Calcutta High Court (Appellete Side)
Mst. Moslema Bibi vs Mst. Aleya Bibi on 20 March, 2015
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Civil Revisional Jurisdiction
Appellate Side
CO 172 of 2007
Mst. Moslema Bibi
-vs.-
Mst. Aleya Bibi
Present : The Hon'ble Justice Arijit Banerjee
For the petitioner : Mr. Biswajit Basu, Adv.
Mr. Susenjit Banik, Adv.
For the opposite party : Mr. Mohinoor Rahaman, Adv.
Mr. Abhijit Pal, Adv.
Heard On : 06/01/2015, 20/01/2015 & 27/01/2015
Judgment On : 20/03/2015
Arijit Banerjee, J.:
(1) In this revisional application the petitioner challenges an order dated 28th April, 2006 passed by the Ld. Additional District Judge, Fast Track Court-I, Basirhat in Misc. Appeal No. 2 of 2005 thereby affirming the order dated 15th February, 2005 passed by the 2nd Court of Civil Judge (Junior Division) at Basirhat, District 24 Parganas (N) in Misc. Case No. 52 of 1995. (2) The opposite party filed an application under Section 8 of the West Bengal Land Reforms Act, 1955 being Misc. Case No. 52 of 1995 to pre- empt the sale of suit property in favour of the petitioner on the ground that the opposite party is a co-sharer of the suit property as also owner of the plot of land adjoining the suit property.
(3) By the order dated 15th February, 2005, the Ld. Trial Court allowed the pre-emption application holding that the opposite party is a co-sharer of the plot of land in question. The Ld. Trial Court rejected the petitioner's contention that the application for pre-emption was barred by limitation. The Ld. Court held that since no notice of transfer was served on the opposite party as required by Section 5 (5) of the said Act, the period of limitation of three months mentioned in Section 8 of the Act does not apply and the period of limitation shall be treated as three years from the date of transfer. The sale deed was executed in favour of the petitioner on 15th July, 1992 and the same was registered on 13th November, 1992. Therefore, date of transfer must be taken to be 13th November, 1992. The pre-emption application was filed on 12th May, 1995 i.e. within three years from the date of transfer. Accordingly, the Ld. Judge allowed the opposite party's application for pre-emption.
(4) The appellate Court agreed with the order of the Ld. Trial Court and dismissed the appeal. Being aggrieved, the petitioner is before this Court by way of the instant revisional application. Appearing in support of the application, Mr. Basu, Ld. Counsel has urged only the point of limitation. He very fairly stated that the petitioner's case stands or falls on the issue of limitation.
(5) Certain facts are admitted. The sale-deed was executed in favour of the petitioner/pre-emptee on 15th July, 1992. Registration of the sale-deed took place on 13th November, 1992 which must be taken to be the date of transfer going by Section 61 of the Registration Act. No notice of transfer was served on the opposite party. The application for pre-emption was filed on 12th May, 1995.
(6) The short question that arises for determination is whether the period of limitation for filing a pre-emption application under Section 8 of the said Act by a co-sharer on whom no notice of transfer has been served is three years or some other period of time.
(7) Before referring to the case law on the subject, Section 5(4), Section 5(5) and Section 8(1) of the West Bengal Land Reforms Act, 1955 should be taken note of. The said provisions are set out hereunder:-
"S. 5(4) If the transfer of a portion or share of such a plot of land be one to which the provisions of Section 8 apply, there shall be filed by the transferor or transferee notices giving particulars of the transfer in the prescribed form together with the process fees prescribed for the service thereof on all the co-sharers of the said plot of land who are not parties to the transfer and for affixing a copy thereof in the office of the registering officer of the Court house or the office of the Revenue Officer, as the case may be, as well as for affixing a copy on the plot of land.
S. 5.(5) The Court, the Revenue Officer or the registering officer, as the case may be, shall transmit the notice to the authority referred to in sub-clause (1) of Clause (b) of sub-Section (1) who shall serve the notices on the co-
sharers referred to in sub-Section (4) by registered post and shall cause copies of the notice to be affixed on the plot of land and in the Court house or in the office of the Revenue Officer, or of the registering officer, as the case may be.
Explanation.-In this Section-
(a) "transferor", ("transferee"), "purchaser" and "mortgagee"
include their successors-in-interest, and
(b) "transfer" does not include simple or usufructuary mortgage or mortgagee by deposit of title deeds.
S. 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 four months of the date of such transfer, apply to the Munsif 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:
[Provided that if the bargadar in the plot of land, a co-sharer of raiyat in the 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 of 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 the 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.]"
(8) Mr. Biswajit Basu, Ld. Counsel appearing for the petitioner cited seven decisions.
(9) In the case of Fuzle Hakani-vs.-Sk. Arsed Ali reported in 89 CWN 1081, the then Chief Justice of this Court sitting singly held that where no notice of transfer on a co-sharer was served as contemplated by Section 5(5) of the WBLR Act, 1955, the period of limitation of three months for filing a pre-emption application as prescribed by Section 8 of the said Act was not applicable.
(10) In the case of Sribas Chandra Biswas-vs.-Jiban Krishna Biswas reported in (2012) 2 WBLR (Cal) 245, a Ld. Judge of this Court took the view that a co-sharer on whom no notice of transfer was served, would get the benefit of Article 137 of the Limitation Act, 1963 and it could maintain a pre-emption application within three years from the date of registration of transfer.
(11) In the case of Mahaprasad Jana-vs.-Lalit Mohon Bera reported in 2013 (3) CHN (Cal) 441, a Ld. Judge of this Court held that the limitation period for exercising the right of pre-emption is three years in respect of a non-notified co-sharer. In so holding, the Ld. Judge relied on the decisions of this Court in the cases of Ram Kumar Kajaria-vs.-M/s. Chandra Engineering (India) Ltd. reported in 76 CWN 426, Dwijapada Haldar-
vs.-Prafulla Chandra Haldar reported in AIR 1972 Cal 409 and Gangadhar Bhandari-vs.-Lalmohon Mukherjee reported in (1978) 1 CLJ 451.
(12) In the case of Adhir Kumar Guchait-vs.-Maya Rani Majhi reported in 2009 (4) CHN 597, a Ld. Judge of this Court held that Section 5(5) of the West Bengal Land Reforms Act, 1955 does not contemplate service of notice upon the adjoining land owner. It is also not provided in the said Act that the adjoining land owner will get benefit in case of non-service. In case of pre-emption, non-notified co-sharers and raiyats owning land adjacent to the plot of land which has been transferred, do not stand in the same position and the benefit available to the co-sharer raiyat cannot be claimed by the adjoining land owner. The Ld. Judge further held that Section 5 of the Limitation Act does not apply to proceedings under Section 8 of the West Bengal Land Reforms Act.
(13) In the case of Ajit Mondal-vs.-Tapan Kumar Ghana reported in (2013) 3 WBLR (Cal) 194, a Ld. Judge of this Court held that a petition under Section 8 of the 1955 Act should be regarded as a plaint in a suit and as a consequence, Article 137 of the Schedule to the Limitation Act will have no manner of application thereto. The Ld. Judge went on to hold that in case of a co-sharer of a transferor raiyat to whom the substantive right under Section 8 of the 1955 Act has been extended, the period of limitation would not start to run if no notice has been served and if despite exercise of due diligence by such co-sharer, the factum of the transfer remained unknown to such co-sharer by reason of any fraud perpetrated on such co- sharer or on account of any mistake. But upon the period of limitation beginning to run, the co-sharer of a transferor right in the relevant plot of land will have a period of three months within which the right conferred on him under Section 8 of the 1955 Act has to be exercised.
(14) In the case of Tapan Kumar Ghana-vs.-Smt. Sankari Bala Santra reported in (2012) 1 WBLR (Cal) 571, a Ld. Single Judge of this Court held that Article 137 (erroneously referred to as Section 137) of the Schedule to the Limitation Act is applicable in case of a non-notified co-sharer raiyat who has not been served with a notice of transfer. Accordingly, the period of limitation in such a case of non-notified co-sharer is three years from the date of transfer of the concerned land.
(15) In the case of Sk. Abdul Khelak-vs.-Rahul Amen Mallick reported in (2014) 4 CLT 571 (HC), a Ld. Judge of this Court held that the date of registration of the document of transfer is the date when the document comes to the public domain and a person is deemed to have knowledge of the document from such date. Thus, a non-notified co-sharer is entitled to bring a petition for pre-emption under Section 8 of the 1955 Act within a period of three years from the date of registration of the impugned document of sale.
(16) In the case of Prasanna Kumar Nag-vs.-Prokash Chandra Poddar reported in 2009 (4) CHN 197, a Ld. Single Judge of this Court relying on the Supreme Court decision in the case of Gopal Sardar held that the prescribed period of limitation for filing of an application for pre-emption on the ground of co-sharership by non-notified co-sharer will be one year from the date of completion of the sale as Article 97 of the Schedule to the Limitation Act will govern such a case.
(17) In the case of Gopal Sardar-vs.-Karuna Sardar reported in 2004 (4) SCC 252, the Hon'ble Supreme Court held that a proceeding initiated by an application under Section 8 of the West Bengal Land Reforms Act, 1955 is in the nature of a suit. As such, Section 5 of the Limitation Act is not attracted to a proceeding under Section 8 of the West Bengal Land Reforms Act. The Supreme Court further held that the period of limitation prescribed under Section 8 of the 1955 Act specifically and expressly governs an application to be made under the said Section and not the period prescribed under Article 137 of the Schedule to the Limitation Act. Right of pre- emption conferred under Section 8 of the 1955 Act is a statutory right besides being a weak right and such right has to be expressed strictly in terms of the said Section and consideration of equity has no place. (18) Ld. Counsel for the opposite party vociferously argued that in the case of a non-notified co-sharer, Article 137 of the Schedule to the Limitation Act would apply and the period of limitation for filing a pre-emption application would be three years from the date of transfer. He cited a Division Bench decision of this Court in the case of Serish Maji-vs.-Nishith Kumar Dolui reported in 1999 (1) CHN 365. With respect, I am unable to appreciate the relevance of the said decision in the facts of the instant case. In that case, the Hon'ble Division Bench decided that Section 5 of the Limitation Act does not apply to an application for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955.
(19) On a reading of the judgments discussed above it appears that there is a trichotomy of views as regards the period of limitation that would govern a pre-emption application under Section 8 of the 1955 Act. Although the judgment in Gopal Sardar (supra) refers to Article 97 of the Schedule to the Limitation Act, it does not expressly hold that the period of one year prescribed under Article 97 of the Schedule would apply to a pre-emption application under Section 8 of the 1955 Act. However, Prasanna Kumar Nag (supra) has interpreted Gopal Sardar to mean that Article 97 of the Schedule to the Limitation Act would apply to a non-notified co-sharer seeking to exercise right of pre-emption under Section 8 of the 1955 Act. The subsequent decisions in Sribas Chandra Biswas (supra), Mahaprasad Jana (supra), Adhir Kumar Guchait (supra) and Tapan Kumar Ghana (supra) without considering Prasanna Kumar Nag (supra), held that Article 137 would apply to the case of a non-notified co-sharer. Prasanna Kumar Nag (supra) was considered in Ajit Mondal which seems to be saying that the period of limitation in case of a non-notified co-sharer is three months from the date he acquires knowledge of the transfer.
(20) At this juncture I feel it is necessary to make a digression and dilate a little on the principle of stare decisis and when a judgment can be considered to have been rendered per incuriam.
(21) The doctrine of stare decisis requires that a court of law should follow a binding precedent. However a precedent may not considered to be binding if it is delivered per incuriam. In the case of Mamleshwar Prasad-vs.- Kanahaiya Lal reported in AIR 1975 Supreme Court 907, at paragraph 7 of the judgment the Supreme Court held that certainty of the law, consistency of rulings and comity of courts - all flowing from the same principle, converge to the conclusion that a decision once rendered must later bind like cases. However, in exceptional instances where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents.
(22) In the case of Distributors (Baroda) Pvt. Ltd.-vs.-Union of India reported in AIR 1985 Supreme Court 1585, at paragraph 19 of the judgment, the Hon'ble Supreme Court observed that it is essential that there should be continuity and consistency in judicial decisions and law should be certain and definite. It is almost as important that the law should be settled permanently as that it should be settled correctly. But there may be circumstances where public interest demands that the previous decision be reviewed and reconsidered. The doctrine of stare decisis should not deter the court from overruling an earlier decision, if it is satisfied that such decision is manifestly wrong or proceeds upon a mistaken assumption in regard to the existence or continuance of a statutory provision or is contrary to another decision of the court. Jackson, J. in his dissenting opinion in Massachusetts-vs.-United States (1947) 333 U.S. 611 observed: "I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday." Lord Denning also said to the same effect when he observed in Ostime-vs.-Australian Mutual Provident Fund Society, (1960) AC 459: "The doctrine of precedent does not compel Your Lordships to follow the wrong path until you fall over the edge of the cliff." (23) In the case of Government of AP-vs.-B. Satyanarayana Rao reported in (2000) 4 SCC 262 at paragraph 8 of the judgment, the Hon'ble Apex Court observed that the rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.
(24) In the case of State of Bihar-vs.-Kalika Keur reported in 2003 5 SCC 448 in paragraphs 5 to 8 of the judgment the Hon'ble Supreme Court observed as follows:-
"5. At this juncture we may examine as to in what circumstances a decision can be considered to have been rendered per incuriam. In Halsbury's Laws of England (Fourth Edition) Vol.26: Judgment and Orders Judicial Decisions as Authorities (pages 297-298, Para 578) we find it observed about per incuriam as follows:
"A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties, or because the court had not the benefit of the best argument, and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake."
Lord Godard, CJ. in Huddersfield Police Authorities case observed that where a case or statute had not been brought to the Court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered per incuriam.
6. In a decision of this Court reported in Govt. of Andhra Pradesh-vs.-B. Satyanarayana Rao it has been held as follows: (SCC pp. 264-65, para 8) "The rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.
7. According to the above decision, a decision of the coordinate Bench may be said to be ceased to be good law only if it is shown that it is due to any subsequent change in law.
8. In State of U.P.-vs.-Synthetics and Chemicals Ltd. this court observed:
(SCC pp. 162-63, para 40) "40. 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young versus Bristol Aeroplane Co. Ltd.) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law"
(25) In the case of Government of West Bengal-vs.-Tarun K. Roy reported in 2004 (2) CHN 23 (SC), the Hon'ble Supreme Court observed at paragraph 27 of the judgment that if the rule of law is to be followed, judicial discipline demands that the court follows its earlier binding precedent. An order passed to the contrary by another Ld. Single Judge in ignorance of the earlier binding precedent by itself would not constitute a binding precedent and may be held to have been rendered per incuriam.
(26) Coming back to the main issue, the decisions referred to above, holding the period of limitation to be three years for a non-notified co-sharer to exercise his right of pre-emption, can be said to have been rendered per incuriam since those decisions did not notice the earlier decision of a co-
ordinate Bench in Prasanna Kumar Nag. Hence I am not inclined to follow the said decisions which hold that Article 137 of the Schedule to the Limitation Act is attracted in the case of a non-notified co-sharer. (27) The view expressed in Prasanna Kumar Nag is on the basis as if the Supreme Court in Gopal Sardar laid down that Article 97 of the Schedule to the Limitation Act would apply to a pre-emption application filed by a non- notified co-sharer. However on a reading of the judgment in Gopal Sardar I am unable to find any such express dictum of the Supreme Court. No reason has also been given in support of the view as to why Article 97 should be attracted in a case of a non-notified co-sharer.
(28) There is an obvious conflict between the views expressed by the Ld. Judges in Prasanna Kumar Nag and Ajit Mondal. The Ld. Judge has given detail reason for his views expressed in Ajit Mondal. The purpose of the notice that is required to be served on a co-sharer is to make him aware of transfer of a share in the land of which he is co-owner so that he may exercise his right of pre-emption if he so wishes. The period within which such application is required to be made as per the provisions of Section 8 of the 1955 Act is three months from the date of notice. Hence, period of limitation will not start to run until the co-sharer gains knowledge of the transfer. Such knowledge can be actual or constructive. The co-sharer shall be deemed to be fixed with notice of the transfer at the latest on the date of registration of the transfer deed, when the transfer comes to the public domain. Hence, in my view, the period of limitation for maintaining a pre- emption application by a non-notified co-sharer should be three months from the date of registration of the impugned transfer.
(29) However, since there is a divergence of views as regards the period of limitation that would apply to a pre-emption application filed by a non- notified co-sharer, I deem it appropriate to refer the following question of law to a Larger Bench for resolution:-
"When does the period of limitation begin to run and when does such period end for a pre-emption application under Section 8 of the West Bengal Land Reforms Act, 1955 at the instance of a co-sharer on whom notice of transfer as contemplated by Section 5 (5) of the said Act has not been served?"
(30) Accordingly, let this matter be placed before the Hon'ble The Chief Justice for constituting a Larger Bench for expressing its opinion on the above question.
(31) The revisional application will stand adjourned sine die, to be decided after disposal of the above reference by the Larger Bench.
(Arijit Banerjee, J.)