Calcutta High Court (Appellete Side)
Sri Apurba Sarkar vs Sri Arabinda Adhikary And Another on 7 August, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 1059 of 2019
Sri Apurba Sarkar
Vs.
Sri Arabinda Adhikary and another
For the petitioner : Mr. Puspendu Bikash Sahu,
Mr. Amarendra Nath Rays,
Mr. Prasanta Bishal
For the opposite parties : Mr. M. Rahaman,
Mr. Sankar Paul
Hearing concluded on : 25.07.2019
Judgment on : 07.08.2019
Sabyasachi Bhattacharyya, J.:‐
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1.The preemptee in a proceeding for pre‐emption under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as "the 1955 Act") has preferred the instant application under Article 227 of the Constitution of India, challenging a judgement of affirmance, whereby both the courts below allowed the pre‐emption application on the ground of co‐sharership.
2. The brief facts of the case are as follows:
3. The original owner of the property‐in‐question, namely Madhusudan Adhikary, had .54 sataks of land in plot no. 977 (old plot no. 727). He gifted the suit property, measuring about .06 sataks out of the said .54 sataks, by three registered deeds dated February 14, 1985, May 14, 1991 and February 27, 1992 to Kartick Ch. Mondal and Sujoy Mondal, the vendors of the preemptee. As per the claim of the preemptee, the said gift deeds conveyed specifically demarcated properties. Subsequently the original owner sold .05 sataks (also demarcated according to the preemptee), out of the said .54 sataks by a registered deed dated December 15, 1996 to the pre‐emptors.
4. The preemptee purchased the entire .06 satak property belonging to Kartick and Sujoy, as mentioned above, by a registered sale deed dated September 21, 2010, which is the subject‐matter of the pre‐emption application.
5. The pre‐emptors/opposite parties filed the pre‐emption case, bearing Miscellaneous Case No. 63 of 2010, on December 16, 2010, on the dual grounds of co‐sharership and contiguous ownership.
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6. The trial court allowed the pre‐emption application on the ground of co‐sharership by its order dated April 28, 2017, against which the pre‐emptee/petitioner preferred Miscellaneous Appeal No. 11 of 2017. The appeal was dismissed vide judgment and order dated December 19, 2018, thereby affirming the order of the trial court, dismissing the pre‐emption application.
7. Being aggrieved by the aforesaid judgment of affirmance, the pre‐emptee has preferred the instant application under Article 227 of the Constitution of India.
8. Learned counsel for the petitioner submits that four grounds of challenge were taken by the petitioner in the courts below:
(i) The vendors of the preemptee sold their entire land to the preemptee and not a portion or share of their land;
(ii) Specifically demarcated lands were transferred all through, starting from the original owner to the preemptee;
(iii) Consideration actually paid was more than that shown in the deed sought to be pre‐empted; thus the pre‐emptors/petitioners deposited less than the actual consideration; and
(iv) The land sought to be pre‐empted was Bastu and thus pre‐emption did not lie under Section 8 of the 1955 Act.
9. Learned counsel for the petitioner, in his usual fairness, did not press grounds no.
(iii) and (iv) above in view of the prevalent position of law in that regard. 4
10. Learned counsel for the petitioner submits that the deed of transfer, regarding which pre‐emption is sought, was executed by the vendors of the preemptee in respect of the said vendors' entire property owned in the plot‐in‐question. As such, it is argued that pre‐emption did not lie under Section 8 of the 1955 Act.
11. Learned counsel cites a judgment reported at AIR 2019 Cal 67 [Dilip Kumar Dhara & Anr. Vs. Ranjit Kumar Mondal], wherein a single Judge held that an application for pre‐emption under Section 8 of the 1955 Act lies only if a portion or share of a plot of land of a raiyat, and not the entire plot, is transferred.
12. Learned counsel, moving on to the second ground of challenge, argues that the deeds of transfer in favour of the preemptee and preemptors all go on to show that specific demarcated lands were transferred by those deeds. It is submitted that since the original owner, namely, Madhusudan Adhikary, had transferred specific demarcated portions to the to the predecessors‐in‐interest of the preemptee as well as to the preemptors, Section 14 of the 1955 Act was not attracted at all.
13. Learned counsel places reliance on a judgment reported at 2012(2) CHN (Cal) 694 [Sk. Samser Ali vs. Serina Bibi], for the proposition that when an original owner has sold a well‐demarcated portion, Section 14 of the 1955 Act is not attracted and the purchaser does not become a co‐sharer along with the original owner.
14. Learned counsel next relies on a judgment reported at (2016)2 WBLR (Cal) 314 [Narendra Kumar Singh & Anr. Vs. Smt. Gursharan Kaur & Ors.], wherein a co‐ 5 ordinate bench re‐asserted the same proposition as regards purchase of demarcated lands.
15. The next judgment cited on behalf of the petitioner is Monoranjan Senapati vs. Chabi Karan reported at 2018(4) CHN (Cal) 89, wherein the same proposition was reiterated.
16. It is thus argued on behalf of the petitioner that the courts below acted without jurisdiction in entertaining the application for pre‐emption, since the vendors of the preemptee had sold their entire land in the concerned plot to the preemptee/petitioner. Moreover, such pre‐emption could not be granted on the ground of co‐sharership by placing reliance on Section 14 of the 1955 Act, where the said provision was not attracted at all in view of the original vendor having transferred demarcated portions in favour of the pre‐emptors as well as the pre‐ emptee.
17. As regards the ground of vicinage, since the trial court did not grant pre‐emption on such ground and no cross‐objection was preferred on behalf of the pre‐ emptor/opposite parties in the appellate court, the said ground of pre‐emption could not now be urged by the opposite parties.
18. In any event, since the entire land of the vendors was sold to the preemptee, the question of pre‐emption on either of the grounds, co‐sharership or vicinage, does not arise.
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19. Learned counsel for the preemptors/opposite parties argues that the deeds‐in‐ question would show that the property transferred by the original owner did not pertain to specifically demarcated portions but were only undemarcated shares in the concerned plots.
20. By placing reliance on the schedules of the respective deeds of the pre‐emptors and the pre‐emptee, learned counsel for the opposite parties stresses that the transfers were in respect of undemarcated lands.
21. As such, it is argued that Section 14 of the 1955 Act prevails and, in the absence of any partition decree or registered partition deed having been effected in respect of the properties‐in‐question, the pre‐emptors were rightly found to be co‐sharers by the courts below.
22. Even as regards vicinage, it is argued, an issue was framed by the trial court and argument was advanced up to the appellate court. As such, the petitioner was not correct in contending that the opposite parties relinquished the ground of vicinage at any point of time, as an alternative to the ground of co‐sharership.
23. Learned counsel for the opposite parties cites a judgment reported at (2013) 3 WBLR (Cal) 271 [Biswanath Sarkar & Anr. Vs. Sunit Kumar Saha], rendered by a co‐ordinate bench, in support of the proposition that if a co‐sharer is holding an undivided, un‐ demarcated share in respect of a plot of land and if he sells the said share to any person other than the co‐sharer, the right of pre‐emption is conferred or bestowed upon the other co‐sharers under Section 8 of the 1955 Act.
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24. Learned counsel for the opposite parties also cites a judgment of the same co‐ ordinate bench reported at (2015) 3 CHN 689 [Sk. Sajhan Ali and others vs. Sk. Saber Ali and others], in support of the proposition that pre‐emption is maintainable even when the entire share or portion of a plot of land is transferred by a raiyat to any other person other than a co‐sharer raiyat.
25. Lastly, learned counsel for the opposite parties cites an unreported judgment of a co‐ordinate bench dated February 21, 2019, passed in C.O. No. 3259 of 2015 [Dipankar Biswas vs. Bulu Sundori Biswas & ors.], in support of the proposition that even if the entire share of a co‐sharer in a plot of land is transferred, the provisions of Section 8 of the 1955 Act get attracted and an application for pre‐emption is maintainable.
26. Upon a consideration of the materials on record, it appears from the transfer deeds executed by the original owner in favour of the preemptors that demarcated portions were intended to be sold by the said deeds. Since the original owner chose to transfer a demarcated portion of his land to the preemptors, there arose no question of Section 14 of the 1955 Act being invoked. Only a joint property can be partitioned, either by a decree or by a registered deed. In the event the original absolute owner of the entire plot chooses to demarcate and transfer specific portions of his land, the initial transfer becomes that of a separate demarcated land. The jointness of the property, at least vis‐à‐vis the purchasers of such demarcated portions, is severed and the said purchasers cannot label themselves as co‐sharers. 8
27. As regards the question of contiguous ownership, although an issue was framed in the court of first instance, the same was not decided at all at length by either of the courts below, obviously in view of the ground of co‐sharership having been held in favour of the preemptors.
28. The question of maintainability of a pre‐emption application under Section 8 of the 1955 Act in case of transfer of the entire land held by a raiyat presents more of a dilemma, in view of conflicting views having been taken by the two latest judgments of learned Single Judges of this court, cited respectively by the parties. In Dilip Kumar Dhara (supra), the Single Judge referred to all the relevant judgments, including a division bench judgment of this court, rendered on a reference, and a judgment of the Supreme Court on pre‐emption.
29. The subsequent judgment in Dipankar Biswas (supra) was also rendered by a learned Single Judge, considering many of the judgments referred to in Dilip Kumar Dhara, including the division bench judgment and the Supreme Court judgment holding the field for some time, both of which were considered in Dilip Kumar Dhara.
30. However, the judgment in Dilip Kumar Dhara was passed on January 17, 2019, whereas that in Dipankar Biswas was passed subsequently on February 21, 2019. The latter judgment did not consider Dilip Kumar Dhara (supra) which was, in all fairness to the learned Single Judge of Dipankar Biswas, not placed before the said bench.
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31. As to the binding effect inter se the said two co‐ordinate bench judgments, which discussed and considered most of the previous judgments, no precedent was cited on behalf of the parties.
32. As such, as an exception to the rule that parties should be heard on judgments referred to by the court, the judgment reported at (2004) 11 SCC 26 [State of Punjab and another Vs. Devans Modern Breweries Ltd. and another] is taken as a guideline. The said judgment is a landmark decision covering most of the previous judgments in the field. Since the question here is the mode to be adopted by this court in view of a conflict of judgments, and not the merits of the case, it would not be much of an injustice if the said landmark judgment is referred to for guidance, even without putting the parties on notice as regards the same.
33. The relevant paragraphs of the said judgment of State of Punjab (supra) are set out below:
"339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. (See Pradip Chandra Parija v. Pramod Chandra Patnaik [(2002) 1 SCC 1] , SCC at paras 6 and 7; followed in Union of India v. Hansoli Devi [(2002) 7 SCC 273] , SCC at para 2.) But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores [AIR 1966 SC 1686 : (1966) 1 SCR 865] and K.K. Narula [AIR 1967 SC 1368 : (1967) 3 SCR 50] both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision proposed by the majority. 10
340. In Halsburyʹs Laws of England (4th Edn.), Vol. 26 at pp. 297‐98, para 578, it is stated:
"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 (Young v. Bristol Aeroplane Co. Ltd. [(1944) 1 KB 718 : (1944) 2 All ER 293 (CA)] , KB at p. 729 : All ER at p. 300. In Huddersfield Police Authority v. Watson [1947 KB 842 : (1947) 2 All ER 193] Lord Goddard, C.J. said that a decision was given per incuriam when a case or statute had not been brought to the courtʹs attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute); 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 [Young v. Bristol Aeroplane Co. Ltd. [(1944) 1 KB 718 : (1944) 2 All ER 293 (CA)] , KB at p. 729 : All ER at p. 300. See also Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. [(1941) 1 KB 675 : (1941) 2 All ER 11 (CA)] For a Divisional Court decision disregarded by that court as being per incuriam, see Nicholas v. Penny [(1950) 2 KB 466 : (1950) 2 All ER 89] .] A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties (Morelle Ltd. v. Wakeling [(1955) 2 QB 379 : (1955) 1 All ER 708 (CA)] ), or because the court had not the benefit of the best argument (Bryers v. Canadian Pacific Steamships Ltd. [(1957) 1 QB 134 : (1956) 3 All ER 560 (CA)] , per Singleton, L.J.; affd.
sub nom. Canadian Pacific Steamships Ltd. v. Bryers [1958 AC 485 : (1957) 3 All ER 572 (HL)] ), 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 (A. and J. Mucklow Ltd. v. IRC [1954 Ch 615 : (1954) 2 All ER 508 (CA)] ; Morelle Ltd. v. Wakeling [(1955) 2 QB 379 : (1955) 1 All ER 708 (CA)] . See also Bonsor v. Musiciansʹ Union [1954 Ch 479 : (1954) 1 All ER 822 (CA)] where the per incuriam contention was rejected and, on appeal to the House of Lords, although the House overruled the case which bound the Court of Appeal, the House agreed that that court had been bound by it: see Bonsor v. Musiciansʹ Union [1956 AC 104 : (1955) 3 All ER 518 (HL)] ). Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, 11 the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake (Williams v. Glasbrook Bros. Ltd. [(1947) 2 All ER 884 (CA)] )."
341. In Vijay Laxmi Sadho (Dr.) v. Jagdish [(2001) 2 SCC 247 : JT (2001) 1 SC 382] it has been observed as follows: (SCC p. 256, para 33) "33. As the learned Single Judge was not in agreement with the view expressed in Devilal case [Devilal v. Kinkar Narmada Prasad, Election Petition No. 9 of 1980 (MP)] it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress that the said course was not followed. It is well settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether, on the basis of 'different arguments' or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs."
342. In State of Bihar v. Kalika Kuer [(2003) 5 SCC 448 : JT (2003) 4 SC 489] a Bench of this Court upon taking a large number of decisions into consideration observed: (SCC p. 454, para 10) "10. Looking at the matter, in view of what has been held to mean by per incuriam, we find that such element of rendering a decision in ignorance of any provision of the statute or the judicial authority of binding nature, is not the reason indicated by the Full Bench in the impugned judgment, while saying that the decision in the case of Ramkrit Singh [Ramkrit Singh v. State of Bihar, AIR 1979 Pat 250 : 1979 Pat LJR 161 (FB)] was rendered per incuriam."
(emphasis in original) It was further opined: (SCC p. 454, para 10) 12 "The earlier judgment may seem to be not correct yet it will have the binding effect on the later Bench of coordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two days -- either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits."
343. It is also trite that the binding precedents which are authoritative in nature and are meant to be applied should not be ignored on application of the doctrine of sub silentio or per incuriam without assigning specific reasons therefor. I, for one, do not see as to how Kalyani Stores [AIR 1966 SC 1686 : (1966) 1 SCR 865] and K.K. Narula [AIR 1967 SC 1368 :
(1967) 3 SCR 50] read together can be said to have been passed sub silentio or rendered per incuriam."
34. The principle laid down in the said judgment is that an earlier judgment of a co‐ ordinate bench has binding effect on a latter bench of the same strength and the subsequent co‐ordinate bench should follow the decision of the earlier co‐ordinate bench. In the event of disagreement with the principles of law enunciated by another bench, the matter may be referred only to a larger bench. It was further held that 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 co‐ordinate jurisdiction which covered the case before it, in which case it must decide which case to follow. It was further held that a decision was given per incuriam when 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.
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35. Although, under normal circumstances, referring the question of maintainability of a pre‐emption application, in case of transfer of the entire land of the vendors in favour of the preemptee, to a larger bench would be an alternative, in the instant case such course of action is unwarranted, not only because the same would create further harassment and delay for the parties who have already been litigating for quite some time, but also because of the principle laid down in State of Punjab (supra).
36. With utmost respect, the learned Single Judge deciding Dipankar Biswas (supra) was not supplied with the previous co‐ordinate bench judgment of Dilip Kumar Dhara, which decided exactly the same issue, virtually by considering the same previous judgments. As such, the judgment rendered by the learned Single Judge in the subsequent case of Dipankar Biswas (supra) overlooked the ratio laid down in the earlier co‐ordinate bench decision of Dilip Kumar Dhara (supra), which operated as a binding precedent on the latter bench. Thus, the decision of Dipankar Biswas (supra) was per incuriam for ignoring the previous co‐ordinate bench judgment in Dilip Kumar Dhara, on the question as to whether pre‐emption lies under Section 8 of the 1955 Act in case the entire land of a vendor is transferred to the preemptee.
37. Following the ratio laid down in Dilip Kumar Dhara, it has been the consistent view of the Calcutta High Court that pre‐emption does not lie if the entire land of a vendor is sold to the preemptee, but only if a portion or share of land held by a raiyat (subsequently of a plot of land) is transferred. As held in Dilip Kumar Dhara, the division bench judgment of Naymul Haque alias Nainul Haque Vs. Allauddin Sk. 14 was passed on reference on a different question than the present one and as such, is not germane regarding the question at hand. The judgment of the Supreme Court rendered in Chhana Rani Saha Vs. Mani Pal alias Kaltu Pal was also rendered on a different aspect, thus having no binding value as a precedent on the present question of maintainability of a pre‐emption case in case of transfer of the entire land of the vendor.
38. Hence, since the entire land of the vendors was sold to the preemptee/petitioner in the present case, the courts below acted without jurisdiction in allowing the application for pre‐emption.
39. In view of the above discussion, the impugned orders cannot be sustained. Accordingly, C.O. No. 1059 of 2019 is allowed on contest, thereby setting aside the impugned order and dismissing the application for pre‐emption filed by the opposite parties under Section 8 of the West Bengal Land Reforms Act, 1955.
40. There will be no order as to costs.
41. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )