Calcutta High Court (Appellete Side)
Bhelupada Saha @ Velupada Saha vs Prahallad Ghosh & Ors on 26 March, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CO No. 1131 of 2016
Bhelupada Saha @ Velupada Saha
-Versus-
Prahallad Ghosh & Ors.
For the Petitioners: Mr. Abhishek Prasad, Adv.
For the Defendant No.1: Mr. Sukanta Chakraborty, Adv.,
Mr. Nanda Lal Agarwal, Adv.,
Mr. Arup Kumar Chatterjee, Adv.,
Mr. Pinaki Brata Ghosh, Adv.,
M. Susmita Mazumder, Adv.,
Heard on: February 14, 2019.
Judgment on: March 26, 2019.
BIBEK CHAUDHURI, J. : -
1.This revisional application is directed against a judgment and order of reversal dated 8th January, 2016 passed by the learned Additional District Judge, Fast Track, First Court at Malda in Misc Appeal No.30 of 2013 setting aside the judgment and order dated 8th July, 2013 passed by the learned Civil Judge (Junior Division) 1st Court at Malda in Misc Preemption Case No.34 of 2011.
2
2. Misc Preemption Case No.34 of 2011 was dismissed on contest on the ground that the impugned sale for which preemption was sought for was not an out and out sale and by virtue of impugned deed, the case land was not transferred in favour of the preemptee.
3. In appeal, however the learned First Appellate Judge allowed Misc Appeal No.30 of 2013 holding, inter alia, that the impugned deed was a deed of sale and the preemptor is entitled to preempt the case land.
4. In his application under Section 8 of the West Bengal Land Reforms Act, the opposite party as petitioner stated that one Mahendra Ghosh, predecessor-in-interest of opposite parties No.2-6 was the original owner in respect of a piece and parcel of land situated in plot No.36 and 37 of khatian No.148 of mouza Gabindapur within PS Engrajbazar. By a deed of sale executed and registered on 6th January, 2011 and 10th January, 2011 respectively the said Mahendra Ghosh sold out the said property (hereafter described as the case land) in favour of the present petitioner at a consideration price of Rs.1,23,814/- only. The opposite party further claimed that he was the owner of 27½ decimal of land in plot No.36 by purchase by virtue of a registered deed of sale dated 14th March, 1984. He also claimed to be the owner of 12 decimal of land in plot No.37 by virtue of a registered deed of sale dated 13th July, 1988. Thus, it was pleaded by the opposite party that he was the co-sharer as well as contiguous tenant of the case land. The predecessor-in-interest of 3 opposite parties No.2-6 transferred the case land without serving statutory notice under Section 5 of the said Act. Therefore, he prayed for preemption of the case land.
5. The present petitioner as opposite party No.1 contested the preemption misc case by filing a written objection. It was specifically pleaded by the present petitioner that the impugned deed is not a deed of sale, but a security for loan transaction. The fact remains, the predecessor-in-interest of opposite parties No.2-6 requested for loan of Rs.1,25,000/- from the petitioner to meet the expenses of his daughter's marriage. The petitioner agreed to pay the said amount and predecessor- in-interest of opposite parties No.2-6 executed a so-called deed of sale as security for the loan. On the self same date another unregistered deed was executed by the opposite party No.1 in favour of his so-called vendor for reconveyance on repayment of the loan amount.
6. Mr. Abhishek Prasad, learned Advocate for the preemptee/petitioner submits that the learned First Appellate Court was wrong in holding that the impugned transaction dated 10th January, 2011 was out and out sale by the predecessor-in-interest of opposite parties No.2-6 in favour of the petitioner and therefore the opposite party No.1 was entitled to preempt the sale in question. In support of his contention, he refers to an unregistered deed of reconveyance (ekrarnama Ext-B) executed on the same date of execution of the deed of sale wherein and 4 whereunder the petitioner agreed to execute a deed of reconveyance on repayment of the consideration money by the predecessor-in-interest of opposite parties No.2-6 within one year from the date of execution of the sale deed. By referring to the recital of the said "ekrarnama" it is urged by Mr. Prasad that the said deed of sale dated 10th January, 2011 is in the nature of security for loan transaction. It is also found from the said document that the case land was all along under the possession of the predecessor-in-interest of opposite parties No.2-6, i.e. the vendor of the petitioner. Thus, from the said 'ekrarnama' it is ascertained that possession of the case land was never transferred in favour of the petitioner. It is urged by Mr. Prasad that transfer of possession of the property sold is one of the essential conditions of valid sale. In the instant case possession of the property was all along with the vendor.
7. Mr. Prasad, learned Advocate for the petitioner next invites my attention to page No.12 of the Paper Book which is a copy of plaint of Title Suit No.144 of 2011 instituted by the said Mahendra Ghosh, since deceased against the petitioner praying for a decree directing the defendant/petitioner to execute and register a deed of reconveyance in favour of him in respect of the case land and other consequential reliefs. He also refers to the written statement filed by the petitioner at page No.18 of the Paper Book wherefrom it is ascertained that the petitioner admitted execution of ekrarnama in favour of the said Mahendra Ghosh on 6th January, 2011 and further admitted that the case land was all along in possession of the vendor of the petitioner.
5
8. Thus, it is contended by the learned Advocate for the petitioner that the impugned deed is not a deed of sale but a security for loan transaction. Secondly, no right of ownership and possession were transferred in favour of the petitioner by virtue of the impugned deed of sale. Therefore, the opposite party No.1 is not entitled to preemption as prayed for by him.
9. Mr. Prasad further submits that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. Sub-section 1 of Section 92 of the Evidence Act applies in such case. In the instant case, ekrarnama executed by the petitioner in favour of his vendor on the same day of execution of the so- called deed of sale amply proves that the transaction between petitioner and his vendor was not an out and out sale, but a deed of security for loan transaction and accordingly, preemption under Section 8 of the said Act is not available to the opposite party No.1. In support of his contention, he refers to a decision of Supreme Court in Gangabai W/O Rambilas Gilda vs. Chhabubai W/O Pukharajji Gandhi reported in AIR 1982 SC 20.
10. It is further submitted by Mr. Prasad that the learned Appellate Court committed gross error in holding that the ekrarnama executed by and between the petitioner and his vendor was a manufactured document. In this regard, it is also argued by Mr. Prasad that in a 6 preemption proceeding, the scope of the Trial Court as well as the Appellate Court is very limited to consider as to whether a portion or share of a plot of land was transferred to a person, other than a Bargadar or a co-sharer or a contiguous tenant by a deed of sale and secondly whether the applicant is entitled to preempt the impugned sale or not. When an issue regarding specific performance of ekrarnama in favour of the vendor of the petitioner has been raised in Title Suit No.144 of 2011, the preemption proceeding ought to have been heard and disposed of analogously with the aforesaid suit.
11. Thus, he invites the court to set aside the impugned judgment and order passed by the learned Additional District Judge, Fast Track, First Court at Malda in Misc Appeal No.30 of 2013.
12. Mr. Sukanta Chakraborty, learned Advocate for opposite party No.1, on the other hand submits that the recital of the impugned deed of sale clearly suggests that the transaction was out and out sale and ekrarnama had no effect on the deed of sale executed by Mahendra Ghosh, since deceased in favour of the present petitioner.
13. The impugned deed of sale was executed on 6th January, 2011 and registered on 10th January, 2011. In the said deed of sale, the vendor declared that due to urgent need of money, he declared to sale the case land and the petitioner proposed to purchase the same at highest market price. So the case land was sold out in favour of the present petitioner at consideration price of Rs.1,23,814/-. In the said deed of sale, the vendor candidly and unequivocally declared that simultaneously with the 7 execution of the deed of sale, he delivered peaceful possession of the case land in favour of the petitioner. It was not stated in the deed of sale that the vendor of the petitioner was in urgent need of money for his daughter's marriage and he executed the impugned deed as security for a loan of Rs.1,23,814/- and on the same date the petitioner executed an ekrarnama in favour of his vendor. According to Mr. Chakraborty, the purported ekrarnama, being a subsequent document, did not create any encumbrance over the impugned sale. So long the deed of sale is enforce, the opposite party No.1 has every right to preempt the sale in question.
14. In support of his argument he refers to a decision of this Court in the case of Sheikh Lokeman Ali vs. Abdul Motalib and another reported in 50 CWN 807. The above report relates to an application for preemption under Section 26F(1) of the Bengal Tenancy Act. In the said reported decision, the petitioner was one of the co-sharers in possession of a raiyati holding. Other co-sharers transferred some other lands of the same holding to the opposite party No.1 Abdul Motalib by a registered deed of sale dated 19th February, 1944. Abdul Motalib again transferred his land to opposite party No.2 Samsuzzoha. A question as to whether the petitioner being one of the co-sharers of the land in question which was sold out to Abdul Motalib, could preempt the same when the preemptee sold out the case land in favour of opposite party No.2 came up for consideration by this court. This court was pleased to hold that Sheikh Lokman Ali being a co-sharer of Abdul Motalib's vendor at the time of transfer to Abdul Motalib, could certainly invoke the provision of Section 8 26F(1) of the Act. It was held that opposite party No.2 bought the property from Abdul Motalib subject to the right of the petitioner to preempt and that when the petitioner exercised his right within the time prescribed by law, he was entitled to recover the property from opposite party No.2. Referring to the above decision, it is submitted by the learned Counsel for the opposite party that the opposite party can preempt the property even if there was an ekrarnama executed in favour of the predecessor-in- interest of the opposite parties No.2-6.
15. Learned Advocate for the opposite parties next refers to another decision of this Court in the case of Tarapada Karati vs. Sudhamoy Dolui and Others reported in 53 CWN 678. Facts of the above mentioned reported decision are that one Menaka Bala Dasi sold her 1/3 share to one Nirapada Dolui by a registered deed of sale dated 13th August, 1946. It was contended that prior to execution of the sale deed the parties to the sale verbally agreed that if the vendor was able to repay the consideration money with interest at 8% per annum within a certain period of time, the purchaser would be bound to reconvey the property to her. The said agreement for reconveyance was reduced to writing on September 23, 1946. The petitioner filed an application for preemption on 8th November, 1946. This court held that the application for preemption under Section 26F of the Bengal Tenancy Act is maintainable in respect of the sale by Menaka Bala Dasi to Nirapada Dolui on 13th August, 1946. On the same issue, Mr. Chakraborty also refers to another decision of this court in the 9 case of Nishi Kanta Das vs. Jnanendra Nath Mondal and others reported in 57 CWN 253.
16. Thus, it is submitted by Mr. Chakraborty that the impugned deed dated 6th January, 2011 and registered on 10th January, 2011 is an out and out sale. The agreement for reconveyance is a subsequent document, though executed on the same date on which the deed of sale was executed. Since in the recital of the deed of sale, there is nothing in respect of obtaining loan by the vendor of the present petitioner and execution of ekrarnama, the said two documents cannot be held to be constituted one single transaction. Therefore, the opposite party No.1 being a co-sharer had every right to preempt the sale in question and the learned Appellate Court on appreciation of the evidence on record, came to a right decision which cannot be disturbed.
17. It is not disputed that on 6th January, 2011 Mahendra Ghosh, since deceased executed a deed of sale in respect of the case land in favour of the petitioner. On the same date the petitioner executed an unregistered ekrarnama in favour of his vendor declaring, inter alia, that on payment of the consideration money, within one year from the date of execution of the sale deed, the petitioner would execute a deed of reconveyance in favour of his vendor.
18. It is the settled proposition of law that if an agreement to reconvey is treated as a separate transaction, then under Section 54 of the Transfer of Property Act, it vests no interest in the property and need not be registered. But if the document which has not been registered, is really a 10 part and parcel of the transaction, which is only partly executed by the registered document, then it is clear that the other document also requires to be registered. In other words, when a transaction is executed by a document, which is in effect divided into two parts, one of which is registered and other is not, than the law looks to what is the real transaction between the parties, and demands that the whole document evidencing that transaction must also be registered, whether it consist in one or separate document.
19. Bearing the above principle in mind, it is found on assessment of the materials on record of the instant case that the registered deed of sale did not postulate any condition as to the agreement for reconveyance. The agreement for reconveyance or ekrarnama is a document executed separately by the petitioner. Therefore, the impugned sale is independent of an agreement for reconveyance.
20. Under such circumstances, in view of the principles led down by this Court in Tarapada Karati (supra) and Nishi Kanta Das (supra), which, I conceive, is the true proposition, the learned First Appellate Court rightly held that the opposite party No.1 is entitled to preempt the impugned sale by virtue of which the case land was transferred to the petitioner.
21. On factual aspect, both the courts held that opposite party No.1 is a co-sharer in respect of plot No.36 and 37 and khatian No.148 of mouza Gabindapur. The vendor of the petitioner was also a co-sharer in respect 11 of the said plots which was sold by him to the petitioner who is a stranger purchaser.
22. It was contended by the learned Advocate for the petitioner that the vendor of the petitioner transferred his entire share in the above mentioned two plots of land and therefore, preemption under Section 8 of the said Act is not permissible. The issue as to whether preemption under Section 8 of the said Act is permissible in case of transfer of the entire share by a co-sharer in favour of a stranger purchaser has been decided conclusively by the Division Bench of this Court on reference of the conflicting decisions in the case of Naymul Haque @ Nainul Haque vs. Allauddin Sk in CO No.1164 of 2015 decided on 8th August, 2018. It was held by the Division Bench that even if entire share of a plot of land is transferred in favour of a third party, a bargadar or an adjacent land owner or a cosharer, as the case may be, has the right of preemption. No other point has been raised by the learned Counsel for the parties in course of hearing of the instant revision.
23. In view of the above discussion the revisional application fails and the same is dismissed on contest, however, without cost.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.)