Calcutta High Court (Appellete Side)
Sk. Samser Ali & Ors vs Serina Bibi & Anr on 20 February, 2012
Author: Harish Tandon
Bench: Harish Tandon
1
In The High Court At Calcutta
Civil Revisional Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
C.O. No. 680 of 2009
Sk. Samser Ali & Ors.
-vs-
Serina Bibi & Anr.
For the petitioner : Mr. Kishore Mukherjee
For the Opposite Party No. 1 : Mr. Sabyasachi Bhattacharya
Mr. Chandradoy Roy
Mr. Shahnaj Tareq Mina
Heard on : 01.11.2011, 15.11.2011 & 07.12.2011
Judgment on : 20.02.12
HARISH TANDON, J.:
This revisional application is directed against the judgment and order dated 12.2.2009 passed by the learned Judge, Special Court (EC Act)-cum Additional District Judge, Hooghly in Misc. Appeal No. 25 of 2006 2 reversing those judgment and order dated 27.2.2006 passed by the Civil Judge (Jr. Division), Hooghly in Misc. Case No. 33 of 2004.
This revisional application is filed at the behest of the pre-emptor challenging an order of the first appellate court by which his application for pre-emption under section 8 of the West Bengal Land Reforms Act is rejected.
Before dealing with the points canvassed before this court short facts are necessary to be recorded.
By a deed of sale executed on 10.8.1999 the opposite party no. 2 sold the "Ka" schedule property which is the tank to the opposite party no. 1 for a consideration of Rs. 1,50,000/- and the said sale deed was duly registered on 22.9.1999. The application under section 8 of the West Bengal Land Reforms Act was filed by the petitioner on 19.8.2000. The petitioner asserted the right of pre-emption on the ground that the entire plot being plot no. 633 was comprised of 224 satak of which 144 satak is a tank and the rest 80 satak is an embankment, breviously, the opposite party no. 2 sold 26 satak of embankment land comprised in plot no. 633 to the petitioners and it is alleged that by virtue thereof the petitioners 3 became the co-sharer in respect of the said plot. It is further stated that the pre-emptee/opposite party no. 1 has inflated the consideration money in the said sale deed whereas the actual cost of the land sold to the opposite party no. 1 being "Ka" schedule property is Rs. 75,000/-and deposited the said sum of Rs. 75,000/- together with the statutory compensation of 10% in the proceeding.
The opposite party no. 1 contested the said proceeding by contending that prior to the purchase of the "Ka" schedule property the petitioner was offered to purchase the same and on refusal the opposite party no. 2 sold the property. It is further stated that the petitioner was given an oral notice of such transfer and as such the said pre-emption proceeding having instituted beyond the prescribed period is not maintainable. It is stated that the petitioners are neither the co-sharers nor the owner of the adjoining land as the tank is not a land within the meaning of the West Bengal Land Reforms Act.
The trial court found that the petitioners are the co-sharers in respect of the plot no. 633 and no notice under section 5 of the West Bengal Land Reforms Act was served upon the petitioner and as such the proceeding initiated within a year from the date of completion of the 4 registration is maintainable under Article 137 of the Limitation Act. It is further held that the tank is included within the definition of a "land" assigned in section 2 (7) of the West Bengal Land Reforms Act and in absence of any deed or the contingencies enumerated under section 14 of the said Act it cannot be said that there has been a valid partition. However, the trial court rejected the contention of the petitioner that the actual price of the land being "Ka" schedule property is Rs. 75,000/- and not Rs. 1,50,000/- as has been shown in the sale deed and thereafter directed the petitioners to pay the balance consideration money together with the statutory compensation in the court.
The pre-emptee being the opposite party no. 1 assailed the said order under section 9 of the said Act before the District Judge, Hooghly who reversed the said judgment and order by which an application for pre- emption was allowed. It is held by the court below that under section 5 of the said Act registration shall not be completed unless a notice together with prescribed fees and the other particulars are furnished which necessarily raised presumption that in the event the registration is complete, the notice must be deemed to have been served upon the persons who has a semblance of right to claim pre-emption under section 8 of the said Act. By making the aforesaid observations the court below 5 held that the registration of the sale deed raises a presumption of due service of notice under section 5 of the said Act and therefore the proceeding being initiated beyond the period prescribed in section 8 of the said Act is not maintainable. The court below further held that since the entire consideration money together with statutory compensation is not deposited, the petitioner is not entitled to a pre-emption in her favour. The court below found that the opposite party no. 2 was owning 144 satak of land which has been sold by him and as such it cannot be said that a portion or a part of the land is sold to attract the provision contained under section 8 of the West Bengal Land Reforms Act.
Mr. Kishore Mukherjee, learned Advocate appearing for the petitioner submits that out of 224 satak comprised in plot no. 633, 26 satak of embankment was sold to the petitioner by the original owner and thus the petitioners became the co-sharer along with the original owner in respect of the said plot. Subsequent sale of the remaining portion of the said plot no. 633 by the original owner to the opposite party no. 1 creates a right in favour of the petitioners to claim the pre-emption as a co-sharer under section 8 of the West Bengal Land Reforms Act. He further submits that the partition of the plot of land can only be effected under section 14 of the 6 said Act and in absence of any contingencies enumerated therein it cannot be said that the plot was partitioned.
He further submits that section 5 of the said Act provides for service of notice in a prescribed manner. It has been further provided in Rule 4 of the West Bengal Land Reforms rules, 1956. In absence of the service of notice in a prescribed manner the court shall not presume service of valid notice in any other manner. He strenuously submits that the registration of the sale deed may raise a presumption of filing of the notice together with the transfer fees but it does not raise a double presumption as to its due service and placed reliance upon the judgment of this court in case of Saralabala Roy Vs. Subodh Chandra Das & Ors. reported in 4 Dhaka Reports 50. By contending that the non-deposit of the entire consideration money when a bona fide dispute as to the actual value of the property sold is raised, the preemption application cannot be dismissed. Mr. Mukherjee relies upon a judgment of the Single Bench of this court in case of Dwijapada Halder Vs. Profulla Chandra Halder reported in AIR 1972 Cal 409 which is affirmed by the Division Bench reported in 76 CWN 784 7 Mr. Sabyasachi Bhattacharya, learned Advocate appearing for the opposite party submits that the entire property is sold by the opposite party no. 2 by the several deeds and as such the preemption under section 8 of the West Bengal Land Reforms Act is not maintainable. He further submits that the registration shall not be completed unless a notice along with transfer fees and other particulars are furnished. The completion of the registration presupposes that the notice was filed and have been served upon the petitioners by referring section 114 (g) of the Evidence Act. He thus submits that in absence of any evidence for rebuttal of such presumption the petitioner cannot succeed. Lastly he submits that the notice is presumed to have been served upon the petitioners and they cannot claim themselves to be the non-notified co-sharer to wriggle out of the rigorous provision contained under section 8 of the West Bengal Land Reforms Act.
Having considered the respective submissions it is undisputed that the plot no. 633 comprised in 244 satak out of which 144 satak is a tank and the remaining 80 satak is an embankment. Admittedly the petitioners purchased 26 satak out of 80 satak prior to the purchase by the opposite party no. 1. The petitioner filed the record of rights before the trial court being Ext. 6 to show that their name has been recorded in respect of the 8 said plot no. 633 as co-sharer. From the sale deed produced by the petitioner whereby the opposite party no. 2 sold 3 satak of land to one Manowara Bibi, the petitioner no. 2 herein. It appears that a well- demarcated portion has been sold. When an original owner has sold the well-demarcated portion it does not attract section 14 and the said purchaser does not become the co-sharer along with the original owner. Admittedly the remaining portion of the larger property owned by the opposite party no. 2 being the original owner sold the same to the opposite party no. 1 and thus it cannot be said that a portion or a part of the plot of land was sold.
To attract provisions under section 8 of the West Bengal Land Reforms Act there must be a sale of a portion or a part of the entire plot of land which would be evident from the language assigned in section 8 of the said Act which reads thus :
"Sec 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 fourt months of the date of such transfer, apply to the Munsiff 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:9
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 such 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 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 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."
Section 14 has a restrictive applicability where the partition amongst the co-sharer can only be effected by an instrument or by a decree or order 10 of the court. The benefit under the said provision can be enjoyed if there is no dispute as to the co-sharership and not otherwise. Thus the petitioner cannot be said to be a co-sharer. Though after the finding as to whether the petitioners are the co-sharers or not the other question as to the non- notified co-sharer has became redundant but I find that some discussion is necessary to dispel the doubts in this regard.
Section 5 of the West Bengal Land Reforms Act provides that to make the co-sharer bound by the transactions a notice is imperative. There is a prescribed mode under the West Bengal Land Reforms Rules 1956. If the notice is directed to be served in a prescribed manner it has to be served in such manner or not otherwise. The aforesaid principle has been laid down by the Privy Council in case of Nazir Ahmed Vs. Emperor reported in AIR 1936 PC 253 which has been consistently followed by the three judges bench of the Supreme Court in case of Bhavnagar University vs. Palitina Sugar Mill Pvt. Ltd. reported in AIR 2003 Supreme Court 511 in these words:
"40. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The state and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof."
Therefore the plea that the oral notice was given is not sufficient. 11
The contention of the petitioner that there cannot be a double presumption one relating to the filing of the notice together with transfer fees as well as other particulars and other relating to the service of the said notice.
On the reading of the provision contained under section 5 of the said Act it contemplates the filing of the notice, deposit of the transfer fees and furnishing of the particulars without which the registration could not be completed.
The statutory presumption can be drawn once the registration is complete that there has been a due compliance of the provision contained therein but it does not contemplate a situation that the registration shall not be complete unless the notice as envisaged therein is duly served upon the co-sharer or a person interested. The language employed in section 8 makes imperative to defeat the claim of pre-emption beyond the statutory period, that the notice must be served upon the co-sharer. The aforesaid principle has been considered and applied in case of Saralabala Roy (supra) in these words :
"As the decision in Islam Khatun's case stands, the main point to be looked into is whether the landlords had had notice of he transfer. The deed having been registered, a presumption can be drawn in the absence of any evidence to the contrary that the landlords' fee and notices were duly put in. it seems that the parties 12 did not adduce any evidence regarding service of notice and deposit of landlords' fee and the District Judge appears to have drawn the inference of service of notice from the fact of registration. But he was not competent to draw a due presumption. Registration gives rise to a single presumption, namely, that of the filing of prescribed fees and notices. It does not empower the court to stretch the presumption up to the extent of service of the notice. Landlord's knowledge of the transfer according to the decision in the Islam Khatun's case is a vital question but the lower appellate court's finding not being according to the law, the case must go back to that court for a fresh hearing."
Mr. Sabyasachi Bhattacharya, learned Advocate appearing for the opposite party did not dispute the proposition of law that the deposit of the entire consideration money if some disputes to its genuinity is raised being sine qua non to an application under section 8 of the West Bengal Land Reforms Act. It has been a consistent view of this court that the deposit of the entire consideration money does not entail the dismissal of an application for pre-emption. Reference can be made to the Division Bench judgment rendered in case of Dwijapada Halder (supra).
Since I am of the opinion that the petitioners are not the co-sharers the application under section 8 of the West Bengal Land Reforms Act on such assertion is not maintainable. Although I do not approve the findings of the court below on other points but I am in agreement with the finding 13 of the court below that the petitioners are not the co-sharer of the said plot of land.
I do not find any fault in the impugned judgment and order. The revisional application, therefore, fails.
There shall however be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.) LATER:
The petitioner shall be at liberty to make an application before the trial court for withdrawal of the amount deposited, in terms of Section 8 of the said Act. If such application is made, the trial court would release the said amount within six weeks therefrom.
(Harish Tandon, J.)