Calcutta High Court (Appellete Side)
For The vs Shyamal Kumar Mukherjee & Ors Reported ... on 5 April, 2013
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
1
03 05.04.2013
RP
W.P.L.R.T 1274 of 2002
+
W.P.L.R.T 1275 of 2002
Mr. Subhas Kr. Banerjee, Sr. Adv.
Mr. Sourav Banerjee, Adv.
.......... For the Petitioners
Mr. S. B. Bhunia, Sr. Adv.
Mr. R.P. Pal, Adv.
Mrs. Indrani Pal, Adv.
.......... For the Respondents
The subject-matter of challenge in these writ petitions is a judgment and order dated 22nd March, 2002. The facts and circumstances of the case briefly stated are as follows:
Mr. Manoranjan Santra was a raiyat having 100% share in respect of the homestead land at plot No.59 measuring 49 decimal which was also recorded in the records of the revenue department. After his death the aforesaid property devolved upon his widow, sons and daughters, which was also reflected in the revenue records, copies whereof are at pages 57 and 58 of the paper book. The aforesaid homestead land pertaining to plot no.59 measuring 49 decimal was transferred to Shri Shyama Prasad Biswas and Smt. Nilima Biswas, wife of Sri Haraprasad Biswas, by two several Deeds of 2 Conveyance both dated 12.03.1982. The petitioners, namely Gurupada Sarkar and others, claiming to be the raiyats of the contiguous land, applied for preemption under Section 8 of the West Bengal Land Reforms Act 1955 (hereinafter referred to as the said Act). Two several cases were started viz. Misc. Case No.60 of 1982 and 61 of 1982. Both the misc. cases were disposed of by the learned 2nd Munsiff at Basirhat by a judgment and order dated 4th March, 1994 allowing the prayer for preemption. One of the issues framed by the learned Munsiff was as follows:-
"Whether the entire holding or a part of holding was transferred by the Kobalas in question to the Ops."
The learned Munsiff answered the issue as follows:
"The applications for preemption contains the averment that part or the holding was transferred. It is true that during evidence the applicants have not specifically mentioned that part of the case holding was transferred, though, in his examination-in-chief, PW 1 has denied the case of the Ops. That Hara Prasad, husband of Nilima Biswas, purchased the entire case holding in the benami of his wife Neelami and his brother Shyama Prasad Biswas. It is pertinent to note that during cross-exam., PW 1 has to face no such suggestion that the entire holding instead of part of holding was transferred to the OP by the disputed kobala. Neither OP 1 and OP2 has made any whisper about the alleged transfer of entire case holding of Archana Santra and ors. Ld. Advocate for the OP has relied on one attested LR parchas as (Ext.6). In support of his contention that part of holding of Archana Santra and ors. had been transferred by the disputed kobalas. Ext.6 is the LR parcha which shows that Archana Santra is a rayiot in respect of some other 3 property. The attested LR parchas (ext. C) filed by the Ops also shows that the names of Archana Santra and ors. being the heirs of Manaranjan Santra have been recorded in the LR Khatian no.435 in respect of some other plots.
Now, it is well settled in the context of the amendment of the definition of 'holding' that all the lands of any persons scattered at different places in West Bengal constitute the single of holding of that persons. So, in the absence of any strong and cogent evidence to the contrary, no reasonable ground is found for disbelieving the case of the applicants that apart of the holdings of Archana Santra and ors. was transferred to the Ops. By the impugned kobalas (Ext.D and D1).
Next comes the question of one independent transaction as urged on behalf of the Ops. The disputed deeds (Ext.D and D1) are the regd. Instruments of transfer which prima facie show that on the same date Shyama Prasad Biswas and Neelima Biswas purchased 24½ decimal land respectively in respect of case plots by two separate deeds. OP Neelima Biswas is the wife of the elder brother of the OP Shyama Prasad Biswas. OPW1- Neelima Biswas has stated in her evidence that the case land was purchased by her husband in her name. In cross-exam she has stated affirmatively that her husband filed the W/O after putting his signature thereon. But, casting judicial notice on the W/O in Misc. 61/82 it appears that the W/O bears the signature of Neelima Biswas, the OP. So, it is difficult to believe the evidence of Neelima Biswas that it was her husband who purchased the case land. Her husband has not been examined. OPW1 has categorically stated that her husband will not depose in this case. OPW2 has stated that the negotiation for purchasing the entire property was held between his elder brother- Hara Prasad and Archana Santra. But curiously enough neither Hara Prasad nor Archana has been examined to prove that there was negotiation for single transaction. OPW3- Sudeb Ch. Das, a deed writer, has been examined to prove that there was a single transaction. He is an attestating witness of the Kobalas (Ext.D & D1) and he is also the scribe of one of the deeds. On the same day, both the deeds were written and stamps were purchased. So, the plea that for a single 4 deed stamp paper could not be produced appears to be not credible. OPW3 has deposed in his cross-exam that they have not govt. circular or any document to show that the vendor cannot supply stamp paper to a person in a single day for the preparation of a deed valued at Rs.12,000/-.
After having taken into consideration the evidence on record I do not find any reasonable ground for holding that both the impugned Kobalas (Ext.D & D1) were the outcome of a single transaction between Haraprasad and Archana. Being regd. Instrument of transfer, each of the two impugned kobalas carried with it the presumption that the apparent represents the real state of affairs unless rebutted by cogent evidence. After having considered the fact and circumstances I am inclined to hold that the Ops. have miserably failed to rebut the presumption which each of the two impugned kobalas carries with it."
Aggrieved by the judgment and order of the learned Munsiff an appeal was preferred before the Additional District and Sessions Judge, 2nd Court, North 24 Parganas at Barasat which was disposed of by a judgment and order dated 13th December, 1999 allowing the appeal and setting aside the order passed by the learned Munsiff.
Aggrieved by the aforesaid order the preemptor approached the learned Tribunal. The learned Tribunal on its part by a judgment and order dated 22nd March, 2002 dismissed the application.
5Aggrieved by the order of the learned Tribunal the preemptors have approached this Court assailing the judgment of the learned Tribunal. The learned Tribunal rejected the prayer for preemption on the ground that preemption can be claimed only in respect of a agricultural land and that preemption cannot be claimed on the ground of vicinage under Section 8(1) of the said Act in respect of a bastu land.
Mr. Banerjee learned Senior Advocate appearing for the writ petitioner submitted that the views expressed by the learned Tribunal are patently contrary to the section permitting exercise of rights of preemption. Section 8 of the West Bengal Land Reforms Act (hereinafter referred to as the said act) insofar as the same is relevant for our purpose provides 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 rayiat] 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 [Munisif 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 percent of that amount:"6
Mr. Banerjee also drew our attention to the definition of the expression land appearing in Section 2 (7) of the said Act which is as follows:-
" 'land' means land of every description and includes tank, tank-fishery, fishery, homestead, or land used for the purpose of livestock breeding, poultry farming, dairy or land comprised in tea garden, mill, factory, workshop, orchard, hat, bazar, ferries, tolls or land having other sairati interest and any other land together with all interests, and benefits arising out of land and things attached to the earth or permanently fastened to anything attached to earth;] Explanation.- "Homestead" shall have the same meaning as in the West Bengal Estates Acquisition Act, 1953 (West Ben. Act 1 of 1954)".
Mr. Banerjee contended that the expression 'land' has been given a wide connotation. There was as such no justification on the part of the Tribunal to restrict the right of preemption to the agricultural lands alone. He in support of his submission relied on a Division Bench Judgment of this Court in the case Niranjan Khanra & Anr. Vs. Shyamal Kumar Mukherjee & Ors reported in 1993 CWN 289. He drew our attention to paragraph 7 of the judgment wherein the following views were taken:-
"It is therefore, obvious that under the provisions so substituted by the Amendment Act of 1981, non- agricultural lands would become 'lands' and the holders thereof would become 'raiyats' under and with the meaning of the Land Reforms Act of 1955 and in view of the over-riding effect given to the provisions of the Land 7 Reforms Act under Section 3, even as it stood before, and now further fortified by Section 3 as substituted, right of pre-emption in respect of all lands, agricultural or non- agricultural, would be governed and regulated by Sections 8, 9 and 10 of the Land Reforms Act of 1955."
He also drew our attention to a judgment of this Court in the case of Prafulla Kumar Maity Vs. Amal Krishna Mishra & Ors. reported in 1997 (II) CHN 20 wherein the following view was taken:-
"Accordingly, as per the said substituted s. 2 (10), a "raiyat" may also hold apart from agricultural and/or homestead land, land which is being used for non- agricultural purpose and such land would also form a part of his holding and hence the same can also be pre- empted under s. 8 of the West Bengal Land Reforms Act, 1955 being the land of a "raiyati holding".
He also drew our attention to the judgment in the case of Abdulla Kabir Vs. Md. Nasiruddin reported in AIR 1989 SC 931 wherein the following view was taken:-
"The observation of the High Court has been made wrongly inasmuch as the High Court did not take notice of the amended provision of the West Bengal Non- Agricultural Tenancy Act, 1949 amended by Act 8 of 1974. Section 2(4) (a) defines non-agricultural land as land used for purposes not connected with agriculture or horticulture but does not include a homestead to which the provisions of the West Bengal Land Reforms Act, 1955 apply. Taking notice of this provision it is crystal clear that homestead land does not fall within the province of non-agricultural land both under the Non-Agricultural Tenancy Act as well as under the West Bengal Land Reforms Act, 1955. In that view of the matter the whole basis of the observation of the High Court to the effect that 8 "where the holding is recorded as bastu and the non- agricultural user is also evident, as appearing from the revisional record of rights wherein it has been stated that there are two huts standing thereon, the land cannot be treated as land to which the provisions of the Land Reforms Act will be applicable as the Act applies to agricultural lands only" is wrong. The judgment is per incuriam. As has been stated hereinbefore that the definition of land as given in the West Bengal Land Reforms Act, 1955 refers to agricultural land and includes homestead. Explanation to sub-section (7) of Section 2 further provides that "Homestead shall have the same meaning as in the West Bengal Estates Acquisition Act, 1953." Section 2(g) of the West Bengal Estates Acquisition Act, 1953 defines:-
"Homestead" means a dwelling house together with any courtyard, compound, garden, out-house, place of worship, family graveyard, library, office, guest-house, tanks, wells, privies, latrines, drains and boundary walls annexed to or appearing to such dwelling house;"
Therefore, on a conspectus of the aforesaid provisions, it obviously follows that homestead of an agriculturist even though the same is included in the holding of the raiyat but not on the agricultural land still it is to be treated as agricultural land being the homestead of the agriculturist under the provisions of the West Bengal Reforms Act read with West Bengal Estates Acquisition Act and West Bengal Non-Agricultural Tenancy Act. Therefore, the application under Section 8 of the West Bengal Land Reforms Act filed by the respondent -petitioner as a co- sharer of the said holding for pre-emption of the land purchased by a stranger i.e. the appellant is maintainable under law as has been rightly held by the lower Appellate Court as well as High Court. The application for pre- emption under Section 8 of West Bengal Land Reforms Act was properly allowed by lower Appellate Court and the said order was maintained by High Court. There is no infirmity in this finding and we uphold the same."
9Mr. Bhunia, learned Senior Advocate appearing for the respondent submitted that the right of pre-emption is claimable under Section 8 of the said Act only in respect of a transfer of a portion or a share of a plot of land. In this case it is not disputed that the plot No.59 contained 49 decimals of land and the entire 49 decimals of land was sold in favour of Smt. Nilima Biswas and Sri Shyama Prasad Biswas by two several Deeds of Conveyance executed on the same day. He contended that when the plot of land in its entirety has been conveyed the right of preemption cannot be exercised.
Mr. Banerjee, learned Senior Advocate appearing for the preemptors contended that the plot of land might have been conveyed in its entirety but such conveyance is in parts and conveyance of each part is a separate transaction. Therefore it cannot be said that Section 8 of the said Act shall have no manner of application. It cannot be said that a share of the plot no.59 was not conveyed to Smt. Nilima Biswas nor can it be said that a share of the plot no.59 was not conveyed to Shayama Prasad Biswas. Mr. Banerjee contended that if these two propositions are correct, why should it be held that the prayer for preemption is not maintainable?
No doubt that the submission of Mr. Banerjee is correct that a part of plot no.59 was conveyed to Shyama 10 Prasad Biswas and another to Nilima. But the fact remains that the plot no.59 in its entirety was conveyed by two several deeds of conveyance executed on the same day. The purchasers are family members. Nilima is the wife of the elder brother of Shyama Prasad Biswas. Detailed evidence in that regard was adduced before the learned Munsiff which we have noticed above. It is, therefore, not possible for us to hold that only a part of the plot no.59 was conveyed and therefore the right of preemption could be exercised. The learned Munsiff considered the matter in the light of the expression 'holding'. Whereas the expression used in Section 8 of the act is 'plot of land'. It was accepted when the word 'holding' was there in Section 8 of the Act that holding of a raiyat would mean all the plots of land held by the Raiyat throughout the State. But that word 'holding' was substituted by the expression 'plot of land'.
Mr. Bhunia drew our attention to a judgment of a learned Single Bench of this Court in the case of Sri Bhuban Chandra Samanta Vs. Jamini Bhusan Kar & Ors. reported in 1970 CLJ 349 wherein the following reasoning was adopted:-
"When a raiyat transfers the entire holding to different persons in specific shares or portions, the transfer deeds having been executed on the same day and registered simultaneously on the same day and not on different dates, such transfers, in my view, are tantamount to a single transfer in respect of the entire holding, as if the transferees jointly purchased the holding by a single document, each purchasing a specific share or portion, so 11 that there is no question of any right of pre-emption of a raiyat possessing land adjoining the holding, under Section 8(1) of the Act."
Mr. Banerjee pointed out that this judgment was delivered in 1970 which did not lay down the correct law because the learned Judge himself took a different view while sitting in a Division Bench in the case of Debendra Nath Karak Vs. Rakhal Paul & Ors. reported in 1986 (I) CHN 183. He relied on paragraph 6 of the judgment wherein the following views was taken:-
"The said Act came into force with effect from April 14, 1981, that is, before the date of transfer of the disputed plot by the vendors of the opposite party no.1. In view of the amendment made by the said Act, the definition of the word "holding" in S.2(6) will be read as meaning the land or lands held by a raiyat. The effect of the amendment is that whether the land or lands held by a raiyat can be treated as a unit for assessment or revenue or not, such land or lands will constitute a holding. As for instance, a raiyat may have lands in different districts in West Bengal. All his lands taken together will constitute a holding. Needless to say, all these lands cannot be treated a unit for assessment. So, after the Act came into force, Becharam had other lands besides the disputed land. In view of the amendment, the disputed plot alone did not constitute a holding, but all the lands of Becharam taken together would constitute a holding. In the Courts below, the amended definition was not at all adverted to. It is not disputed that Becharam had other plots of land besides the disputed plot. In view of the amended definition of 'holding', it must be held that the disputed plot constituted only a portion of the holding of Becharam, and, accordingly, the application for pre- emption was quite maintainable. As has been pointed out before, the Courts below overlooked the amended definition of the word 'holding' and they proceeded on the basis of the unamended definition of that word."12
Mr. Banerjee is right in his criticism. But the fact remains that 12.03.1982 when the plot was sold the word used in Section 8 was 'plot of land'. Therefore the concept of a holding consisting of all the pieces of land held by a raiyat did not apply. Before us the question is whether the plot no.59 was conveyed fully or partially. That question cannot but be answered by saying that the plot no.59 was conveyed fully. Therefore the right of preemption is not available.
For the aforesaid reasons both these writ petitions fail and are dismissed. Parties shall however bear their own costs.
Urgent xerox certified copy of this order, be delivered to the learned Advocates for the parties, upon compliance of all formalities.
( Girish Chandra Gupta J. ) (Tarun Kumar Das J.)