Calcutta High Court
Ashima Dutta And Anr. vs Chandra Nath Bhattacharya on 4 February, 2005
Equivalent citations: 2005(2)CHN139
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This application under Article 227 of the Constitution of India is at the instance of the opposite party in an application under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the Act) for pre-emption of the suit property on the ground of adjoining ownership and is directed against order dated 5th January, 2004 passed by the learned Additional District Judge, 2nd Court, Mursidabad in Misc. Appeal No. 42 of 2003 thereby reversing the Order No. 60 dated 16th July, 2003 passed by the learned Civil Judge (Junior Division) Additional-1st Court, Berhampore in Misc. Case No. 5 of 2001 since renumbered as Misc. Case No. 10 of 2003.
2. The case made out by the pre-emptor in the application for pre-emption may be summed up thus:
(a) The property mentioned in schedule 'Ka" of the application comprising of holding No. 127, Netaji Road, under Berhampore Municipality recordes in R.S. Plot No. 689 and L.R. Plot No. 1284 originally belonged to one Haridas Barat and Harigopal Barat. One Surendra Bhattacharya, the lather of the pre-emptor purchased the same from the aforesaid two recorded owners on the strength of a registered Kobala dated 19th February, 1942. Thereafter, the said Surendra Bhattacharya died on 3rd February, 1972 leaving his two sons, namely, the pre-emptor and one Somenath Bhattacharya and two daughters, namely, Kaberi Roy and Alokananda Ganguli and the widow, viz. Hasi Rani Bhattacharya. On the death of Hasi Rani Bhattacharya, the aforesaid two sons and two daughters of Surendra Nath Bhattacharya inherited one-fourth share each in "Ka" schedule property.
(b) The "Kha" schedule property, which is the subject-matter of pre-emption, originally belonged to one Biswanath Dutta. The pre-emptees purchased the "Kha" schedule property from Biswanath Dutta on the strength of a registered Kobala dated 19th February, 2000 for a consideration of Rs. 50,000/- but in the sale deed, the price was shown as Rs. 2,55,000/-.
(c) "Ka" schedule property is situated at the adjacent north of "Kha" schedule property. The pre-emptor had a dwelling house on "Ka" schedule property and he was residing there and happened to be an adjoining land owner of "Kha" schedule property. A fictitious deed/sham transaction had been made in respect of 108 square feet land of "Kha" schedule property in the name of one Asish Kumar Dutta, a son of Biswanath Dutta. In fact, Asish Kr. Dutta had never purchased any portion of the suit plot for a valuable consideration from Asim Dalai, the vendor of Biswanath Dutta. In order to resist pre-emption, the aforesaid fake transaction had been made.
3. The aforesaid application was contested by the present petitioners by filing written objection denying the material application made in the application for pre-emption and the defence taken by the petitioners may be summarised thus:
(a) Aswini Kr. Dalai was the original owner and occupier of "Kha" schedule property comprising in R.S. Plot No. 690, L.R. Plot No. 1286 measuring 0.052 acre of land. While he was in possession of the aforesaid property, Aswini Dalai died leaving behind his two sons namely, Asim Kumar Dalai and Asesh Kr. Dalai and one daughter Anita Basak and his wife Karunamoyee Dalai. The aforesaid heirs of Aswini Dalai had one-fourth share in "Kha" schedule property.
(b) Thereafter, those heirs of Aswini Dalai transferred the suit property to Biswanath Dutta in respect of 0.048 acres of plot No. 690 and 0.008 acres in plot No. 691 for a valuable consideration of Rs. 4, 80,000/- on the strength of a registered Kobala dated 28th January, 1999.
(c) Thereafter, on 29th January, 1999 Asim Kr. Dalai and others also transferred 0.00025 acres of land to Asish Kr. Dutta on the strength of a registered Kobala for a valuable consideration which was mentioned in red colour of the deed.
(d) Subsequently, on 11th December, 2000 Biswanath Dutta transferred some portion of the "Kha" schedule property measuring 0.034 decimal of land in plot Nos. 690 and 691 for a valuable consideration of Rs. 4, 45,000/- to the pre-emptees. Since then the pre-emptees were in possession of "Kha" schedule property measuring 0.034 acres of land in plot Nos. 690 and 691 and they become a co-sharer raiyat of the said two plots. On 19th December, 2000, Biswanath Dutta again transferred the remaining portion of the aforesaid two plots measuring 0.022 acres of land to the pre-emptees for a valuable consideration of Rs. 2,55,000/-. Therefore, the pre-emptor being neither a co-sharer nor adjoining land owner was entitled to maintain the application for pre-emption.
4. Learned Trial Judge on consideration of the materials on record held that a piece of land measuring 0.00025 acres belonging to Asish Dutta having intervened between "Ka" and "Kha" schedule property, it could not be said that the pre-emptor was adjoining owner of the land. The learned Trial Judge further held that "Ka" schedule property had not been partitioned by meets and bounds. The pre-emptor could be said to be an adjoining owner and as such, was not entitled to get an order of pre-emption.
5. Being dissatisfied, the pre-emptor preferred an appeal before the learned First Appellate Court below and by the order impugned herein, the learned First Appellate Court has set aside the order passed by the learned Trial Judge and has allowed the application for pre-emption. While allowing the appeal, the learned First Appellate Court below held that the present petitioners are not co-sharers raiyat in the suit property as they had purchased demarcated interest in the plots of land on the strength of their earlier Kobala. The learned Court of Appeal below further held that land purchased by Asish Kumar Dutta measuring 0.00025 acres of land on the strength of Exbt.-1 did not affect the right of pre-emptor to apply for pre-emption. The said Court further held that co-owner of a plot of land which has not been partitioned by meets and bounds is entitled to pre-empt the adjacent plot of land as adjoining owner.
6. Being dissatisfied, the pre-emptee has come up with the present application under Article 227 of the Constitution of India.
7. Mr. Roy Chowdhury, the learned Senior Advocate appearing on behalf of the petitioner has made two-fold submission before this Court in support of the aforesaid application :
(a) First, Mr. Roy Chowdhury contends that undisputedly there being a specific demarcated land measuring 0.00025 acres lying in between "Ka" schedule property and "Kha" schedule property owned by Asish Kumar Dutta as would be reflected from the deed itself, the "Ka" schedule property and "Kha" schedule property are not adjoining property and as such, the application for pre-emption is not maintainable.
(b) Secondly, Mr. Roy Chowdhury contends that his client having already purchased 0.034 decimal of land of the same plots on 11th December, 2000 and the pre-emptor having decided not to pre-empt the said transaction, the subsequent deed dated 19th December, 2000 in respect of remaining lands of the self-same plots cannot be pre-empted as the pre-emptees had already become co-sharers of the ''Kha" schedule property by virtue of their first deed. Mr. Roy Chowdhury points out that both the deeds dated December 11, 2000 and December 19, 2000 were registered on the self-same day and on 4th January, 2001 registration of both the deeds were completed. It would appear from the registration numbers of those deeds that the deed dated 11th December, 2000 was earlier registered. In support of such contention, Mr. Roy Chowdhury relies upon a Full Bench decision of this Court in the case of Hiru Sepai v. Sulta Sepai, reported in 1975(1) CLJ page 13.
8. Mr. Dasgupta, the learned Senior Advocate appearing on behalf of the pre-emptor/opposite party has vehemently disputed the aforesaid points raised by Mr. Roy Chowdhury.
9. As regards the first point taken by Mr. Roy Chowdhury, Mr. Dasgupta contends that merely because there is a strip of land in between "Ka" and "Kha" schedule property, such fact cannot stand in the way of the opposite party in applying for pre-emption of "Kha" schedule property once he can establish that he is the owner of the plot which is adjoining to the plot of which "Kha" schedule is a part. In other wards, Mr. Dasgupta contends that Section 8 of the Act does not demand that a pre-emptor on the ground of adjoining ownership must be the owner of the land adjoining the land which is the subject-matter of preemption. According to him, all that is necessary to maintain such application is that he must be the owner of the plot which is adjoining the plot in which the property sought to be pre-empted stands.
10. As regards the other contention of Mr. Roy Chowdhury, Mr. Dasgupta contends that on 19th December, 2000, the date of execution of the transaction sought to be pre-empted, the petitioner herein did not become co-sharer of the plot concerned on the basis of earlier deed, inasmuch as, the registration of the earlier deed was completed on 4th January, 2001, the date on which the second transaction was also registered. Mr. Dasgupta contends that on the date of filing of the present application for pre-emption, by virtue of the first transaction, the petitioner herein could not claim to be full co-sharer of the plot so as to defeat the right of the pre-emptor in respect of the second transaction as the period of limitation for filing application for pre-emption in respect of first transaction continued till four months from 4th January, 2001. Mr. Dasgupta, thus, contends that his client's application for pre-emption in respect of the second transaction was very much maintainable on 7th February, 2001 when the present application for pre-emption was filed.
11. Mr. Dasgupta further contends that merely because his client had not applied for pre-emption of the first transaction dated 11th December, 2000, for that reason he cannot be deprived of his right to pre-empt the second one as each transaction involves a fresh cause of action. In support of such contention, Mr. Dasgupta relies upon a Division Bench decision of this Court in the case of Nikhil Chandra Sanyal v. Khirod Bala Nag and Anr., reported in 1979(2) CLJ 177. Mr. Dasgupta, thus, prays for dismissal of the present revisional application.
12. After hearing the learned Counsel for the parties and after going through the materials on record I, however, do not find any substance in the first point raised by Mr. Roy Chowdhury. It is rightly pointed out by Mr. Dasgupta that merely because there exists a strip of land in between "Ka" and "Kha" schedule property, such fact cannot stand in the way of his client in applying for preemption on the ground of adjoining ownership because according to Section 8 of the West Bengal Land Reforms Act, in order to maintain an application for pre-emption an adjoining owner is required to prove that he is a raiyat possessing land adjoining the plot of land, a part of which is transferred to a person other than a co-sharer of that plot. It is, thus, not necessary that the applicant must have land adjoining the portion of the land which has been actually transferred. It will be sufficient if he is owner of the plot, adjoining the one in respect of the part of which the transaction has taken place. (See Bulu v. Nirmal, reported in 2000 CWN 776). Therefore, the pre-emptor in the present case being owner of the plot which is adjoining plot Nos. 690 and 691, the part of which is the subject-matter of the transaction sought to be pre-empted, is entitled to maintain the application for pre-emption.
13. As regards the second question raised by Mr. Roy Chowdhury, I am, however, of the view that such point is a substantial one.
14. Section 8 of the West Bengal Land Reforms Act is applicable only if a portion or share of a plot of land of a raiyat is transferred to any person other than co-sharer of the raiyat in the said plot of land. In this case, there is no dispute that prior to the transaction dated 19th December, 2000 which was registered on 4th January, 2001, the present petitioner purchased a portion of the self-same plots on 11th December, 2000 which was also registered on 4th January, 2001 and the registration number indicates that the first transaction dated 11th December, 2000 was registered earlier. Therefore, when the registration of the second transaction dated 19th December, 2000 was complete on 4th January, 2001, at that time the present petitioner had already became a co-sharer of the land. I am quite conscious of the position of law laid down by the Full Bench of this Court in the case of Hiru Sepai v. Sulta Sepai, reported in 1975(1) CLJ 13 where in paragraph 14 of the judgement, the Full Bench has in clear terms stated that so long the right of pre-emption of the pre-emptor exists or continues or does not come to an end, the pre-emptee cannot claim to be a full co-sharer of the holding so as to defeat the right of the pre-emptor so far as the second purchase made by the pre-emptee is concerned.
15. Therefore, in the present case although, on 7th February, 2001 when the present application for pre-emption was filed, the pre-emptor had right also to apply for pre-emption of the first transaction and the right of the present petitioner to resist the prayer of pre-emption as a "full co-sharer" was not complete, but the moment the limitation for filing application for pre-emption in respect of first transaction expired and the pre-emptor decided not to preempt the first transaction, the right of the present petitioner to resist the application for pre-emption of the second transaction as a co-sharer became perfect. It is now settled position of law that in order to succeed in an application for pre-emption the pre-emptor must show that his right to pre-empt existed not only at the time of transaction and institution of proceedings for pre-emption but also continued till final order was made. Therefore, in the present case, the moment pre-emptor decided not to pre-empt the first transaction and the limitation for filing such application expired, the present petitioner was eligible to resist the applications for pre-emption in respect of second transaction on the basis of his absolute right accrued earlier by virtue of the first transaction.
16. Thus, after the expiry of four months from 4th January, 2001, the pre-emptor in the present case was no longer entitled to maintain his application for pre-emption in respect of the second transaction.
17. Therefore, the learned Court of Appeal below acted illegally and with material irregularity in granting the relief of pre-emption in respect of second transaction when the present petitioner became co-sharer on 4th January, 2004, before completion of the present transaction and at the same time, his right to resist the pre-emption of the second transaction became complete on the expiry of four months from 4th January, 2001.
20. Mr. Dasgupta as a last resort tried to convince this Court that as the first transfer was for a much higher price and the same was beyond the means of the pre-emptor, therefore, his client should be permitted to pre-empt the second one even though he had not applied for pre-emption of the first transaction. I am, however, not at all convinced by such submissions. Once it is established that the present petitioner became co-sharer of the plot before completion of the second transaction and his right to resist the application for pre-emption of the second transaction also became absolute during the pendency of the application for pre-emption for non-exercise of right by the pre-emptor herein in respect of the earlier transaction, the latter is not entitled to an order of pre-emption.
21. I, thus, set aside the order passed by the learned First Appellate Court below and hold that the pre-emptor herein is not entitled to get relief of preemption, in view of the reasons indicated above.
22. The application, thus, succeeds. In the facts and circumstances, there will be, however, no order as to costs.