(c) A mortgage mentioned in Section 7, or
(d) A transfer for charitable or religious purposes or both without reservation of any pecuniary benefit [for any individual, or]
(e) A transfer of land in favour of a bargadar in respect of such land if after such transfer, the transferee holds as a raiyat land not exceeding one acre (or 0.4047 hectare) in area in the aggregate.
Explanation.- all orders passed and the consequences thereof under Sections 8,9 and 10 shall be subject to the provisions of Chapter IIB] (3) Every application pending before a Revenue Officer at the commencement of Section 7 of the West Bengal Land reforms (Amendment) Act, 1972 shall, on such commencement, stand transferred to, and disposed of by, the Munsif having jurisdiction in relation to the area in 16 which the land is situated and on such transfer every such application shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provision of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972.
32. Section 1A of the 1955 Act is quoted below:
1A. Declaration as to the policy of the State.-It is hereby declared that this Act is for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution of India.
33. Article 39 (b) and (c) of the Constitution of India say:
39. Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing ... ... ... ...
(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
... ... ... ...
34. Moreover, the preamble of the 1955 Act is as follows:
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An Act to reform the law relating to land tenure consequent on the vesting of all estates and of certain rights therein and also to consolidate the law relating to land reforms in the State.
35. A conjoint reading of the aforesaid provisions and the 1955 Act as a whole indicate that one of the objects of Section 8 of the 1955 Act is to prevent fragmentation of land. Unlike Section 4 of the Partition Act or Section 22 of the Hindu Succession Act, the right of pre-emption embodied in Section 8 of the 1955 Act is not family-oriented. The first-named two statutes carve out a preferential right of purchase in favour of co-sharers of a family dwelling house and co-heirs of a family, thereby seeking to protect the unity and privacy of the family. However, the preamble, objects and reasons and the persons entitled to pre-emption, as provided in Section 8 of the 1955 Act indicate that the orientation of the preferential right in the said statute is not towards protecting the unity/privacy of the family, but hinges on a scientific and economically sound system of distribution of the land-in-question, in order to subserve the common good.
36. It is well-settled that pre-emption is an otherwise weak right, curtailing the right to property of the legitimate owner which is otherwise guaranteed by the Constitution of India. From the perspective of preventing fragmentation of the land, it would be unnecessary to curtail such lawful title of a purchaser in the event the entire plot is sold, since in such a scenario no question of fragmentation arises in the first place.
37. Hence, the proposition that an application for pre-emption under Section 8 of the 1955 Act is maintainable only when a portion or share of the plot of land of a raiyat is transferred, and not 18 the entire plot, is a sound and plausible one logically and in the context of the object of the Act itself.
38. Even otherwise, the language of Section 8 of the 1955 Act itself is very clear and categorical.
The pre-requisite of pre-emption under Section 8 (1) is "if a portion or share of a plot of land of a raiyat is transferred...".
39. Another logic in support of the said proposition is that a right of pre-emption, as per Section 8, arises only if the transfer sought to be pre-empted is "to any person other than a co-sharer of a raiyat in the plot of land...". In the event the entire plot is transferred, the question of transfer to a co-sharer loses its efficacy and becomes a redundant phrase, which ought not to have been the intention of the legislature.
40. Looking into the immediate legislative history of pre-emption, the language of Section 26F of the Bengal Tenancy Act, 1885 was also similar, being applicable to "... the holding, a portion or share of which is transferred, ...". Section 24(1) of the West Bengal Nonagricultural Tenancy Act, 1949 was much more specific and segregated the two situations. Under the said section "... (1) If the entire non-agricultural land in a non-agricultural tenancy is transferred, the immediate landlord, or if a portion or share of such land is transferred, the immediate landlord or one or more co-sharer tenants of such land..."were entitled to exercise the right of pre- emption.
41. Thus a glance at Section 24 (1) of the West Bengal Non Agricultural Tenancy Act, 1949 shows that both the situations - transfer of the entire land and of a portion or share of the land - were 19 contemplated therein and different modalities were provided accordingly. In the Bengal Tenancy Act, 1885, however, the legislature consciously provided only for the transfer of a portion or share of the holding. As such, nothing prevented the legislature from envisaging both situations in case of pre-emption under Section 8 of the 1955 Act also, like the 1949 Act. Instead, the law-makers opted for "a portion or share", initially of a holding then a plot, of land held by a raiyat.
42. Thus a comparative study of the provisions of pari materia legislation also indicates that the intention of the legislature, in case of Section 8 of the 1955 Act, was to provide for the weak right of pre-emption only in case a portion or share of a plot of land of the raiyat was transferred, giving rise to fragmentation, and not if the entire plot was sold, which would not entail fragmentation of land to necessitate undue curtailment of the lawful rights of a transferee.
43. Considering the various judgments cited by the preemptees, it is seen that all along it had been the consistent view of the Calcutta High Court that pre-emption under Section 8 of the 1955 would be attracted only if a portion or share of a holding (now plot) of land of a raiyat, as opposed to the entire holding (now plot,) was transferred. The Single Bench judgments of Krishnapada Biswas (supra), Promode Ranjan Banerjee (supra), Gadadhar Ghosh (supra) and Mishri Show (supra) as well as those reported at (2013)3 WBLR (Cal)271 [Biswanath Sarkar & Anr. v. Sunit Kumar Saha], and the three-Judge Special Bench of Sk. Sarafat Ali & Ors. (supra) all lay down and reiterate the proposition that pre-emption under Section 8 of the 1955 Act lies only if a portion or share of land of a raiyat , and not the entire plot, is transferred to the preemptee. The stray contrary views expressed are contrary to such consistent view and are per incuriam, which principle has been well-elaborated on behalf of the preemptees by citing several judgments as indicated above.
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44. In this context, it is relevant to discuss two judgments which are commonly misconceived to have settled the issue in favour of pre-emption applications being maintainable under Section 8 of the 1955 Act even when the entire plot of a raiyat is transferred.
45. The first of the two is the unreported Division Bench judgment of this court dated August 8, 2018 passed on reference in several revisional applications, including C.O. No. 1164 of 2015 [Naymul Haque alias Nainul Haque v. Allauddin Sk.]. The point of reference was:
"Thus, there are conflicting views on the interpretation of the word'or' in Section 8(1) of the West Bengal Land Reforms Act, 1955. While KinkarMahato (supra) interpreted the word'or' as 'of', the subsequent decisions in Biswanath Sarkar (supra) and Sk. Sajhan Ali (supra) held the word 'or' to be disjunctive. As to whether the word 'or' should be read as 'of' as held in KinkarMahato (supra) or it should be treated as disjunctive, needs to be resolved".
The reference was answered as follows:
"In view of the decision of the Hon'ble Supreme Court in the case of Chhana Rani Saha (supra), the word "or" has to be read as "or" only, and not "of". "
As such, the question as to whether pre-emption lay under Section 8 of the 1955 Act in case of transfer of the entire plot was never dealt with in the said Division Bench judgment at all. Thus the said judgment cannot be a precedence on that issue at all.
46. Next we must consider the judgment of the Supreme Court in Civil Appeal No. 5905 of 2009 [Chhana Rani Saha v. Mani Pal alias Kaltu Pal], dated November 15, 2017, which was the 21 basis of the conclusion of the Division Bench in Naymul Haque (supra). In the said judgment, the appellate court had reversed an order of the trial court, allowing a pre-emption application on the ground of contiguous ownership. Such reversal was on two-fold grounds - that the appellant was not a co-sharer of the land and that the vendor had sold the entire land in question and not a portion or share thereof. The Supreme Court proceeded to allow the appeal on the following premise:
One of the conditions on which a right of pre-emption may be claimed is where a portion or share of land or any other raiyat is transferred to any person other than a co-sharer of a raiyat in the plot of the land. That is to say, if a land is held by two co-sharers and one of the co- sharers seeks to transfer a portion or share belonging to him to another person, the other co- sharer may claim a right of pre-emption. But this, however, does not exhaust the entire section. A similar right of pre-emption is also conferred on a raiyat, who possesses an adjoining plot of land. Since there was no dispute that the appellant was a raiyat possessing adjoining plot of land, he was entitled to assert his right of pre-emption. In fact, he was rightly allowed the ownership of the land in question by the trial Court, since it was found that the vendor did not give due notice of sale of the land to the appellant and, in fact, did not wish to sell the land to the appellant. This aspect of the matter was completely overlooked by the High Court, which had decided the case on the basis that the vendor did not transfer a portion or share of the land in question and the appellant was not a co-sharer. In view of the undisputed position that the appellant was a raiyat, who held adjoining plot of land to the land in question, the judgment of the High Court was liable to be set aside and was set aside by the Supreme Court. As such, even in Chhana Rani Saha (supra), the question as to whether pre-emption under Section 8 of the 1955 Act lay if the entire plot, and not a portion or share thereof, was transferred was not resolved.22
47. In the aforesaid circumstances, since neither the Division Bench of this Court nor the Supreme Court decided the question at hand, contrary to popular perception, the consistent line of judgments of the Calcutta High Court, in that pre-emption under Section 8 does not lie if the entire plot is sold but is maintainable only if a portion or share of the plot of a raiyat is transferred, has to be followed in order to obviate unnecessary conflict of decisions and judicial anarchy.
48. Hence, the first question formulated in paragraph no. 30 above is decided in the following manner: an application for pre-emption under Section 8 of the 1955 Act lies only if a portion or share of a plot of land of a raiyat, and not the entire plot, is transferred.
49. As regards the second question formulated in paragraph no. 30 above, the Single Bench judgments of this Court cited in such context by the preemptees, being Sri Bhuban Chandra Samanta (supra) and Jayanta Kumar Jana (supra), are authorities in support of the proposition that several transfers of all the different portions of the same plot, if effected on the same date, comprise together a transfer of the entire plot of land of the raiyat, precluding an application under Section 8 of the 1955 Act from being filed in respect of such transfers.
50. As such, the second question is answered in the following manner:
the two sale deeds dated March 4, 2010, whereby the entire plot-in-question was transferred, but by two separate transactions, amounted together to a transfer of the entire plot of land belonging to the Raiyat.
51. Thus, in view of the answers given to the two moot questions formulated herein, the orders of the appellate courts granting preemption have to be set aside. As a necessary consequence, since 23 the preemption orders themselves do not survive, the connected applications under Section 47 of the Code of Civil Procedure Code become redundant and infructuous.
52. Hence, C.O. Nos. 1793-1794 of 2018 are allowed, thereby setting aside the impugned orders of the appellate courts and reviving the orders of the trial courts, dismissing the pre-emption applications.
53. C.O. Nos. 3793-3794 of 2018 are allowed, thereby setting aside the orders impugned therein by holding that the applications under Section 47 of the Code of Civil Procedure from which the said two revisional applications arise have been rendered infructuous, just as the connected execution cases, since the pre-emption orders passed by the respective appellate courts no longer survive in view of the observations made earlier in this order.
54. There will be no order as to costs.
55. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )