Calcutta High Court (Appellete Side)
Naymul Haque @ Naimul Haque vs Alauddin Sk on 3 March, 2016
Author: Soumen Sen
Bench: Soumen Sen
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48 03.03. C.O. 1164 of 2015
AGM 2016
Naymul Haque @ Naimul Haque
Vs.
Alauddin Sk
Mr. Partha Pratim Roy,
.... For the Petitioner.
Mr. Biswarup Biswas,
.... For the Opposite Party.
This revisional application is arising out of a
judgment dated 7th January, 2015 in Misc. Appeal
No.65/2014 [05/2014] passed by the Additional District
Judge, Jangipur, Murshidabad.
The Misc. Appeal was filed by the preemptor/petitioner against the order
dated 17th December, 2009 passed by the learned Civil Judge (Junior Division), 1st
Court, Jangipur in Misc. Case No.04/2008 dismissing the petition filed by the
preemptor/petitioner under Section 8 of the West Bengal Land Reforms Act, 1955.
The petitioner filed the petition under Section 8 of the West Bengal Land Reforms
Act on the ground that the property in question originally belonged to Radhakanta
Mitra and his name was recorded in the R.S.R.O.R. The said Radhakanta Mitra
transferred or sold half of the suit property, i.e, 48 decimals of land of Plot No.2208
of Mouza - Secundra in favour of Lalchand @ Lalu Ghosh, Ramenchandra Ghosh @
Alu Ghosh, Nagendranath Ghosh @ Nagen Ghosh, Ratilal Ghosh @ Rati Ghosh,
Patitpaban Ghosh @ Patit Ghosh and Ratanlal Ghosh @ Ratan Ghosh. The said
transferees thereby became the owners of the property and remained in possession of
the suit plot in ejmal and during their possession they amicably partitioned the said
property.
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When Radhakanta Mitra was intending to sell the remaining 48 decimals of
land, Hemangini Ghosh, mother of Ratan Ghosh purchased the said 48 decimals of
land by a registered deed being No.4517 dated 18th April, 1987 and thereafter, said
Hemangini Ghosh became the owner of 48 decimals of the eastern portion of the
land. The petitioner alleged that after the death of Hemangini Ghosh, her legal heirs
inherited 48 decimals of land and while the said legal heirs of Hemangini Ghosh
were intending to sell the said 48 decimals of land, the petitioner and his four other
brothers, namely, Nazrul Islam, Mostafa Sk, Murtaza Sk and Serajul Sk purchased
33 decimals of land by virtue of a registered deed being No.3214 and remaining 15
decimals of land remained in possession of the legal heirs of Hemangini Ghosh. It
was contended that while Ratanlal Ghosh was in possession of 8 decimals of land, he
transferred the same to the petitioner by way of a registered deed of sale. According
to the petitioner, Ratilal Ghosh and Lalchand Ghosh thereafter transferred their 8
decimals land each to the petitioner and his three brothers and to Rajib Sk by way of
a registered deed of sale being No.8668 of 2006. The petitioner, thus, asserted that
they became the owner of 20.8 decimals of land. It was also asserted that the
petitioner and his three brothers and legal heirs of deceased Nazrul Islam are in
possession of the eastern portion of 48 decimals of land in ejmal. The petitioner
contends that she is the raiyat in respect of the land forming the subject suit plot. It is
further alleged that the western side portion of the said plot belonged to Ramchandra,
Nagen and Patit and after their demise their legal heirs became the owner and in
possession of the said land. The petitioner alleged that on enquiry it was found that
on 4th December, 2006, the legal heirs of Ramchandra, Nagen and Patit transferred
their share by a registered deed which was subsequently registered on 6th November,
2007. The petitioner contends that the schedule mentioned in the said deed is
fictitious. The petitioner claimed that he was entitled to pre-empt the said portion of
land for which he had deposited the deed value and compensation amounting to
Rs.1,48,500/- by way of challan. The petitioner, accordingly, claimed pre-emption
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by filing the said petition under Section 8 of the West Bengal Land Reforms Act,
1955. The opposite party/respondent contested the said proceeding by filing a
written objection. In the said objection, the opposite party contended that the opposite party/respondent had transferred their entire share in favour of opposite party/respondent and his brothers and in view of the provisions of Section 8 of the West Bengal Land Reforms Act, 1955 the petitioner/appellant is not entitled to claim pre-emption. The opposite party and his brothers purchased 48 decimals of land of the suit plot by a registered deed and thereafter the opposite party and his brothers also purchased the remaining share of the vendor by two separate deeds on the same date and as a result whereof the petitioner/appellant has no cause of action to initiate the said proceeding. On consideration of material on record, the learned Civil Judge found that the petitioner became a co-sharer in respect of the suit property having regard to the fact that three sons of Surendra Nath Ghosh have transferred their entire share in the property by two separate sale deeds and in view thereof the petitioner is not entitled to claim pre-emption.
The trial Court has relied upon a decision of the Calcutta High Court in Kinkar Mahato Vs. Sahan Mahato reported at 2005 (3) ICC 5 in arriving at the conclusion that since the entire interest of the raiyat in the plot of land in question was sold by raiyat in favour of the pre-emptee, the application for pre-emption must fail. The issue before the appellate Court was whether the vendor of the opposite party/respondent transferred his entire share in the suit plot in favour of the opposite party leaving no further land in his possession. The appellate Court on scrutiny of the exhibited documents found that the vendors of the opposite party disposed of his entire share by executing and registering two deeds of sale on the same date. The appellate Court has relied upon a decision of the Calcutta High Court in Sri Bhuban Chandra Samanta Vs. Jamini Bhusan Kar & Ors. reported at 1970 CLJ 349 and held that in view of the observations made in the said decision that when a raiyat transfers the entire holding to different persons in specific shares on the same date, 4 such transfers are tantamount to a single transfer in respect of 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 preemption of a raiyat possessing land adjoining the holding, under Section 8 (1) of the West Bengal Land Reforms Act, 1955. The appellate Court has also relied upon Section 54 of the Transfer of Property Act and concluded that when exclusive owner sells entire property to different transferees by different sale deeds executed on the same date, all the transfers should be treated as one and composite. The appellate Court also considered the amendment of the Act in the year 2000 when certain changes were effected in the law of pre-emption by substituting the word "plot of land of a raiyat"
in the place of "holding of a raiyat". In view of such amendment, in order to exercise the right of pre-emption, the pre-emptor would have to show that only a portion of share of a plot of land of the raiyat had been sold to any person other than the co-
sharer in the plot of land. This observation is made on the basis of the decision in Kinkar Mahato (supra). The appellate Court found that the petitioner has failed to prove that a specific portion of the share of land of the raiyat has been transferred.
On the contrary, the material of the case record of Misc. Case No.04/2008 (L.R.) would depict that the opposite party has proved that the vendors of the opposite parties have transferred their entire share in the land of the raiyat. The appellate Court further observed that for the purpose of proving the pre-emption of land, the petitioner would be required to prove that he has no ceiling surplus land. According to the provisions of Section 14 (M) of the W.B.L.R. Act, the petitioner is bound to prove that he has no ceiling surplus land when he is intending to exercise his right of pre-emption. In the instant case, the petitioner did not take any steps for proving that he has no ceiling surplus land. The appellate Court, however, has noticed a subsequent decision of the Calcutta High Court in Biswanath Sarkar & Anr. Vs. Sunit Kumar Saha reported at 2013 (3) WBLR 271 (Cal) in which it was held that if a co-sharer is holding an undivided undemarcated share in respect of a plot of land 5 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-sharer under Section 8 of the West Bengal Land Reforms Act, 1955. The appellate Court noticing the apparent conflict between the two decisions accepted the earlier decision, namely, Kinkar Mahato (supra), relying upon a decision of the Calcutta High Court in CESC Limited & Anr. Vs. Board of Councillors, Bhatpara Municipality & Ors. reported at 2003 (1) CHN 648 which says that in the case of conflicting decisions of two Benches on equal strength, the former decision would prevail. The appellate Court, accordingly, relying upon the decision in Kinkar Mahato (supra) dismissed the appeal.
The learned Counsel appearing for the petitioner submits that on the basis of the materials on record even if it is accepted that the vendors of the opposite parties have transferred their entire share in the land of the raiyat in view of the later decision of this Court in Biswanath Sarkar (supra) and a later decision in Sk.
Sajhan Ali Vs. Sk. Saber Ali reported at 2015 (3) CHN 689 (Cal) and in absence of a partition coming within the purview of Section 14 of the W.B.L.R Act, 1955, the impugned orders are required to be set aside.
In Biswanath Sarkar (supra) four brothers purchased 60 decimals of land from Bhajaharial Pal and Khiroda Bala Pal by a registered deed of sale dated 21st April, 1979 in respect of the Plot No.480, Mouza-Kanturka. The brothers were in joint possession until 7th January, 2007 when Jitendra Nath Sarkar sold, transferred and conveyed 15 decimals of land to the opposite party for a valuable consideration.
The petitioners being the other two brothers filed an application under Section 8 of the West Bengal Land Reforms Act, 1955 claiming pre-emption as co-sharers.
According to the petitioners, the said plot of land, measuring 60 decimals in Plot No.480, was jointly purchased by four brothers and, therefore, the said property is unpartitioned and undemarcated. The defence taken by the opposite party before the trial Court was that the said co-sharer was possessing the said property exclusively 6 and has sold the well-demarcated portion to them by executing and registering the deed of sale. It is further contended that when the entire share or a plot of land is transferred, the application for pre-emption under Section 8 of the said Act does not lie. Therefore, the Court was invited to decide as to whether the property is undemarcated or is well-demarcated and was partitioned amongst the original owner.
An argument was advanced on behalf of Biswanath that the co-sharer shall mean a person having an undemarcated portion of plot of land along with the raiyat and since the vendor of Biswanath was possessing an exclusive and demarcated portion, there is legal presumption of the partition amongst the co-sharers. The learned single Judge interpreted Section 8 of the West Bengal Land Reforms Act, 1955 and observed:-
"19. Having considered the respective submissions, Section 8 of the West Bengal Land Reforms Act, 1955 relates to the right of pre- emption of a bargadar, co-sharer raiyat and the contiguous plot holder, in case a portion or share of a plot of land of a raiyat is transferred to any person, other than the co-sharer. Proviso attached to the said Section contains the order of the precedence whereas sub-section (2) provides the exception where the preemption cannot be claimed under the said provision.
20. The expression "portion or share of a plot of land of a raiyat"
leaves no room of doubt that if the entire property is sold by the raiyat, the preemption cannot be claimed under Section 8 of the said Act.
20. Dr. Mondal tried to impress upon this Court that the word "share of a plot of land of a raiyat" necessarily implies the transfer of a portion of the said share and not the whole of the share, which is transferred by the raiyat.
22. I am afraid that such interpretation would lead to an absurdity.
23. The legislature does not use any word or expression unnecessarily.
The word used in the legislation carries a definite meaning and purposes. The legislature consciously used the word " or" before the word "portion" and "share" which necessarily implies that if a portion of a plot of land of a raiyat or the share of the plot of land 7 of a raiyat is transferred to any person, the right of pre-emption is bestowed upon the co-sharers or the bargadar or the adjoining plot holder.
24. If the interpretation, which Dr. Mondal tried to make, is taken then it is only in case where a portion of a share of a raiyat, who is holding the said share undemarcated, undivided and unpartitioned, then only the said pre-emption can be claimed and not otherwise.
25. This Court has no hesitation to hold that if a co-sharer is holding an undivided, undemarcated 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 West Bengal Land Reforms Act, 1955."
It appears from the said judgment that the attention of the learned Single Judge was not drawn to an earlier decision of our Court in Kinkar Mahato (supra). However, in a later decision rendered on 10th March, 2015, the learned Single Judge considered Kinkar Mahato (supra) and held that the judgment in Kinkar Mahato (supra) is not a good law and a decision per incurium.
In Kinkar Mahato (supra) the opposite parties as pre-emptors filed an application for pre-emption under Section 8 of the W.B.L.R. Act for exercising the right of pre-emption in respect of the transfer of the plot of land made by Sakhi Mahato in favour of the petitioners on the ground of co-sharership. The petitioners contested the proceeding by challenging the maintainability of the said petition on the ground that the transferor, namely, Sakhi Mahato sold his entire share. The trial Judge allowed the said objection. However, the appellate Court allowed the appeal by holding that since Sakhi Mahato being a co-sharer raiyat, transferred his undivided share in the plot in question, the application for pre-emption is maintainable, as by 8 such transfer the entire plot in question was not transferred but only a share in it was transferred. According to the learned appellate Court, even if the entire share of a co- sharer raiyat is transferred, still then an application for pre-emption can be maintained inasmuch as such transfer of a fractional interest in the plot of land does not tantamount to transfer of the entire plot of land. The appellate Court was of the view that it is only when the entire plot in question is sold then only the right of pre- emption cannot be exercised either by the co-sharers or by the continuous owner or by a bargadar. On consideration of the materials on record it was held:-
"13. I have considered the order impugned. It appears from the order impugned that it is an admitted position that the transferor, viz., Sakhi Mahato had 1/6th share in the plots in question and he transferred his entire 1/6th share in the plots in question to the petitioners. There is nothing on record to show that even after such transfer, some share was retained by the transferor in the said land. If that be so, then no one can come to the conclusion that it is a case of transfer of a portion or share of a plot of land of a raiyat in order to attract the provisions of Section 8 of the West Bengal Land Reforms Act.
14. Section 8 of the West Bengal Land Reforms Act makes it clear that the right of pre-emption can be exercised either by the co-sharer raiyat or by the adjoining land owner or by the bargadar only when a portion or share of a plot of land of a raiyat is transferred to any person other than the co-sharer raiyat in the plot of land.
14. The said provision makes it clear that it is only when a co-sharer raiyat transfers a portion of the share of his interest in the plot of land, then only, the right of pre-emption can be exercised by the aforesaid persons.
14. The aforesaid position of land was settled by the Hon'ble Court on repeated occasions. Reference may be made to the following decisions where it was uniformly decided by this Court that when the entire holding of a raiyat is transferred, the right of pre- emption cannot be exercised by the pre-emptors:-
(1) Misri Show v. Belur Nikunjamoyee Gadar
Institution reported in 1978 (1) CLJ 532:
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(1) Gadadhar Ghosh v. Sastidhar Ghose reported in
2002 CLJ 423;
(1) Netai Chandra Das v. Sisir Kumar Das reported
in 67 CWN 333.
14. It is, however, true that by the amendment of 2000, certain changes was effected in the law of pre-emption by substituting the words "plot of land of a raiyat" in the place of "holding of a raiyat". In view of such amendment, now in order to exercise the right of pre- emption, the pre-emptor will have to show that only a portion of share of a plot of land of the raiyat had been sold to any person other than the co-sharer of a raiyat in the plot of land. Thus, after such amendment, the right of pre-emption cannot be exercised even if it is found that the raiyat retains some land in his holding even after the sale of the land which was sought to be pre-empted by the pre-emptor.
14. Now, applying the said test, it appears that the entire interest of the raiyat in the plot of land in question was sold by raiyat in favour of the pre-emptees. As such, the right to exercise pre-emption has not accrued in favour of the pre-emptees."
Mr. Partha Pratim Roy, learned advocate for the petitioner relied upon an unreported judgment (Amar Nath Rana -vs- Ram Chandra Pal) in RVW 2844 of 2004 with CAN 7595 of 2004 in C.O. 695 of 2004 and submits that in the said judgment it was held that even if the entire portion or share of the plot of land is transferred, a pre-emption proceeding would still be maintainable.
The observation of the learned Single Judge in this regard is:
" Mr. Mukherjee contends that if Section 8 of the West Bengal Land Reforms Act is read along with 10 Section 4 and having in mind the broad scheme and objective of the Land Reforms Act, it can be easily stated that only where a portion or share of a plot of land of a raiyat shall be transferred, the question of exercising a right of pre-emption would arise because the sole purpose of enacting Section 8 was to prevent fragmentation of land.
Mr. Mukherjee with reference to the original pre- emption application, particularly para 2, 4 and 6 contends that according to the statement of the petitioner himself, the entire share of a particular raiyat was transferred and since in the clear language of Section 8, there cannot arise any question of pre-emption of that particular share which was not a portion or share of a particular plot.
Mr. Mahato, on the other hand, contends that the order of pre-emption passed by this Court on 27th July, 2004, was quite in conformity with the statutory provision contained in Section 8, of the W.B.L.R. Act. Mr. Mahato contends that at the Schedule of the property mentioned in the original pre-emption application, it was clearly stated that two-and-a-half decimal of land of plot no. 114, which was three decimal in all was sought to be transferred and that portion, was the subject matter of the pre-emption application. Mr. Mahato has also referred to the finding of the First Appellate Court, hwere at page 3 of the judgment, the First Appellate Court also recorded that part of plot no. 114 was sought to be pre-empted and that pre-emption was rejected by the Court below for other reason.
Mr. Mahato contends that the purport of Section 8 has already been upheld by several judgements and Mr. Mahato, in this context, has referred to a decision reported in 2002, Valume-iv, Calcutta High Court Note, page 285, Para 7. Thus, Mr. Mahato contends that the new point now taken by the petitioner of the review application to stall the order of pre-emption has got no legal force and the review application itself is liable to be rejected.
I have carefully considered the submissions of both Mr. Mukherjee and Mr. Mahato. So far I gather from the submission of Mr. Mukherjee, his main contention in support of the review application is the interpretation of Section 8 of the W.B.L.R. Act, 11 which should be read in conjunction with Section 4 of the same Act and also keeping in mind the scheme and objective of the Act.
From plain reading of the pre-emption application and with particular reference to the Schedule of the property, I find that the land sought to be pre-empted was part of a plot, namely, 114 and the First Appellate Court in its judgement clearly observed that the pre-empted land was a part of the land."
A Special Leave Petition preferred against the said judgment was also dismissed on 11.8.2011. The order of the Hon'ble Supreme Court reads :
" We have gone through the impugned orders dated 27.07.2004 and 24.04.2006 passed by the High Court of Calcutta and perused the record of the case. We are of the opinion that there is no infirmity in the impugned orders and hence they do not call for out interference.
Having no merit the Appeal stands dismissed. No costs."
Thus, there are conflicting views on the interpretation of the word 'or' in Section 8 (1) of the West Bengal Land Reforms Act, 1955. While Kinkar Mahato (supra) interpreted the word 'or' as 'of', the subsequent decisions in Biswanath Sarkar (supra) and Sk. Sajhan Ali (supra) held the word 'or' to be disjunctive. As to whether the word 'or' should be read as 'of' as held in Kinkar Mahato (supra) or it should be treated as disjunctive, needs to be resolved.12
In view of the conflicting decisions of two co-
ordinate benches of this Court, let this matter be placed before the Hon'ble Chief Justice to constitute an appropriate Bench to resolve the issue.
The opposite parties shall not transfer and/or alienate and/or encumber the suit property until the disposal of the application.
( Soumen Sen, J.)