Calcutta High Court (Appellete Side)
Shrimati Sovona Mahapatra vs Jagadish Chandra Mahapatra & Ors on 12 May, 2016
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Shivakant Prasad
RVW 184 of 2015
With
C.O. No. 3826 of 2012
Shrimati Sovona Mahapatra
-Vs.--
Jagadish Chandra Mahapatra & Ors.
For the Petitioner : Mr. Sudeep Sanyal
Mr. Sukanta Das
For the Opposite Party : Mr. Rabindranath Mahato
(in RVW 184 of 2015)
Heard On : 05.05.2016
C.A.V. On : 05.05.2016
Judgment On : 12.05.2016
SHIVAKANT PRASAD, J.
Review application filed on behalf of the opposite party is against the order dated 4th June, 2015 passed by this Court in C. O. No. 3826 of 2012 inter alia on the ground that evidence and the judgment of both the Court below has not been noticed to this fact that by three separate registered deeds of conveyance executed on 6th February, 1988, 1st February, 1988 and 17th June, 1988 bearing deed nos. 4479, 965 and 5814, 38 decimals, 38 decimals and 8 decimals of land respectively in R.S. Plot No. 809 from the owner Mangobinda Mahapatra by which opposite party purchased the said land and thereby became co-sharer in respect of the plot and therefore, right of pre-emption cannot be exercised at all by a contiguous land owner in respect of the said plot.
Provision of Section 8 of West Bengal Land Reforms Act provides for pre-emption of co-sharer when a share or portion of a plot of land sold to any person other than co-sharer but in the facts of the present case the applicant himself became the co-sharer of Plot No. 809 by purchase of shares in the plot by virtue of the said three separate deeds of conveyance.
It is also contended that when the applicant himself has become a co-sharer in the plot of land by the said successive purchases of shares in R.S. Plot No. 809, pre-emption of undivided share would not lie on the instance of adjoining owner.
The learned Trial Court by allowing the pre-emption by an adjoining owner committed an error by holding that a person becomes owner of the land only upon registration of the deed of conveyance when in fact as pointed out by Appellate Court below the deed of conveyance takes effect from the date of its execution which is evident from the language used in Section 47 of the Registration Act, 1908, which provides that a registered document operates from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. And as such, the observation of the learned Trial Court that the date of transfer means the date of registration of the sale deed is absolutely erroneous as there is no provision for overriding the provision of the Registration Act.
It is further submitted by learned Counsel for the present petitioner that P.W.-1 during his cross-examination before the Trial Court deposed that by 'Nirupanpatra' his father allotted entire Plot No. 809 in favour of Mangobinda Mahapatra and sold entire land of Plot No. 809.
The background leading to this review application is that the present opposite parties challenged the judgment and order dated September 27, 2012 passed by learned Additional District Judge, re- designated Court, Midnapore, District- Midnapore (West) and Misc. Appeal No. 1127 of 2011 reversing the judgment and order dated June 15, 2011 passed by the learned Civil Judge, Junior Division, First Court at Midnapore, District- Midnapore in Judicial Misc. Case No. 27 of 1988.
The petitioners of C.O. No. 3826 of 2012 present opposite parties exercised their pre-emption right under Section 8 of W.B.L.R. Act on the ground that the opposite party No. 2 without the knowledge of the petitioner has transferred the suit property in favour of the opposite party No. 1 by execution of the impugned deed of sale dated February 6, 1988 vide deed No. I- 4479 of 1988 and on the ground that the present opposite parties are adjoining land owners. On contested hearing the learned Civil Judge by his judgment dated June 15, 2011 allowed the Misc. Case under Section 8 of W.B.L.R. Act which was challenged by the pre-emptee by filing a Misc. Appeal No. 1127 of 2011 and the learned Additional District Judge was pleased to remand back the case to the Trial Court with a direction to re-adjudicate the case afresh in the perspective of the findings that the learned Court below had failed to make any comment about alleged transferred of the entire R. S. Plot No. 809 as found and admitted by P.W.-1 in cross-examination with observation that to have pre-emption under Section 8 of W.B.L.R. Act. The preliminary consideration is transferred of a portion or share of a plot or land in favour of any person other than the co-sharer of the 'raiyat' of the said plot of land and on this score there was no observation of the learned Trial Court. Accordingly, the learned Court of appeal remanded the case back to the learned Trial Court for proper adjudication of pre-emption case on the issue as to whether a part or a portion of suit plot was transferred.
It would not be out of the context here that the revisional application being C.O. No. 3826 of 2012 was disposed of ex-parte against the opposite party No. 1 of the said civil revision setting aside the Appeal Court judgment dated 27th September, 2012 while affirming the judgment dated 15th June, 2011 passed in Misc. Case No. 27 of 1988 of the learned Trial Court. With this view in mind that since the impugned deed of sale being deed No. 4479 dated 06.2.1998 Exhibit-'D' = Exhibit-3 depicted that land measuring 38 decimals in Plot No. 809 was transferred. This Court was of the view that learned Trial Court has decided the issue that the transfer was in respect of a portion of land in Plot No. 809.
Mr. Sudeep Sanyal, learned Counsel for the present opposite parties submitted that by virtue of registered deed of 'Nirupanpatra' dated November 9, 1966 being Exhibit-2 reflects that land mentioned in Schedule 'Una' at serial no. 4, measuring 1.04 acres in Plot No. 809 was allotted by Satish Chandra Mahapatra to Mangobinda Mahapatra, whereas .01 decimal of land in Plot No. 809 was allotted in favour of Joydev Mahapatra, the present opposite party no. 2. So, Joydev Mahapatra pre-emptor No. 2 having 01 decimal of land in Plot No. 809 has claimed to be a co-sharer of Mangobinda Mahapatra in Plot No. 809.
Mr. Sanyal further submitted that said Mangobinda Mahapatra by registered deed of sale being No. 4479 dated 06.2.1988 sold 0.84 decimals of land from his land in Plot No. 809 to the pre-emptee Sovana Mahapatra and 30 decimal to one Kanu Murmu by separate deeds showing that said Mangobinda Mahapatra also sold his entire share in the suit plot no. 809 as per the tabular statement given below--
Quantum of Land Date of Execution Date of registration Deed No.
of deed of deed
0.38 decimals 1.2.1988 9.2.1988 965
(Sovana Mahapatra)
0.38 decimals 6.2.1988 1.6.1988 4479
(Sovana Mahapatra)
0.8 decimals 17.6.1988 29.6.1988 5814
(Sovana Mahapatra)
30 decimals 29.6.1988 29.6.1988 5818 (sold to Kanu
Murmu and
admitted in evidence
before the Appellate
Court Order 41 Rule
27 CPC)
The pre-emptors have field two cases for pre-emption i.e. J. Misc. Case No. 27 of 1988 and J. Misc. Case No. 29 of 1988 against the order passed in J. Misc. Case No. 29 of 1988 an appeal being No. 1128 of 2011 preferred by Sovana Mahapatra is still pending for adjudication. In both these Misc. Cases the transfer by two registered instruments of the same Plot No. 809 of land measuring 0.38 decimals each of land separately sold by the said two deeds by Mangobinda Mahapatra to Sovana Mahapatra are the subject matter of pre-emption claimed by the pre-emptors. But, the deed no. 5814 and deed no. 5818 by which Mangobinda Mahapatra transferred 0.8 decimals of land to Sovana Mahapatra and 0.30 decimals of land to to Kanu Murmu respectively have not been challenged by the pre- emptors.
The specific case of the pre-emptors is that they have common boundary as contiguous tenant with Plot No. 809 but in written statement, Sovana Mahapatra has categorically averred in paragraph 14 that by virtue of her ownership in Plot No. 809 she has longest common boundary in the said plot. Therefore, by virtue of holding .01 decimal of land of Plot No. 809, the pre-emptor cannot claim to a longest common boundary which fact has been lost sight of by the learned Trial Court.
As regards pendency of the appeal against the order passed in Misc. Case No. 29/2012, Mr. Rabindranath Mahato, learned Counsel for the pre-emptor submitted that identical points involved in both the J. Misc. Case against two transactions were not analogously proceeded with. So, disposal of the revisional case being C.O. No. 3826/12 cannot be held up and it is submitted that in the case in hand there is only one pre-emptor so there is no competition between two or more pre-emptors and as such, no scope to consider as to who has longest boundary.
It is also submitted that by virtue of deed no. 5814 Exhibit-'A' the pre-emptee became a co-sharer in respect of plot no. 809 on the date of execution of such deed i.e. on 17th June, 1988 which is subsequent execution of the deed no. 4479 being Exhibit-'D/3' and J. Misc. Case No. 27/1988 has been initiated for pre-emption of the impugned deed no. 4479.
On behalf of the pre-emptee it has also been argued that since there is no averment in the application for pre-emption that a portion of the plot has been transferred, the application for pre- emption is not maintainable. To counter this, Mr. Mahato submitted that it is true, initially there was no averment in the application but by way of amendment, the application under Section 8 of WBLR Act was amended which takes effect from the date of the application to which no objection was raised. Therefore, the pre-emptee cannot raise such a ground to challenge the application under Section 8 of WBLR Act.
On behalf of the pre-emptor a decision in case of Narayan Chandra Ghosh and another v. Sanat Kumar Das and others reported in AIR 1975 Cal. 290 : 1975 CHN 229(N) has been referred in support of his case wherein it has been held thus--
"The proviso to Section 8(1) of the Act does not contemplate a transfer to a person who is already a raiyat possessing adjoining lands and such a transferee cannot pre-empt against himself. It contemplates two rival applicants applying for pre- emption on ground of vicinity and in such situation preference is to be given to the raiyat holding longest common boundary. That being the position, it seems to me that when a raiyat possessing adjoining lands is also the transferee of a portion or share of a holding, he cannot reside an application for pre-emption by another raiyat holding lands adjoining the disputed holding."
In case of Bhadreswar Bera Vs. Mathura Mohan Shaw reported in (2004) 4 CHN 349/(2004) 2 WBLR 773, it has been observed in paragraph 17 as under--
"At the time of filing the application of pre- emption of the transaction, the present petitioner was not a co-sharer of the plot and that is why the opposite party No.1 applied for pre-emption. If subsequently, by another transaction, the petitioner becomes co-sharer, such fact cannot extinguish the right of a pre-emptor. It is true that in order to succeed in an application for pre- emption, the pre-emptor must have such right even till the passing of the order of pre-emption, the pre-emptor must have such right even till the passing of the order of pre-emption which means that if during the pendency of the pre-emption proceedings, the pre-emptor himself loses his right in the land on the basis of which he claimed pre- emption, in such a case, his application will fail. But right of a pre-emptor which has accrued to pre- empt a particular transaction cannot be frustrated by the pre-emptee by acquisition of co-sharership in the plot by virtue of a subsequent transaction."
Mr. Mahato also submitted with regard to order of remand by the Appeal Court below by taking support of the observation made in case of Maya Devi (dead) through LRS. V. Raj Kumari Batra (dead) through LRS. and others reported in (2010) 9 Supreme Court Cases 486 which reads that--
″An Appellate Court or authority may in a given case decline to undertake any such exercise and remit the matter back to the lower court or authority for a fresh and reasoned order. That, however, is not an inflexible rule, for an appellate court may notwithstanding the absence of reasons in support of the order under appeal before it examine the matter on merits and finally decide the same at the appellate stage. Whether or not the appellate court should remit the matter is discretionary with the appellate court and would largely depend upon the nature of the dispute, the nature and the extent of evidence that may have to be appreciated, the complexity of the issues that arise for determination and whether remand is going to result in avoidable prolongation of the litigation between the parties. Remands are usually avoided if the appellate court is of the view that it will prolong the litigation". It has also been held in case of K. Krishna Reddy and others Vs. Special Deputy Collector, Land Acquisition Unit II, LMD Karimnagar, Andhra Pradesh reported in (1988) 4 Supreme Court Cases 163 that the appellate power of remand, at any rate ought not to be exercised lightly. It shall not be resorted to unless the award is wholly unintelligible or there is total lack of evidence.
It would also appear from the deed of nirupampatra dated 22.2.1967 Exhibit-'2' that Satish Chandra Mahapatra settled demarcated land in Schedule 'Una' including the case Plot No. 804 being serial no. 4 to the extent of 1.04 acres of land to Mangobinda Mahapatra vendor of the pre-emptee whereas he settled only .01 decimal of said plot no. 804 in 'Kha' Schedule to Joydev Mahapatra pre-emptor. Thus, Mangobinda Mahapatra and Joygobinda Mahapatra are both co-sharer and brothers in the said Plot No. 809.
Learned Counsel for the pre-emptee by inviting my attention to the various registered deed and their execution as shown in the above mentioned tabular statement, submitted that the pre-emptors are not co-sharers of the pre-emptee whereas opposite party no. 1 being the co-sharer of opposite party no. 2 before the transfer of the case land were co-sharers and the pre-emption would not lie inasmuch as pre-emptors are not entitled to pre-empt on the ground of being co-sharer or adjoining land owner.
Mr. Sanyal fortified his argument by referring a decision in case of Sri Bhuban Chandra Samanta Vs. Jamini Bhusan Kar & Ors. reported in 1970 CLJ 249 wherein it has been held that--
"When a raiyat having no co-sharer of the holding i.e., a sole owner of the holding transfers, the contiguous tenant cannot invoke right of pre- emption on the ground of vicinage under Section 8 of WBLR Act. When a raiyat transfers the entire holding to different persons in specific shares on the same date, such transfers are tantamount to a single transfer in respect of entire holding. A right of pre-emption arises only out of a valid and complete sale and sale is not complete unless the registration of the sale deed is completed and the registration is not complete till the document to be resisted is copied in the relevant Register as provided Sec. 61, Registration Act."
It would be profitable to reproduce the first proviso to Section 8(1) of the Act which reads as under--
"a co-sharer raiyat will have preferential right as against a contiguous tenant to have such portion or share of the holding transferred to him, where both of them are applicants at the same time. The section restricts the owner's unfettered right of sale and compels him to sell the share or portion of the holding either to his co-sharer or to contiguous tenant, as the case may be. It is now an accepted legal principle that where the provision of a statute providing for right of pre-emption shackles the freedom of transfer, the same should be strictly construed and, unless a case strictly within the provision, claim for pre-emption should not be allowed. Section 8(1) of the Act construed in the light of the aforesaid legal principle, leaves no room for doubt that the holding, a share or portion of which is transferred, must be hold under joint ownership. The contention of Mr. Bhunia that even though there is no co-sharer of the holding the contiguous raiyat has the right of pre- emption in case of a transfer of a share or portion of the holding, is overruled."
Thus, it is contended that the pre-emptor are not entitled to claim pre-emption in respect of the case land as the entire share of a co-sharer has been sold. In the case in hand, Mangobinda Mahapatra has sold all of his shares in the case plot. Therefore, the pre-emptors having .01 decimal of land in the case plot have or have no right to exercise pre-emption is the issue for decision which was not dealt with by this Court while considering the revisional application in C.O. No. 3826 of 2012.
In the context of the above discussion this Court is of the view that the learned Court of Appeal though has rightly remanded the case of pre-emption to the learned Trial Court for decision on the issue as to whether a part or portion of the plot has been sold to the pre-emptee, nevertheless, for just decision in both the pending Misc. Appeal, the judgment impugned dated 27th September, 2012 in Misc. Appeal No. 1127/2011 stands set aside.
Accordingly, the order dated 4th June, 2015 passed in C. O. No. 3826 of 2012 is reviewed and disposed of with direction that the learned Appeal Court will decide both the Misc. Appeal No. 1127/2011 arising out of J. Misc. Case No. 27/1988 and Misc. Appeal No. 1128/2011 arising out of J. Misc. Case No. 29/1988 analogously as expeditiously as possible preferably within six months from the date of receipt of this order.
Thus, the review application being RVW 184 of 2015 is allowed, but without any order as to costs.
Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)