Bishnu Pada Maity vs Deepak Kumar Mondal & Anr on 30 March, 2017

[Cites 10, Cited by 0]

Calcutta High Court (Appellete Side)

Bishnu Pada Maity vs Deepak Kumar Mondal & Anr on 30 March, 2017

4. The petitioner's case was that, the entire 34 decimals of land in plot no.200 belonged to one Kalisankar Bhunia and he sold 13 decimals of such land to one Kalyani Maity as well as 11 decimals of land to Kumkum Das on 17.12.1992 and the rest portion of 10 decimals of land to the applicant by registered deed on 24.12.93. The entire plot number 200 was never partitioned by metes and bounds, and so the petitioner was co-sharer to other transferees. Moreover he got right over plot no.201 which is adjacent to plot no.200. Said Kumkum Das thereafter transferred her entire share to Deepak Mondal (O.P.No.1) by a registered deed dated 31.05.2001 without serving any notice to this petitioner for purchasing the same. Therefore Deepak Mondal being a stranger purchaser and since the property was transferred to him without serving any notice he filed this case for pre-emption against the opposite party by making the statutory deposit.

5. The case of the pre-emptee/opposite party was that Kalisankar Bhunia transferred specific demarcated portion of the entire plot in three parts. Accordingly the purchaser took possession of the specific demarcated portion by the respective purchase. So it was contended that there was no question of further partition on the same plot no. 200. The opposite party accordingly contended that since his vendor had sold thereafter her entire share i.e. the subject property, the petitioner cannot claim pre-emption in view of the provision under Section 8 of the Act. On the same defence the opposite denied status of the petitioner as adjoining land owner to the subject property. On the contrary, the opposite party had set out his status as Bargadar in the subject property for which also he denied the right of pre- emption as sought for by the appellant.

6. It is pertinent to note that in compliance with the order of this Court the opposite party Deepak Kumar Mondal filed some documents, namely, the deed dated 17th December, 1992 by which Kalisankar Bhunia sold 11 decimals property in the middle (stretched from north to south) out of 34 decimals of the suit plot no. 200 to opposite party no.2 Kumkum Das. Said Kumkum Das transferred the self-same property in entirety to the opposite party No. 1 which is the subject matter of the case. That apart copy of R.S. Khatian No. 52 L.R. Khatian No. 258 of Mouza map covering the subject plot, the pre- emption application written objections thereto as filed by the opposite parties along with the oral evidence as were adduced have been kept on record for future reference without taking any cognizance of the text of affidavit-in- opposition for which no liberty either was sought for, or were ever granted.

7. Learned First Appellate Court in affirming the order of the learned Civil Judge declining to grant order of pre- emption decided the Misc. Appeal under reference on three points, "1) the limitation, 2) the status of the petitioner and 3) the nature of transfer." Learned Appellate Court rightly took note that in the statute the limitation period is fixed for three months to file pre-emption case by co-sharer, but for adjoining land owner it is fixed for four months. Since in this case the petitioner filed the petition taking both the grounds so it cannot be said outrightly that the petition was barred by limitation.

8. It is pertinent to mention that the impugned deed, sought to be pre-empted, was dated 31.05.2001. The pre-emption of application was filed on 25th September, 2001, law is set at rest that registration of a deed of transfer becomes complete when it is copied in the volume of the Registry Office and necessary entries are also made on such deed with reference to book number, volume number, pages with date of such entry. Learned Counsel for the petitioner submitted that registration of the impugned deed of transfer was completed on 30.06.2001, which fact was not disputed. Before this Court also no argument is advanced disputing that the registration of such deed sought to be pre-empted was not completed, meaning thereby, filing of the pre-emption case was not premature. On examining the judgment of both the sub-ordinate Courts, I also could not find consideration of any such defence bearing the plea of sufferance of the pre-emption case for not completion of registration of the impugned deed. But learned Appellate Court is noticed to have persuaded with a wrong perception, that Article 137 of the Law of Limitation would apply for computation of limitation. It has been set at rest so far by this Court in the case of Amal Kumar Ballav & Anr. Vs. Juran Krishna Mazumdar reported in 2017(1) Calcutta Law Journal (Cal) 238 at page 244 in paragraph 18 that Article 97, and not Article 137 of the Limitation Act, shall apply.

9. Be that as it may, the application for pre-emption having been filed only on 25th September, 2001 that is within four months, of course, as not notified pre-emptor the question of limitation was rightly decided in favour of the petitioner by the Learned Courts below.

10. Section 14 of the West Bengal Land Reforms Act has provided that partition of a plot of land among its co- sharers shall be made either by a registered instrument, or, by a decree of Court. At the very outset it is made clear that though one defence like Bargadarship in the subject plot was pleaded by the opposite party No.1, but said right was never pursued.

11. Therefore, the pertinent question remains as to whether both the sub-ordinate Courts correctly held or not, that the petitioner was neither a co-sharer nor adjoining land owner. In the written objection specific defence was taken by the opposite party that while Kalisankar had sold three strips of land of the subject plot No.200 by making specified boundaries, then, it would be deemed that there was partition. But nonetheless of transfer by Kalisankar Bhunia mentioning specific strip of land of subject plot no.200 the status of co-sharership between those transferees from Kalisankar Bhunia was not severed for want of any document in terms of Section 14 of the W.B.L.R. Act. It was argued by the opposite party that by the impugned deed while the opposite party no.2 had sold out her entire purchased portion i.e., entire share of the subject plot in favour of the opposite party No.1, then under Section 8 of the pre- emption application would not be applicable. Learned Trial Court accepted this contention. The Learned Appellate Court also affirming the view of the learned Trial Court dismissed the appeal holding that the petitioner neither was co-sharer nor adjoining land owner, since the entire share was transferred by the vendor of the opposite party no.1, and in doing so, learned Appellate Court riled upon a decision of this Court reported in 2005 (3) Indian Civil Cases page 5.

12.Since in examining the veracity, if any, in the decision making process the materials on record have been placed on test, this Court inclines to set out paragraphs 3,4 & 6 from evidence-in-chief of Deepak Kumar Mondal, examined as O.P.W-1 which are as follows:-

"Para 3:- The Said owner Kalisankar Bhunia sold the eastern Portion of area 13 decimals to one Kalyani Maity by Regd. Sale deed dtd. 17.12.92.

Para 4:- Though the side of the transfer portion is noticed in the said deed but in fact no specific demarcated land was transferred by the said deed.

Para 6:-In the said deed though there is mention about the specific side in schedule and hand sketch Map attach in the deed but the seller and purchasers of the deed not possessed the said land in the said Manner."

Said O.P.W1 again in cross-examination admitted by saying, "it is a fact that there is no partition by registered deed or through court in respect of case plot amongst the co-sharer. After purchasing the share of plot of land from opposite party no.2. I have gone there for possession of the same."

13. This story of partition could have been accepted if any partition would have been established in between Kalisankar Bhunia and his co-sharers in terms of Section 14 of the Act, or, even subsequently in between the three purchasers who purchased three strips of the subject plot No.200 from Kalisankar Bhunia though with specified location. Therefore, in no sense it can be accepted that there was ever any partition in respect of the subject plot. The Learned Appellate Court, of course, did not take any contrary view, so far as the status of co- sharership between those three purchasers who had purchased the share from Kalisankar Bhunia. But since "entire share" was sold by the opposite party no.2 to the opposite party no.1, therefore, with the aid of the decision under reference learned Appellate Court held that the petitioner would not be entitled to exercise the right of pre-emption as co-sharer.

14. To settle the dispute on such legal aspect paragraphs 23 and 24 from the case of Amal Kumar Ballav Vs. Juran Krishna Mazumder (supra) on which learned Counsel for the petitioner very much riled upon are set out:-

Paragraph "23 Let me read and interpret the relevant words from within Section 8 of the Act to determine the right of pre-emption which is applicable to whom and when. The words, "a portion or share" of a plot i.e. the word "or" in the middle, of " a portion" and "share" as it stands, has been put to signify only "or" and not 'and' in any sense. Now if it is read to interpret the intention of legislature by keeping "or" between "a portion" and "share" then it may be read like this viz., a portion of a plot of land means, even may be in fraction out of share what belongs to a raiyat in the plot of land, or, "share of a plot of land" means the entire share in the plot of land, whatever would be transferred to a stranger, is subject to pre-emption.

Paragraph 24:-The right of pre-emption is known as a weak right. But equally this is the only way to adopt by a non-notified co-sharer or adjoining land owner to prevent an undesirable stranger purchaser from entering into the arena of co-sharership in the plot of land or a raiyat possessing land adjoining such plot of land. Therefore it would be a wrong proposition of law that any person, otherwise entitled to pre-empt under Section 8 of the Act, would be rejected or refused on the fallacy that the entire share of the plot was transferred, as already settled by this Court of co-ordinate Bench in the case of Ajit Mandal and Ors. V. Tapan Kumar Ghana and Ors. (supra) and also in C.O. No. 345 of 2015 with CAN 2170 of 2015 Sk. Sajhan Ali & Ors. v. Sk. Saber Ali & Anr."

15. Therefore, the earlier view where it was held that in the event of transfer of entire share by sale, the weak right of pre-emption would no more be available said theory was held per inquirium by this Court, and, the said case of Amal Kumar Ballav & Anr. (supra) has been decided by this Court by giving reference to some other decisions as were also available in the field. Since till this stage the aforesaid view as adumbrated in paragraphs 23 and 24 in the case of Amal Kumar Ballav Vs. Juran Krishna Mazumdar (supra) is a good law holding the field, the observation of the subordinate Courts in declining the right of co-sharership of the petitioner is set aside and quashed.

16. Admittedly in the self-same plot from the self-same owner Kalisankar Bhunia the petitioner had also purchased 10 decimals land from the suit plot 200 total area of which was 34 decimals, the learned Courts below denied the right of pre-emption of the petitioner also on the ground of adjoining land owner on the same ground that the vendor of the pre-emptee had sold out the entire share. But in view of the above decision since the petitioner is held a lawful co-sharer under the Act and nonetheless of transferring the entire share by the opposite party no.2 in favour of opposite party no.1, the right of pre-emption of the petitioner under Section 8 of the Act having remained alive, and, not being barred by law of limitation the petitioner is entitled to get pre-

emption over the subject property as co-sharer to the vendee of opposite party no.1, since the opposite party no.1 was a stranger to the same.

17. However, though both the learned Courts below did not accept the petitioner as the adjoining land owner, but the perception altogether in support of not accepting the ground of adjoining land owner is not warranted by law. Therefore the ground in rejecting the prayer of the petitioner on the ground of vicinage is set aside, though in reality and in view of the law in the field the petitioner would not be an adjoining land owner. If the story of partition contended by the opposite party could have been accepted in that event the case of becoming an adjoining land owner as contended by the petitioner could have been accepted. But since the petitioner in view of the provision of law discussed above is held as co- sharer, therefore simultaneously he cannot be said to be an adjoining land owner to the subject property, since within the self-same plot co-sharerships was never severed with each other.

18. Therefore, though the petitioner would not be entitled to get order of pre-emption on the ground of vicinage, but both the learned sub-ordinate Courts applied the law on wrong perception in declining the right of pre-emption in favour of the petitioner on the ground of co-sharership.

19. As a result of which the faulty judgment impugned, delivered by both the learned sub-ordinate Courts declining right of pre-emption of the petitioner on the ground of co-sharer is set aside.

20. The revision application accordingly is allowed vesting right title, interest over the subject property covered by the sale deed dated 31st May, 2001 as mentioned in the schedule of the pre-emption application in terms of this order in favour of the petitioner. The learned Trial Court is directed to record other formal incidental order(s) allowing the opposite party no.1, Deepak Kumar Mondal to withdraw the statutory deposit with interest accrued thereon lying deposited in the Court against proper receipt and identification.

21. No order as to costs.

22. Department is directed to communicate a copy of this judgment to Learned 1st Appellate Court and Trial Court for information.

23. Urgent certified copy be supplied on priority basis if applied for.

(MIR DARA SHEKO, J.)

Unlock Advanced Research with PRISMAI

Calcutta High Court (Appellete Side)