Calcutta High Court (Appellete Side)
Sri Subal Mondal vs Sri Gopal Chandra Mondal on 29 November, 2013
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Present:- The Hon'ble Mr. Justice Tarun Kumar Gupta C. O. No. 2302 of 2012 Sri Subal Mondal Versus Sri Gopal Chandra Mondal For the petitioner: Mr. Hiranmoy Bhattacharyya Mr. Amitava Ghosh Mr. Tanmoy Mukherjee For the Opposite Party: Mr. Gopal Chandra Ghosh Mr. Sandip Das Judgement on: 29th November, 2013 Tarun Kumar Gupta, J.:-
The petitioner pre-emptee has filed this application under Article 227 of the Constitution of India challenging order dated 19th of May, 2012 passed by learned Additional District Judge 14th Court, Alipore, District - 24 Parganas (South) in Misc. Appeal No.209 of 2010 by allowing the application for pre-emption after setting aside the order No.81 dated 15th of March, 2010 passed by learned Civil Judge, (Junior Division) 1st Court, Baruipur in Misc. Case No.1 of 2004.
The admitted position of the case is that one Akshay Kumar Mondal was the absolute owner of the property measuring 33 decimals comprising Bastu and Pukur in Dag No.3720 and 5695. He sold 10 decimals demarcated lands in those two plots to one Sankar Nath Mondal and also 8 decimals demarcated land in those two plots to pre-emptor Gopal Chandra Mondal by two separate kobalas both executed and registered on 9th of March, 1963. He also sold his remaining portions of demarcated lands to other purchasers namely Nepal Mondal and Bhopal Mondal. Subsequently, said Sankar Nath Mondal sold out demarcated portion of 3 ½ decimals of land in two plots out of his purchased 10 decimals of land to the pre-emptee Subal Mondal by a registered kobala dated 25th of August, 2003 . Gopal Chandra Mondal filed an application for pre-emption (Misc. Case No.1 of 2004) claiming pre-emption on the ground of co-shareship as well as vicinage. Said application was opposed by the present petitioner pre-emptee alleging that as Akshay Kumar Mondal sold demarcated portion of lands to the purchasers including Sankar Nath Mondal and Gopal Chandra Mondal, neither of them was a co-sharer of the other. It was further alleged that present O. P. pre-emptor Gopal Chandra Mondal was not a co-sharer of Sankar Nath Mondal and that as the well demarcated portion was sold to Sankar Nath Mondal he had no co-sharer and hence Gopal Chandra Mondal cannot claim any pre-emption.
After contested hearing learned trial court rejected said application for pre-emption on the ground that as Akshay Kumar Mondal, the original owner, sold out well demarcated portions of land to different persons including pre-emptor Gopal Chandra Mondal and pre-emptee's vendor Sankar Nath Mondal, Gopal Chandra Mondal was not a co-sharer of Sankar Nath Mondal. He also held that Gopal Chandra Mondal was not also entitled to claim pre-emption on the ground of vicinage.
Learned lower appellate court also came to a concurrent findings of fact that pre-emptor Gopal Chandra Mondal was not a co-sharer of pre-emptee's vendor Sankar Nath Mondal as well demarcated separate lands were sold to both of them by Akshay Kumar Mondal. However, he allowed the claim of pre-emption on the ground of vicinage.
Mr. Hiranmoy Bhattacharyya, learned counsel appearing for the petitioner pre-emptee, submits that admittedly the original owner Akshay Kumar Mondal sold out well demarcated portions of suit plots to both pre-emptor Gopal Chandra Mondal and pre-emptee's vendor Sankar Nath Mondal by two separate registered kobalas both dated 9th of March, 1963. According to Mr. Bhattacharyya as well demarcated portions of lands were sold to pre-emptor Gopal Chandra Mondal as well as Sankar Nath Mondal there was no scope of being co-sharer by one to the other's land. In support of his contention he has referred a case law reported in 77 CWN page 272 (Sm. Labanya Bala Debi vs. Sm. Parul Bala Debi & Ors.). He next submits that in order to invoke the right of pre-emption under Section 8 of the Act of 1955 the pre-conditions as embodied therein have to be fulfilled first. According to him, those three pre- conditions were that a portion or share of a plot of land was transferred, that there was a co-sharer of said land and that said transfer was made to a third party without first offering the sale to the co-sharer. According to Mr. Bhattacharyya if there is no co-sharer in the land then there is no question of first offering to a co-sharer for the purchase, or for invoking the right of pre-emption even by the other persons named in Section 8 namely 'Bargadar' and adjacent land owner. In support of his contention he refers a case law reported in 1970 CLJ page 349 (Sri Bhuban Chandra Samanta vs. Jamini Bhusan Kar & Ors.) Mr. Gopal Chandra Ghosh, learned counsel appearing for the O. P. pre-emptor, submits that admittedly Akshay Kumar Mondal was the original owner of the entire 33 decimals of land in two plots of land i.e., 1720 and 5695. According to him, even if Akshay Kumar Mondal sold out demarcated portions of lands to pre-emptor Gopal Chandra Mondal and pre-emptee's vendor Sankar Nath Mondal by two separate duly registered kobalas both dated 9th of March, 1963 but those purchasers namely Gopal Chandra Mondal and Sankar Nath Mondal continued to be co-sharers of their purchased lands as there was no partition between them in terms of Section 14 of the Act of 1955. He further submits that in terms of Section 14 of said Act of 1955 a partition between the co- sharer can only be effected either by a registered instrument or by a decree or order of a court. According to him, selling of demarcated portions of land cannot bypass said provisions of law as laid down in Section 14 of the Act of 1955.
He submits that in the absence of any partition in between Gopal Chandra Mondal and Sankar Nath Mondal they continued to be co- sharers and that learned courts below failed to take note of the same.
He next submits that as admittedly Sankar Nath Mondal out of his 10 decimals of land sold out a part of the same namely 3 ½ decimals of land to the pre-emptee, an admitted third party purchaser, the pre-emptor Gopal Chandra Mondal has the right to claim for pre-emption on the ground of vicinage also.
In the case of Sm. Labanya Bala Debi (supra) a common owner had transferred specific portions out of entire plot with different defined areas and boundaries to different purchasers on different dates although mentioning his proportionate share with reference to the entire jama. One of the purchasers filed a partition suit claiming him to be a co-sharer of the lands so sold out by the common owner. It was held by the Hon'ble Court that by such transfer each of the purchasers had no right to possess those specific plots sold to others jointly with them. The mere fact that proportionate share of the common owner in respect of his specific portions sold to each of the co-sharers in the document was mentioned could not by itself create right or interest of co-ownership in respect of the entire property. The share of the common owner representing the specific portions sold to each of the purchasers on the facts of this case must be deemed to have been mentioned for the purpose of payment of the proportionate rent of the entire jama. There is nothing in any of the impugned documents of sale to show that the sale of specific portions with defined boundaries to each of the co-sharers was made by way of amicable arrangements for convenience of possession of different purchasers. Therefore, applying the test of equal rights of enjoyment and possession of the entire property was not in the case of co-ownership, namely, plaintiffs' suit for partition as co-owners fails.
Though said case law was relating to partition suit but it laid down quite clearly that if a common owner transfers specific portions out of the entire plot with defined areas and boundaries to different purchasers then those purchasers do not become co-sharers to each other even though respective proportionate share with reference to the entire jama was noted in their respective deeds. Said principle is squarely applicable in the present case also. Here also the common owner Akshay Kumar Mondal sold specific earmarked defined portions to pre-emptor Gopal Chandra Mondal and pre-emptee's vendor Sankar Nath Mondal. As such the concurrent findings of the courts below that pre-emptor Gopal Chandra Mondal was not a co-sharer of Sankar Nath Mondal do not call for any interference.
Section 14 of the Act of 1955 lays down the mode of effecting a partition between the co-sharers. As such Section 14 comes into play only when there are co-sharers of a land. As in this case Sankar Nath Mondal had no co-sharer in his land, Section 14 had no application.
Apart from that the Section 14 came into force with effect from 7th June, 1965. The sale of lands to the pre-emptor Gopal Chandra Mondal and to the pre-emptee's vendor Sankar Nath Mondal by the common owner Akshay Kumar Mondal held in 1963. On that ground also Section 14 had no application in this case.
Now, the question is whether pre-emptor Gopal Chandra Mondal who has admittedly found to be an adjacent land owner of the suit land can claim pre-emption on account of transfer of a portion of land of Sankar Nath Mondal to pre-emptee being a third party purchaser through the impugned kobala dated 25th of August, 2003.
For proper appreciation of the arguments of learned counsels on this score it will be worthy to note the first portion of section 8 of the Act which runs as follows:-
"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 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: ....................."
In the case of Sri Bhuban Chandra Samanta (supra) a question arose as to whether an adjacent land owner can exercise the right of pre- emption in case of transfer of a portion of holding while there was no co- sharer in said holding. It was answered in the negative with the following observations.
'In view of the expressions "any person other than a co-sharer", the section contemplates that the holding must be hold under joint ownership and not under the ownership of single individual. This is also apparent from the first proviso to Section 8(1) of the Act, which provides that 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 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.' It has to be noted that at the relevant time the term "holding" was not replaced by the words "plot of land of a raiyat". Such proposition is mutated mutandis applicable in case of transfer of a portion or a share of a plot of land of a raiyat to any person when there was no co-sharer in said plot of land.
The co-sharer of a raiyat in a plot of land has been defined in Section 2 (6) as a person other than the raiyat who has an undemarcated interest in the plot of land along with the raiyat. If a raiyat being sole owner of the entire plot of land sells out a well demarcated portion of the land to different purchasers through different kobalas then each purchaser becomes sole owner of the demarcated portion purchased by him and none of them becomes a co-sharer of the demarcated land sold out to other purchasers. As such, pre-emptor Gopal Chandra Mondal was not a co-sharer of Sankar Nath Mondal, vendor of the pre-emptee, relating to Sankar's purchased lands.
Section 5 deals with transferability of plot of land of a raiyat. Sub-section 4 of Section 5 of the Act of 1955 runs as follows:-
"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 or 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."
On plain reading of said sub-section 4 of Section 5 of the Act of 1955 it is clear that in the case of transfer of a portion or share of such a plot of land by one to which the provisions of pre-emption under Section 8 apply then notice was required to be issued to all the co-sharers of said plot of land who are not parties to the transfer and also for affixing a copy thereof on different places mentioned therein. It is thus palpable that if there is no co-sharer in the plot of land there is no question of issuing any notice under Section 5 (4) as well as for exercising any right of pre-emption by anybody. It has already been established that pre-emptor Gopal Chandra Mondal was not a co-sharer of the land of Sankar Nath Mondal and that there was no co-sharer in the land of Sankar Nath Mondal which was purchased by him from common owner Akshay Kumar Mondal. If that be the position then pre-emptor Gopal Chandra Mondal cannot exercise the right of pre-emption under Section 8 of the Act of 1955 even though he was an adjacent land owner of the plot of land, a portion of which was sold out by Sankar Nath Mondal to the petitioner pre-emptee by a kobala dated 25th of August, 2003. It appears that learned lower court of appeal failed to take note the principles of applicability of the right of pre-emption under Section 8 when there was no co-sharer in the plot of land, in its true perspective. As a result, the order impugned is liable to be set aside.
Accordingly, the revisional application is hereby allowed on contest but without costs.
The order impugned is hereby set aside.
O. P. pre-emptor is at liberty to withdraw the amount deposited by him in the court below according to law.
Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)