Calcutta High Court (Appellete Side)
For The vs Mst. Domini Kuer on 6 October, 2016
Author: Harish Tandon
Bench: Harish Tandon
In The High Court At Calcutta
Civil Revisional Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
C.O. No. 2535 of 2016
(Bablu Mandal & Ors. -v- Sricharan Mondal)
With
C.O. No. 2536 of 2016
(Bablu Mandal & Ors. -v- Shyama Charan Mondal)
With
C.O. No. 2537 of 2016
(Bablu Mandal & Ors. -v- Bhulu Mondal & Anr.)
For the petitioner : Mr. Partha Pratim Roy,
: Mr. Dyutiman Banerjee.
For the opposite parties : Mr. Biswajit Basu,
: Ms. Manali Biswas.
Heard on : 14.07.16, 05.09.2016 & 19.09.2016
Judgment on : 06.10.2016
HARISH TANDON, J.:
These three revisional applications are at the instance of the common petitioners asserting the right of preemption conferred under Section 8 of the West Bengal Land Reforms Act, 1955 against each of the opposite parties.
The facts involved in these revisional applications are similar and identical and it would be a repetition of the facts if decided separately. Furthermore, the legal point urged in these revisional applications are virtually same and therefore, it would be convenient to take up these three revisional applications together.
The admitted facts in all these three revisional applications are that originally one Satya Priya Das owned and possessed all that the piece and parcel of agricultural land admeasuring 1.28 acres. By three several sale deeds executed on the same date i.e. 6th March, 1990 transferring, alienating and selling 64 decimals of well-demarcated land to Bhulu Mondal & Santosh Mondal who are the opposite parties in C.O. No. 2537 of 2016 at a consideration of Rs. 16,000/-. He sold well demarcated 32 decimals of land to Shyama Charan Mondal, the opposite party in C.O. 2536 of 2016. He further sold well-demarcated 32 decimals of land to Sricharan Mondal, the opposite party in C.O. No. 2535 of 2016 at different consideration. Alleging to be the bargadar of the said 1.28 acres of land on Dilip Mondal, the predecessor of the present petitioners, filed an application under Section 8 of the said Act. It is alleged by him that he is a recorded bargadar and the L.R. record of right would corroborate such facts. On the other hand, each of the parties denied the status of the original applicant. According to them, there was no bargadar under their vendor and the record of rights produced by the petitioner is manufactured one. Admittedly, the original applicant of the preemption application died on 9th January, 1996 and an application for substitution of his heir is taken out which was allowed by the trial court. When all the three preemption applications matured for final disposal, one of the heir namely Dilip Mondal, was nominated as bargadar on 22nd June, 2001 who deposed for and on behalf of the predecessor.
An argument was advanced before the learned Munsif that the preemption application is liable to fail firstly; that the entire plot of land was sold by three separate deeds executed on the same day in favour of the respective opposite parties which shall constitute a single transaction and, secondly, there was no subsisting right as bargadar between the period from the death of the original applicant and the appointment of said Dilip Mondal by the revenue officer and, therefore, the preemption application becomes defective. Ancillary the same, it was argued that all the heirs of the alleged deceased bargadar cannot be substituted in view of the provisions contained under Section 15A of the Act and the application therefor is bad for misjoinder of parties thirdly; the right of preemption should not only exist on the date of institution of the proceeding but must continue till the final order is passed. Since there was no bargadar between the interregnum period from 09.01.1996 when the original applicant dies and 22nd July, 2001, when the revenue officer nominated one of the heir, the preemption application is liable to fail.
The Trial Court dismissed the said application for preemption solely on the ground that if the entire plot of land is transferred even by executing and registering three several deeds in favour of different persons, it would constitute a single transaction. The plea that the right as bargadar was extinguished upon the death of the original applicant was negatived and another plea that the proceeding is bad for misjoinder as the provision contained under Order 22 of the Code of Civil Procedure is not applicable, was also turned down.
The order of the Munsif was carried to the District Judge, Murshidabad who transferred the said appeal to the Additional District Judge, 3rd Court, Behrampur. The Appellate Court framed three points for determination which are as follows:
" 1. Is the opinion of the Ld. trial Judge that the applications for preemption were not maintainable erroneous in law?
2. Are the findings of the Ld. trial court on bargadarship, nomination of one of legal heirs of deceased bargadar as bargadar by revenue officer erroneous, and based on no materials?
3. Is the impugned order otherwise bad in law and liable to be set aside.?"
The point no.1 was answered against the appellant/petitioner upholding the decision of the trial court that if the execution of the three several sale deeds divesting the entire plot of land or executed and registered on the same day, it would constitute a single transaction. The second point was also answered against the petitioners as the proceeding shall not fail if continued by more than one persons and ultimately one of such person is entitled to maintain the proceeding. Since none of the points favoured the petitioners, the point no.3 was answered against them as a consequence whereof the appeal was dismissed.
Mr. Partha Pratim Roy, the learned Advocate appearing for the petitioner raises a point that if a plot of land is sold to different persons by executing three several deeds, it is a three separate transactions and the moment, a part of the land is sold by executing the first sale deed, it brings the concept of co-sharership and the preemption application is thus maintainable. It is further submitted that the fundamental principles behind the concept of preemption is to avoid fragmentation of the plot of land and encourage the consolidation thereof and, therefore, it would be wrong to constitute three different transactions as single one. It is vehemently submitted that the application for preemption is filed before the Munsif who has a trapping of Court and therefore, the provision of Order 22 of the Code shall have its full applicability, in the event, the party to the proceeding dies. Lastly it is submitted that, even if, Section 15A of the Act provides that on the death of the bargadar, one of his heirs is entitled to cultivate the land to be nominated by all heirs or in the event, heirs do not nominate the Revenue Officer can nominate which has been done in the instant case, the application cannot fail for misjoinder of parties.
Mr. Basu, the learned Advocate appearing for the opposite party submits that the preemption application is not maintainable as the land was owned by a single person who sold well-demarcated portion to three different persons. He further submits that even otherwise the preemption application cannot be maintained as the entire land was sold on a single day by three different deeds which would constitute a single transaction. He audaciously submits that the provision of Order 22 of the Code of Civil Procedure shall not apply in view of Section 15A of the Act. In other words, he submits that the West Bengal Land Reforms Act, 1955 being a Special Act and if the right of cultivation is restricted to one heir, the other heirs cannot be brought on record by way of substitution upon the death of the original bargadar. He therefore prays for dismissal of the revisional application.
Both the Courts concurrently found that an application under Section 8 of the Act is not maintainable as the entire land was transferred by the admitted owner. Evidently, the land was originally owned by Suptapriya Das Adhikary @ Fakir and the record of rights also stands in his name in such capacity. It is also not in dispute that by three several sale deeds, the entire plot of land is sold, transferred and conveyed to the opposite parties of the respective revisional applications which were executed and registered on the same date. The questions which assumed importance in this regard is whether it would constitute a single transaction and secondly preemption application is maintainable if the common vendor sold well-demarcated portion of the plot of land to different persons.
On the first question, both the Courts relied upon a judgement of this Court in case of Sri Bhuban Chandra Samanta -v- Jamini Bhusan Kar reported in 1970 CLJ 349 and held that it would constitute a single transaction. In the said report, the admitted owner exeucted six(6) kobalas in favour of six different persons transferring the specific portions in their favour and the aforesaid deeds were registered on the same day. The raiyat of the adjoining landholder filed six applications for preemption under Section 8 of the said Act before the Revenue Officer who allowed the said claim. The Munsif who was the Appellate Authority under the unamended provision reversed the order of the Revenue Officer and dismissed the preemption application on the ground that there is no co-sharer of the holding and, therefore, right of preemption is not available. An argument was advanced on behalf of the preemptor that the moment, the first kobala is registered, the transferee therein would automatically become the co-sharer and the right to claim preemption accrues to the adjoining landholder against the subsequent transferees who are the strangers. Repelling the said contention, the Court held that if the raiyat transferred the entire plot of land to different persons with specified shares and the portions on the same day, it would tantamount to a single transaction the aforesaid observations are quoted as below:
"4. It was next contended by Mr. Bhunia that although the transfer by the kobalas were made on the same day and although all the kobalas were registered on the same day, as soon as the first transfer was made by the opposite party No. 2 in favour of opposite party No. 1, the opposite party No.1, the transferee, became the co- sharer of the transferor, the opposite party no.2, and the subsequent transfers not having been made in favour of opposite party no.1 who became the co-sharer, the petitoner being a contiguous raiyat was entitled to preempt the subsequent transferee who were all strangers. Attractive though the contention is, I am unable to accept the same. As aforesaid, the opposite party No. 2 executed six kobalas, all on April 6, 1964, thereby transferring the entire holding to different transferees in specific portions. The right of pre-emption arises only out of a valid and complete sale. A sale of immovable property is not complete until the registration of the document of sale is completed, and the registration of the document of sale is not complete till the document to be registered has been copied out in the records of the Registration Office as provided in section 61 of the Registration Act, Vide (1) Ram Saran Lall v. Mst. Domini Kuer, (1962) 2 SCR 474. In the instant cases, the kobalas were registered on the same day and there is no evidence at what point of time each document was copied in the records of the Registration Office. It has, however, been argued that each of the kobalas bears a serial number put by the registering authority at the time it was copied in the registration records. From the serial numbers of the kobalas, the order in which they were registered can be ascertained and as soon as that is done, it can be said with definite certainty which of these kobalas was registered first, so that the transferee under that kobalas will be the first transferee in point of time. Similarly the point of time in respect of the other kobalas can also be found. Even assuming that it is possible to ascertain the order of registration of the said kobalas, the contention of Mr. Bhunia cannot be accepted. When a raiyat transfers the entire holding to different persons in specific shares or portions, the transfer deeds having been executed on the same day and registered simultaneously on the same day and not on different dates, such transfers, in my view, are tantamount to a single transfer in respect of the entire holding, as if the transferees jointly purchased the holding by a single document, each purchasing a specific share or portion, so that there is no question of any right of pre-emption of a raiyat possessing land adjoining the holding, under section 8(1) of the Act."
Though the aforesaid judgement was delivered at a point of time when the amendment in Section 8 as it stood today was absent, yet this Court finds that there is no material changes having brought by the Amendment Act in this regard. By virtue of an Amending Act of 1972, the word "Revenue Officer" was deleted and substituted by the word "Munsif" having territorial jurisdiction. The other amendment having brought from time to time does not alter the ratio laid down in the said report. This Court, therefore, does not find that the contention of the petitioner that it should not constitute a single transaction is not tenable. Admittedly, in the instant case, three sale deed were executed by a common vendor divesting the specific portion of the plot of land to different opposite parties on the same day and the registration was also complete on the same day. In view of the ratio laid down in case of Bhuban Chan S (supra), this Court does not find any substance in the submission of the petitioner that both the Courts below have wrongly held that it would tantamount to single transaction.
An ancillary point on the above aspect is also taken whether the preemption application can at all be maintainable if a definite and demarcated portion is transferred by the admitted owner whether the preemption would lie.
In case of Sk Samser Ali -v- Serina Bibi reported in 2012 (2) CHN 694, the identical point arose and it was held that if the demarcated portion is sold by an admitted single owner of a plot of land, the purchaser thereof does not automatically become the co-sharer with the original owner in the following:
" 10. Having considered the respective submissions it is undisputed that the plot No. 633 comprised in 244 satak out of which 144 satak is a tank and the remaining 80 satak is an embankment. Admittedly the petitioners purchased 26 satak out of 80 satak prior to the purchase by the opposite party No. 1. The petitioner filed the record of rights before the Trial Court being Ext. 6 to show that their name has been recorded in respect of the said plot No. 633 as co-sharer. From the sale deed produced by the petitioner whereby the opposite party No. 2 sold 3 satak of land to one Manowara Bibi, the petitione No. 2 herein. It appears that a well demarcated portion has been sold. When an original owner has sold the well-demarcated portion it does not attract section 14 and the said purchase does not become the co- sharer along with the original owner. Admittedly the remaining portion of the larger property owned by the opposite party No. 2 being the original owner sold the same to the opposite party No. 1 and this it cannot be said that a portion or a part of the plot of land was sold."
The aforesaid principles is furthered in another co-ordinate bench decision rendered in case of Subal Mondal reported in 2014 (1) CHN (cal) 706 in these words:
" 17. the co-sharer of the raiyat in a plot of land has been defined in Section 2(6) as a person other than the raiyat who has an undemocratic 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."
The aforesaid decision does not appear to be unsound and opposed to the provisions of the said Act. Section 14 of the Act cannot stand in the way to the aforesaid principles. The said section has its applicability in the event the plot of land is owned by the co-sharer of a raiyat and cannot be extended where the entire plot of land is owned by a single person who divested his right, title and interest in a portion of a land with specific and definite demarcation.
Now the second point which is urged before this revisional court with regard to the applicability of the provision contained under Order 22 of the Code of Civil Procedure, the authority to deal with the claim of preemption under Section 8 of the Act was initially conferred upon the Revenue Officer. By West Bengal Land Reforms (Amendment) Act, 1972, such power and jurisdiction is vested upon the Munsif having territorial jurisdiction. Whether the Munsif enjoined such power as persona designata or acts as a Court within the four corners of Bengal, Agra & Asam Civil Courts Act, arose before the Division Bench in case of Tarapada Shome & Anr. -Vs- Parbati Charan Sarkar And Mohammad Jebbas Ali & Ors. -Vs- Rahima Bibi And Mainuddin Mondal -Vs- Samser Seikh & Anr. reported in 1983 (2) CLJ 44 where an application for amendment was taken out converting an application under Section 8 (1) of the Act into an application under Section 24 of the West Bengal Non-Agricultural Tenancy Act, 1949. An argument was advanced whether the Munsif having territorial jurisdiction acts as a Civil Court or merely persona designata. Though the said decision is not directly pointer to an issue involved in the instant case yet certain observations made therein may be of some beneficial interest. The Division Bench held that neither the West Bengal Land Reforms Act nor the Rules framed thereunder prescribed exhaustive procedure for disposal of an application under Section 8 & 9 of the said Act. It is further held that legal rights are the subject matter of a dispute in a preemption proceeding and the Munsif and the District Judge are not bound to act in any manner different from the civil jurisdiction. It is, therefore, manifest from the said decision that the Munsif is not a persona designata but acts as a Civil Court. The aforesaid view gets further support from a co-ordinate bench decision rendered in case of Pasupati Mondal -Vs- Debabrota Jana reported in (1999) 2 CLT 403 wherein it is held in explicit terms that the Munsif does not act as persona designata but as a Civil Court in the following words:
"11. In view of the decision reported in 1978(1) CLJ 299, the learned Munsif entertaining a pre-emption case under section 8 of the West Bengal Land Reforms Act cannot be called a persona designata. It is now settled that the Munsif entertaining a pre- emption application and disposing of that application under section 9 of the West Bengal Land Reforms Act does not act as a persona designata and acts as a civil court. If a Munsif can set aside the order of pre-emption passed ex parte by invoking the provisions of Order 9 Rule 13 CPC, there is no reason why he cannot invoke the provisions of Order 9 Rule 9 in order to set aside an order whereby he dismissed the application for pre-emption for default in appearance. It is true that sections 8 and 9 of the West Bengal Land Reforms Act do not specifically prescribe the procedure to be adopted by a Munsif when he finds either of the parties to a pre-emption case under section 8 of the Land Reforms Act or both the parties absent on the date or at the time when he takes up the pre-emption case for hearing. It is also true that the sections of the West Bengal Land Reforms Act do not also prescribe the procedure to be adopted when he dismisses the pre-emption case only for default in appearance of the pre-emptor and not on merits. A Munsif having territorial jurisdiction to entertain an application for pre-emption under section 8 of the Land Reforms Act is, in my view, for all practical purposes a civil court with all the power to be exercised by a civil court under the Civil Procedure Code unless the West Bengal Land Reforms Act prescribes a particular procedure to the contrary to be followed by the Munsif and the West Bengal Land Reforms Act is silent as to what a Munsif is to do when he finds the pre-emptor absent at the time of hearing of the pre-emption case. Certainly, he is to proceed in accordance with the provisions of Order 9 Rule 8 CPC and for the instant case, the learned Munsif while dismissing the pre-emption case for default in appearance on the part of the pre-emptor dismissed it virtually under Order 9 Rule 8 and the pre-emptor accordingly prayed for setting aside the order of dismissal and for restoration of the pre-emption case by filling and application under Order 9 Rule 9 CPC. Under order 43 Rule 1, an order allowing an application under Order 9 Rule 9 CPC is not available. As such, the objection that no revision lies under section 115 CPC against the impugned order is not sustainable. It is true that sub-section (6) of section 9 of the West Bengal Land Reforms Act confers a right of appeal upon a party aggrieved by an order of the Munsiff under section 9. A reading of section 9 makes it clear that the order contemplated under sub-section (6) of section 9 is an order disposing of an application under section 8 of the Land Reforms Act on merits and not one dismissing the application for default. In such view of the matter, it cannot be said that an appeal lay to the District Judge under sub section (6) of section 9 of the West Bengal Land Reforms Act against the order dated 18.3.93 dismissing the pre-emption case for default. The fact remains that the pre-emptor did appoint two learned advocates at two different points of time. From the two vakalatnamas available from the lower court record it would appear that Mr. Hrisikesh Giri was his erstwhile lawyer for the pre-emption case but subsequently in 1992, that is to say, long before the date of hearing of the pre-emption case, Mr. Sukumar Panda was engaged by him as his lawyer. Had it been the case that both Mr. Sukumar Panda and Mr. Hrisikesh Giri were engaged to be his lawyers at the time when be engaged Mr. S. Panda as his lawyer, the earlier vakalatnama executed in favour of Mr. H. Giri should have been accepted by Mr. S. Panda instead of accepting a fresh Vakalatnama being executed in his favour. It is true that there is nothing on record to suggest that the pre-emptor engaged the subsequent lawyer with the leave or consent of his previous lawyer. It seems that on 18.3.93 Mr. S. Panda was representing the pre-emptor. It is the positive case of the pre-emptee petitioner that Mr. Hrisikesh Giri was sent for by the court through peon and he appeared before the court on 18.3.93 to make the submission to the effect that he had no instructions from his client. Such submission does fit in with the circumstance that the pre-emptor was no longer communicating to his erstwhile lawyer Mr. Hrisikesh Panda to conduct his case. After all, it is not the case of the pre- emptee that Mr. S. Panda came before the court to submit that he had no instructions from his client."
In Tarapada (supra), the Division Bench held that Order 6 of the Code though not expressly made applicable to preemption proceeding, yet such power inheres with the Munsif and the District Judge as implied and incidental powers of the Court. It is, therefore, apparent from the aforesaid decisions that the preemption proceeding initiated before the Munsif is regulated and guided by a procedural law applicable to the said Court. Order 22 of the Code cannot be segregated and/or divorced therefrom and there is no difficulty on the part of the Munsif to entertain the applications which are otherwise maintainable in a regular civil proceeding. It is no longer res integra that though the preemption proceeding originates from an application to be filed under Section 8 of the Act, it is akin to a plaint.
In case of Probodh Chandra Samanta -v- State of W.B. & Ors; 86 CWN 294, the Rule was obtained challenging the legality and validity of the judgement of the Sub-Divisional Officer on the ground that all the heirs of the bargadar cannot be substituted and it is only the heir nominated by all heirs of the deceased bargadar has a right to continue with the proceeding. It was held that though one of the heirs of the bargadar may continue with the cultivation after the death of the recorded bargadar, all heirs may be substituted under the provision of Order 22 of the Code in these words:
"12. On the basis of the provisions of the said Act, there is no doubt that the heirs of a Bargadar, may continue with the cultivation when the Bargadra dies during cultivation and when such a Bargadar has filed a suit for declaration of his right and dies during the pendency of the proceeding, his legal heirs may be substituted, in terms of the determinations in the case of Nilmoni Pakera v. Kiriti Bhusan Banerjee & Ors (supra) notwithstanding the fact that the deceased was not cultivating the land at the time of his death. Such determinatin, in my view as appeared to have been made, supports the terms of Order XXII of the Code of Civil Procedure."
In a subsequent decision rendered in case of Bhootnath Sarkar, Paresh Chandra , an identical point was raised and was answered as follows:
"6. The petitioner has stated that the Respondents as mentioned above, in the said two separate applications claimed to be the heirs and legal representatives of the said adversary viz. deceased Nalinaksha Samanta. It was the case of the petitioner that such applications for substitution were not maintainable in law for continuation of right of cultivation of Bargadar's death were not applicable in that case. It was also claimed by the petitioner that there had also not been any determinations as to who would be the legal heir for the purpose of cultivation within the prescribed period."
What can be logically deduced from the aforesaid decision is that the preemption proceeding being an original proceeding is akin to a suit. The Munsif does not act as persona designata but as a Civil Court. Such proceeding shall be regulated and guided by the procedural law applicable to a suit or proceeding instituted before the said Court and Order 22 cannot be excluded therefrom.
Furthermore, the reference can also be made to Section 99 of the Code of Civil Procedure which provides that the appellate or the revisional court shall not dismiss the appeal or the revisional proceeding on the ground of misjoinder of necessary party. Even for the sake of an argument, it is accepted that right to maintain the preemption application continued with such heir nominated under Section 15 A of the Act yet the inclusion of the other heirs by way of substitution upon the death of the original bargadar cannot invalidate the proceeding.
The definition of a bargadar under Section 2 (2) of the Act clearly confers a right to cultivate the land of another person on condition of sharing the produce under Section 15 of the Act which says that the right of cultivation is inheritable and not transferrable. Section 15A was inserted by a West Bengal Land Reforms (Amendment) Act, 1970 and, thereafter, by West Bengal Act (XII) 1972 with retrospective effect from 13 July, 1970. By virtue of the said section which starts with non- obstante clause, the cultivation of the land may be continued by a lawful heir of a bargadar who died at the time when the cultivation was continuing but where there were more than one lawful heir, then all the lawful heirs of the bargadar may nominate one lawful heir to continue with such cultivation and if there is any omission or failure to nominate, the officer and authority prescribed under Section 18 (1) of the Act may nominate one of the lawful heirs of the bargadar to cultivate the land. The right to cultivate the land being heritable is being continued by one of the heirs of the deceased bargadar either nominated by all heirs or by a prescribed officer or authority under the aforesaid provision. The aforesaid point may have assumed importance if the preemption application is allowed by the Munsif and the bargadar dies during the pendency of an appeal. This Court feels that such point has become obliterated in view of the facts that both the Court rejected an application for preemption on other ground than the misjoinder of parties, the aforesaid point shall not be deemed to have been finally decided in this revisional application and may be appropriately dealt with if the occasion so arise.
However, this Court finds that the preemption application is liable to be dismissed on merit as the entire plot of land was transferred by the admitted sole owner by three different deeds executed and registered on the same day which tantamount to single transaction. Furthermore, the admitted owner transferred well-demarcated portion to each of the opposite parties and, therefore, the concept of co-sharer of a raiyat in a plot of land is not applicable.
All the revisional applications are, therefore, dismissed. However, there shall be no order as to costs.
(Harish Tandon, J.)