Calcutta High Court (Appellete Side)
Sri Subhas Chandra Bhowmik &Anr vs Sri Sudhamoy Manna on 4 July, 2014
Author: Asim Kumar Mondal
Bench: Asim Kumar Mondal
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C.O. 2462 OF 2012
04.07 .2014
Sri Subhas Chandra Bhowmik &Anr.
Vs.
Sri Sudhamoy Manna.
Mr. Amitava Das
Mr. Pingal Bhattacharyya
... for the petitioners.
Mr. Asish Bagchi
Mr. Satyajit Mondal
Mr. Suranjan Mondal
.... for the opposite party.
The present application under Article 227
of the Constitution of India has been filed
challenging an order and judgement dated
February 27th, 2012, passed by the learned
Additional District and Sessions Judge, 2nd
Court, Tamluk, Purba Midnapore in
Miscellaneous appeal No. 11 of 2011.
The present revisional application has
been filed by Sri Subhas Chandra Bhowmick
and Smt. Aparajita Bhowmick who initially as
petitioner / plaintiff filed application praying for
pre-emption under Section 8 & 9 of the West
Bengal Land Reforms Act before learned Court
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below which was registered as Judicial Misc.
Case No. 41 of 2005. The learned Court below,
Civil Judge (Junior Division), Haldia, Purba
Midnapore rejected the prayer for preemption
upon contested hearing of the parties.
Being aggrieved by and dissatisfied with
the said order of rejection an appeal was
preferred before the learned District Judge at
Purba Midnapore which was registered as Misc.
Appeal No. 01 of 2009 and same was heard and
decided by learned Additional District Judge,
First Track, 3rd Court Tamluk by an order dated
April 29th, 2009 remanding the case before the
Trial Court for fresh hearing after giving
opportunities to the parties to adduce further
evidences and also call for records on the
Governments office in order to show actual
services of notice upon the pre-emptors.
Learned Trial Court accordingly heard the
said Misc. Judicial case in terms of direction by
the learned Appellate Court and pass order
being No. 22 dated May 20th, 2010 allowing the
Misc. Case with a direction that the schedule
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land do vest to the petitioner and also the
alleged deed of sale date April 26th, 2004 do
vest to the petitioners.
Challenging the said order passed in
Judicial misc. Case No. 41 /2005 dated May
20th, 2010 the opposite parties Sri Sudhamoy
Manna preferred an appeal which was
registered as Miscellaneous appeal no. 11 of
2011 and heard and decided by learned
Additional and Sessions judge, 2nd Court at
Tamluk by allowing the said appeal and set
aside the impugned order being No. 32 dated
May 29th, 2010 passed by the learned Trial
Court vide order and judgement date February
27th, 2012.
Hence the present revisional application.
The brief fact of the case is as noted in the
judgement under challenge is
(i) the suit plot being No. 88
measuring more or less 1 acre 44
decimals of land originally
belonged to Girish Chandra Bhunia
and after his demise it was
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inherited by his wife Kusumbala
and two daughters of Girish
Chandra Bhuina.
(ii) On 26.11.1962 the wife and
daughters of Girish Chandra
Bhunia sold out 66 decimals of
land in the said plot by registered
deed of sale to the petitioner No.1.
Sri Subhas Chandra Bhowmick.
(iii) On 07.06. 1978 the two daughters
of Girish Chandra Bhunia
transferred 31½ decimals of land
by a registered deed of sale to
petitioner No. 2 i.e. Aparajita
Bhowmik.
(iv) On 11.03.1981 the wife of Girish
Chandra Bhunia transferred 14¾
decimals of land by a registered
deed of sale to petitioner No. 2.
(v) By the aforesaid sale petitioner No.
1 got 66 decimals of land and
petitioner No. 2 got 46¼ decimals
of land, totalling to 112¼ decimals
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of land and the rest portion of the
suit plot measuring more or less
32¾ decimals was in possession of
the predecessor of the opposite
party namely Rekha Rani Bhowmik
who purchased from the wife and
two daughters of Girish Chandra
Bhunia.
(vi) On 26th April, 2004 Rekha Rani
Bhowmik transferred 10 decimals
of land to the opposite party i.e.
Sudhamoy Manna who was the
appellant before the Lower
Appellate Court by registered deed
of sale dated 28th April, 2004 and at
the time of said transfer no notice
was served upon the petitioners.
(vii) On 10.07.2005 when the opposite
party came to take possession of
the land transferred to him at that
time the fact of said sale came to
knowledge of the petitioners.
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(viii) Thereafter the petitioners obtained
the certified copy of the deed of
sale from the registry office and
came to know that the transferor or
the transferee did not serve any
notice under Section 5(5) of the
West Bengal Land Reforms Act
upon the petitioners.
On the basis of above facts the
petitioner prayed for pre-emption under
Section 8 and 9 of the West Bengal Land
Reforms Act.
The opposite party entered into
appearance and contested the application.
The case of the opposite party is that Sri
Saroj Kumar Bhowmik is the father of
petitioner No. 1 and husband of petitioner
No. 2 and he being a villager of the
opposite party was acquainted with the
opposite party and opposite party used to
take advice from him regarding property
dealings.
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The transferee and the opposite party
namely Rekha Rani Bhowmik is the wife
of the brother of Sri Saroj Bhowmik and
she gave the proposal to the opposite
party for purchasing the 16 decimals of
land through Sri Saroj Bhowmik and the
petitioner asked Sri Saroj Bhowmik to
purchase the said land but he refused to
purchase the same.
Sri Saroj Bhowmik acted as a
mediator to the opposite party and the
transferee also fixed the consideration
price of the said land.
Sri Saroj Bhowmik was present
during the entire transaction between the
opposite party and the transferor and also
aware of the delivery of the possession on
the said land to the opposite party after
sale.
The application for pre-emption is
barred by limitation and that the
petitioners have waived their right of pre-
emption.
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The learned Court below as it
appears from the record was pleased to
dismiss the application for pre-emption on
the ground that the application was barred
by limitation.
Learned court below in view of
direction given in order and judgement
passed by learned District and Sessions
Judge, 3rd First Track Court, Purba
Midnapore in Miscellaneous Case No. 1
of 2009 took the evidence of one Amit
Ghorai L.D.C. attached to the office of
A.D.S.R., Sutahata as O.P.W. 3 and upon
consideration of evidences on record
allowed the application for pre-emption
for premises filed by the petitioners on the
ground that transferor or the transferee
has not discharge their duty of giving
notices to the co-sharers of the suit plot
and as such the petitioners are entitled to
get benefit under Article 137 of the
Limitation Act.
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Being aggrieved by and dissatisfied
with the said order the appellant /
opposite party has preferred a
Miscellaneous appeal before the District
and Sessions Judge, Tamluk which was
registered as Miscellaneous Appeal No.
11 of 2011 and dispose of by learned
Additional District and Sessions Judge,
2nd Court, Tamluk, Purba Midnapore.
The basic principle and the vital
requirement of provisions under Section
5(5) of the Act is that the transferor or the
transferee shall file notices giving
particulars of the transfer in the
prescribed form with process fee and the
concerned revenue officer or the
registering officer shall transmit the
notice to the prescribed authority for
service of notice and the prescribed
authority shall serve the notice upon the
co-sharers by registered post.
Learned Lower Appellate Court has
observed that the opposite party /
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appellant took necessary steps for service
of notice upon the co-sharers. In absence
of any contrary materials on record the
presumption should be that notices has
been served upon the co-sharers by the
prescribed authority in regular course of
their official business.
It has also been observed that the
mode of service of notice is only directory
or not mandatory. The learned Lower
Appellate court further observed that on
conjoint reading of the provisions of law
embodied of the transferor or the
transferee is to take steps for service of
notices as provided in the law. Learned
Court below held after considering the
evidence of O.P.W. 3 that appellants /
opposite parties took all necessary steps
required under the law for service of
notice upon the co-sharers. So, learned
Court below held that there was no
fraudulent intention on their part. It is
further observed by the learned Lower
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Appellate Court in the impugned
judgement that the impugned deed was
drafted in the house of Saroj Ranjan
Bhowmick and the deed writer was
engaged by Saroj Ranjan Bhowmick and
the stamp and paper for the deed was
purchased by Saroj Ranjan Bhowmick.
The O.P.W. 2 Rekha Rani Bhowmick
(transferor) prior to the execution of the
impugned deed disclosed her intention of
sale at the chamber of one Sudarshan and
at that time, her sister, Saroj Bhowmick,
Sudarshan and Aparajita were present. So,
learned trial Court opined that the
attorney of the petitioner / respondents
namely Dr. Saroj Ranjan Bhowmick had the knowledge of the impugned transfer made by the transferor Rekha Rani Bhowmick in favour of the appellant / opposite party by dint of the deed of sale dated 28.04.2004. Therefore, the respondents / petitioners through their constituted attorney Dr. Saroj Bhowmick 12 had the knowledge of such transfer made by Rekha Rani Bhowmick in favour of the appellant / opposite party Sudhamoy Manna.
Finally the learned Lower Appellate Court opined that the
petitioners / respondents cannot claim themselves to be non-notified co-sharers and as such they are not entitled to get the benefit of Article 137 which provides for the period of limitation of three years from the date of accrual of the right to apply for preemption.
Learned Lower appellate Court has held after considering the evidences on record that the respondents / petitioners had constructive notice of impugned transfer on July 2nd, 2004 and the period of limitation for filing the application for pre-emption under the Act shall be three months from such date of constructive notices of sale i.e. July 2nd, 2004. The application for pre-emption was filed on 13 July 26th, 2005 which is beyond the statutory period as provided under the law. So, the pre-emption under Section 8 and 9 of the West Bengal Land Reforms Act filed by the respondents / petitioners is barred by limitation.
Finally I would like to deal with the provision under Article 97 of the Limitation Act as pointed out by Mr. Bagchi, learned counsel appearing on behalf of the opposite party. The Article 97 runs as follows : -
" To enforce a right of pre-emption whether the right is founded or law the period of limitation is one year and period of limitation begins to run when the purchaser taken under sale sought to be impeached, a physical possession of the whole or part of the property sold, or whether the subject matter of the sale does not admit of physical possession of the whole or part of the property, when the instrument of sale is registered". 14
So, in the instant case we are to consider the date of registration i.e. the document of sale which was executed on April 26th, 2004 and finally registered on April 28th, 2004. The petition for pre- emption was filed on July 2nd, 2004 which is beyond one year of the registration of the deed in question as prescribed for limitation under Article 97 of the Limitation Act. In view of constructive knowledge of the notices / sale as it appears from the record is on July 26th, 2005 which is also beyond the period of limitation as prescribed under Article 97 of the Limitation Act. The application for pre-emption is no doubt time barred.
On careful perusal and on proper consideration of the submissions of learned Counsels of both parties as well as the citations referred and relied upon by the learned Counsels in respect of their respective submissions and also on proper consideration of facts and circumstances 15 and the observation of the learned Lower Appellate Court I do not find any scope to interfere into the order impugned sitting as a revisional court. The learned Lower Appellate Court has perfectly and correctly dealt with the submissions of learned Counsels for both the parties advanced before him in respect of their respective cases and dealt the provisions of law, as well as the evidences adduced by the parties.
In my considered view the judgement impugned should be affirmed in its form and merit. Thus, the revisional application is liable to be dismissed.
The revisional application is dismissed without costs. The order impugned dated February 27th, 2012 passed by the learned Additional District and Sessions Judge, 2nd Court, Tamluk, Purba Medinipur in Miscellaneous Appeal No. 11 of 2011 arising out of 16 Misc. Appeal No. 28 of 2010 is hereby affirmed.
Urgent Photostat Certified Copy of `this order if applied for be given to the parties on priority basis.
(Asim Kumar Mondal, J.)