Calcutta High Court (Appellete Side)
Nibedita Saha @ Nivedita Saha vs Kabita Dasgupta on 15 January, 2014
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. 232 of 2012
Nibedita Saha @ Nivedita Saha
-vs-
Kabita Dasgupta
For the petitioners : Mr. Asis Bagchi
For the opposite party : Mr. Bidyut Banerjee,
: Ms. Shila Sarkar.
Judgment on: 15th January, 2014
HARISH TANDON, J.:
This revisional application is directed against an order dated 24 November, 2011 passed by learned Additional District Judge, 1st Court, Malda in Miscellaneous Appeal No. 11 of 2011 reversing the judgment and order dated February 25, 2011 passed by learned Civil Judge (Junior Division), 1st Court, Malda in pre-emption Miscellaneous Case No. 13 of 2002 and allowing an application filed under Section 8 of the West Bengal Land Reforms Act, 1955.
The petitioner purchased the plot of land forming the subject matter in the original proceeding by a dint of purchase dated March 2, 2000 which was finally registered on March 16, 2000. The opposite party claimed to have purchased an undivided share of the larger plot by registered deed dated November 27, 1992. The opposite party laid his claim as a co-sharer of the said plot of land and initiated a proceeding under Section 8 of the West Bengal Land Reforms Act, 1955 on April 17, 2002. It is alleged in a said pre-emption proceeding that the opposite party is a non-notified co-sharer and he came to know of the execution and registration of the said deed after obtaining the certified copy on 12.04.2002 and immediately thereafter, the instant proceeding was initiated.
The petitioner contested the said proceeding basically on two grounds firstly, that there is a prescribed period of limitation for filing an application under Section 8 of the said Act and admittedly the said application having taken out beyond the prescribed period provided therein; secondly, the plot in question is a bastu land and the pre- emption proceeding is not maintainable.
So far as the first ground of defence is concerned, the opposite party took the stand that he is a non-notified co-sharer as the notice contemplated under Section 5 (5) of the said Act was never served. To meet the second point of defence, it is stated that the definition of plot of land as defined under the said Act includes the Homestead and, therefore, the preemption is very much maintainable in respect of a bastu land as well.
The Trial Court decided the pre-emption proceeding on the first point of defence only and held that the application under Section 8 of the said Act was filed beyond the statutory period provided therein and dismissed the said proceeding. The Appellate Court not only deals with the point of limitation but also another point whether the preemption under Section 8 of the West Bengal Land Reforms Act, 1956 is available in respect of the bastu land as well.
The petitioner submits that the preemption proceeding under Section 8 of the West Bengal Land Reforms Act, 1956 is an original proceeding and the period of limitation provided therein cannot be extended under Section 5 of the Limitation Act.
In support of the said contention, the reliance is placed upon a judgment of the Supreme Court in case of Gopal Sardar -vs- Karuna Sardar reported in 2004 (1) CLJ 209 (SC). It is further submitted that even in case of a non-notified co-sharer, the preemption proceeding under Section 8 of the said Act is required to be instituted within the period of limitation prescribed under Article 97 of the Limitation Act i.e. one year from the date of completion of sale and not under Article 137 of the Limitation Act and placed reliance upon a judgment of the Co- ordinate Bench in case of Prasanna Kumar Nag -vs- Prokash Chandra Poddar reported in 2009 (4) CHN 197. By placing reliance upon a judgment of the another co-ordinate bench rendered in case of Punit Singh -vs- Sri Gour @ Gobinda Chandra Das & Ors., reported in (2007) 3 WBLR (Cal) 93 and Smt. Tarulata Mahanta -vs- Sri Haripada Sarkar reported in 2012 (2) CLJ 354 (Cal), it is submitted that the pre-emption in respect of a bastu land does not come within the scope of ambit of Section 8 of the West Bengal Land Reforms Act.
From the respective submissions, it is gathered that the dispute relates to maintainability of the pre-emption proceeding filed beyond the period of limitation enshrined under Section 8 of the Land Reforms Act, 1956 and whether the preemption proceeding is maintainable in respect of a bastu land.
Before dealing with the points so canvassed, it would be apt to quote Section 8 of the West Bengal Land Reforms Act, 1956 which reads thus:
"8. Right to purchase by co-sharer or contiguous tenant.- (1) If a portion or share of a plot of land of a raiyat is transferred to any person other than a co-sharer of a raiyat in the plot of land, the bargadar in the plot of land may, within three months of the date of such transfer, or any co-sharer of a raiyat in the plot of land may, within three months of the service of the notice given under sub- section (5) of section 5, or any raiyat possessing land adjoining such plot of land may, within four months of the date of such transfer, apply to the Munsif having territorial jurisdiction, for transfer of the said portion or share of the plot of land to him, subject to the limit mentioned in section 14M, on deposit of the consideration money together with a further sum of ten per cent of that amount:
(2)nothing in this section shall apply to-
(a) a transfer by exchange or by partition, or
(b) a transfer by bequest or gift, or hiba-bil-ewaz, or
(c) a mortgage mentioned in section 7, or
(d) a transfer for charitable or religious purposes or both without reservation of any pecuniary benefit for any individual, or
(e) a transfer of land in favour of a bargadar in respect of such land if after such transfer, the transferee holds as a raiyat land not exceeding one acre in area in the aggregate."
(3). Every application pending before a Revenue Officer at the commencement of section 7 of the West Bengal Land Reforms (Amendment) Act, 1972 shall, on such commencement, stand transferred to, and disposed of by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every such application shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provision of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972."
From the meaningful reading of the aforesaid provisions, it appears that a proceeding under the aforesaid provisions can be taken out by bargadar, co-sharer raiyat of a plot of land and raiyat possessing land adjacent to such plot of land. Different periods of limitations are provided for the respective categories as indicated above. This Court is not concerned so far as the right of pre-emption provided for bargadar or raiyat possessing an adjoining land but certainly concerns with the right of the co-sharer raiyat and the period of limitation provided therein. In case of a co-sharer raiyat, the application under Section 8 of the West Bengal Land Reforms Act, 1956 is to be taken within three months from the date of the service of notice given under Sub-Section 5 of Section 5 of the said Act. It would be relevant to quote Section 5 which reads under:
"5. Transferability of plots of land of a raiyat. (1) A transfer of the plot of land of a raiyat or a share or portion thereof shall be made by an instrument which must be registered and the registering officer shall not accept for registration any such instrument unless-
(a) the sale price, or where there is no sale price, the value of the plot of land or portion or share thereof transferred, is stated therein;
(b) there is tendered along with it-
(i) a notice giving the particulars of the transfer in the prescribed form for transmission of the prescribed authority;
(ii) such notices and process fees as may be required by sub-
section (4);
(c) the purpose for which the land shall be used by the transferee is stated therein; and
(d) such purpose for use of the land by the transferee is consistent with the purpose for which the land was settled or was being used and is not contrary to the provisions of section 4B, section 4C, Section 4E or Section 49.
(2) In case of bequest of such plot of land or portion or share thereof, no Court shall grant Probate or Letters of Administration until the applicant files in the prescribed form a notice giving particulars of the bequest together with the prescribed process fees for transmission to the prescribed authority.
(3) No Court or Revenue Officer shall confirm the sale of such a plot of land or portion or share thereof put to sale in execution of a decree or certificate and no Court shall make a decree or order absolute for foreclosure of a mortgage of such a plot of land or portion or share thereof, until the purchaser of the mortgagee, as the case may be, files a notice or notices similar to, and deposits process fees of the same amount as that referred to in sub-section (1).
(4) if the transfer of a portion or share of such a plot of land be one to which the provisions of section 8 apply, there shall be filed by the transferor or transferee notices giving particulars of the transfer in the prescribed form together with the process fees prescribed for the service thereof on all the co-sharers of the said plot of land who are not parties to the transfer and for affixing a copy thereof in the office of the registering officer of the Court house or the office of the Revenue Officer, as the case may be, as well as for affixing a copy on the plot of land.
(5) The Court, the Revenue Officer or the registering officer, as the case may be, shall transmit the notice to the authority referred to in sub-
clause (I) of clause (b) of sub-section (1) who shall serve the notices on the co-sharers referred to in sub-section (4) by registered post and shall cause copies of the notice to be affixed on the plot of land and in the court house or in the office of the Revenue Officer, or of the registering officer, as the case may be."
The meaningful reading of the language implied under Section 5 of the said Act makes it imperative on the registering authority to deny the acceptance for registration of any instrument where a transfer of a plot of land of a raiyat or a share or portion thereof is made unless the sale price or the value of the plot of land or a portion share thereof is tendered in a prescribed form and such notices and process fees should also be enclosed. Sub- Section 4 thereof makes it obligatory on the part of the transferor or transferee to file notices given particulars in the prescribed form together with the process fees for service on all the co- sharer of the said plot of land who are not the parties to such transfer. Sub-Section 5 thereof requires the service of the notices on the co-sharer by registered post as well as affixation.
It is not in dispute that the parties are not in variance so far as the status of the opposite parties as the co-sharer raiyat of a plot of land is concerned; what is required to be dealt with is whether the period of limitation in respect of a proceeding initiated by a non-notified co-sharer shall be governed by Article 137 of the Limitation Act or under Article 97 of the Limitation Act.
In Gopal Sardar (supra), the Supreme Court categorically held that Article 137 certainly does not apply even in case of a non-notified co- sharer as there is a specific period provided for a suit for pre-emption under Article 97 which is one year from the date of the completion of transfer in the following:
" In Article 97 of the Schedule appended to the Limitation Act under the heading suits relating to miscellaneous matters there is reference to enforcement of rights of pre-emption. Thus, there is reference to suits in Section 8 and Article 97 of the Limitation Act, but there is no reference to an application for enforcement of right of pre-emption. Having regard to the fact that the Act is a self- contained Code in relation to the enforcement of rights of preemption and looking to the provisions of the Limitation Act, as stated above, it appears to us that when one applies for enforcement of rights of preemption under Section 8 of the Act, the proceedings initiated are in the nature of a suit. The words "application" and "suit" have been defined in Section 2 (b) and 2 (1) of the Limitation Act. "Application" includes a petition but "suit"
does not include an appeal or an application. The Division Bench of the Calcutta in Serish Maji (supra), after elaborate consideration, referring to various decisions and on analysis of different provisions, in paras 25 to 50 of the judgment has concluded that a proceeding initiated by an application of Section 8 is to be construed as a "suit" for the purpose of the Limitation Act. We have good reason to approve the said view. This being the position, Section 5 of the Limitation Act is not attracted to the proceedings initiated under Section 8 of the Act."
(Emphasis supplied) The Supreme Court in the above quoted observation categorically held that the application under Section 8 of the West Bengal Land Reforms Act is an original proceeding and, therefore, be construed as a suit for the purpose of limitation. By construing the above observation of the Apex Court in case of Gopal Sardar (supra), the Co-ordinate Bench in case of Prasanna Kumar Nag (supra) held that the preemption proceeding under the West Bengal Land Reforms Act is not governed under Article 137 of the Limitation Act but Article 97 thereof in these words:
"5. This Court is unable to accept such contention of the learned Advocate of the petitioners in view of the decision of the Hon'ble Supreme Court in the case of Gopal Sardar vs. Karuna Sarda, reported in 2004 (2) CHN 164, wherein it was held that since the application for pre-emption should be regarded as a plaint and though the initiation of the said proceeding for pre-emption is made on presentation of the petition., but such petition, for all practical purposes should be regarded as a plaint and the said proceeding should be regarded as a suit before the Civil Court and as such the statutory provision under Article 137 of the Limitation Act will not govern period of limitation so far as filing of the pre- emption proceeding is concerned on any ground for which period of limitation is not prescribed in section 8 of the West Bengal Land Reforms Act. The Hon'ble Supreme Court further held that under such circumstances Article 97 of the Limitation Act will apply."
(Emphasis Supplied) In Tarulata Mahanta (supra), the Co-ordinate Bench had no occasion to consider the point of limitation and, therefore, such judgment is not pointer to the above issue. In this regard, it would be profitable to refer Paragraph 13 of the said report which reads thus:
" 13. As regards limitation, upon perusal of the materials-on-record of the application I find that the application does not lay down how the Misc. Case for pre-emption is barred by limitation. The learned Trial Judge as well as the First Appellate Court did not discuss anything as to the contention that the Misc. Case is barred by limitation. There is no observation at all in the judgment and order passed by the Courts below. So, it could be presumed that such ground of limitation was not raised before the Courts below. In fact, in this revisional application it is not clearly stated how the application for pre-emption is barred by limitation. Therefore, since, there is no observation in the findings of the Courts below, it is presumed that such ground of limitation was not taken by the pre-emptee before the Lower Courts. Accordingly, I am of the view that this Court is not in a position to arrive at a conclusion whether the application for pre-emption is barred by limitation. In conclusion, this question of limitation favours the pre-emptor."
(Emphasis Supplied) In Adhir Kumar Guchait -vs- Maya Rani Majhi & Anr. reported in 2009 (4) CHN 597, the Co-ordinate Bench held that Article 137 of the Limitation Act can be applied to an application under Section 8 of the West Bengal Land Reforms Act in case of a non-notified co-sharer who were not served with notice under Section 5 (5) of the said Act. The Co- ordinate Bench did not take into consideration the judgment rendered by the Apex Court in case of Gopal Sardar (supra). The aforesaid observation runs counter to the ratio decided by the Supreme Court in the above report and, therefore, cannot be said to be a good law.
In view of the clear pronouncement of the Supreme Court in case of Gopal Sardar (supra), the present pre-emption proceeding initiated admittedly after two years or more from the date of the completion of transaction is barred by limitation. Admittedly in the present case, the registration was complete on March 16, 2000 and an application for pre- emption was filed on April 17, 2002 much beyond the period of limitation prescribed under Article 97 of the Limitation Act.
Even if, it is accepted that the period enshrined under Section 8 of the West Bengal Land Reforms Act cannot be pressed in respect of a non-notified co-sharer, a plea is taken at the bar that the proceeding cannot be held to be non-maintainable having filed beyond the period of limitation provided under Article 97 of the Limitation Act while taking shelter under Section 17 of the Limitation Act. In other words, it is tried to be contended that because of the non-service of the notice in prescribed form under Section 5 of the West Bengal Land Reforms Act, a fraud is committed and the period of limitation should reckon from the date when the fraud was known.
Section 17 of the Limitation Act deals with a fraud and mistake and exclude the period of limitation to run on account of fraud and mistake unless the same is brought to the knowledge of the plaintiff or the applicant. There is a distinction between Sub-Section 1 and Sub- Section 2 of Section 17 of the said Act as in case of Sub-Section 1, the entire period is covered by the situation prior to the date of detection of the fraud or the mistake whereas under Sub-Section 2 of Section 17, the decree-holder has a benefit of another year from the date of discovery of fraud or mistake or all allied situations.
Order VII Rule IV of the Code provides the particulars of fraud to be clearly and expressly pleaded in the plaint or to an application which partakes a character of the original proceeding. My endeavour has failed to find out that any case of fraud is made out in a pre-emption application. The fraud is always viewed seriously by the Court as it unravels all the solemn act. In support of the above, the reliance can be placed upon a judgment of the Supreme Court in case of Ram Chandra Singh -vs- Savitri Devi reported in (2003) 8 SCC 319 wherein it is held:
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together.
16. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
19. In Derry v. Peek it was held:
In an action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person making it liable to an action of deceit.
20. In Kerr on Fraud and Mistake, at p. 23, it is stated:
"The true and only sound principle to be derived from the cases represented by Slim v. Croucher is this: that a representation is fraudulent not only when the person making it knows it to be false, but also when, as Jessel, M.R., pointed out, he ought to have known, or must be taken to have known, that it was false. This is a sound and intelligible principle, and is, moreover, not inconsistent with Derry v. Peek. A false statement which a person ought to have known was false, and which he must therefore be taken to have known was false, cannot be said to be honestly believed in. 'A consideration of the grounds of belief', said Lord Herschell, 'is no doubt an important aid in ascertaining whether the belief was really entertained. A man's mere assertion that he believed the statement he made to be true is not accepted as conclusive proof that he did so.' "
21. In Bigelow on Fraudulent Conveyances, at p. 1, it is stated:
"If on the facts the average man would have intended wrong, that is enough."
It was further opined:
"This conception of fraud (and since it is not the writer's, he may speak of it without diffidence), steadily kept in view, will render the administration of the law less difficult, or rather will make its administration more effective. Further, not to enlarge upon the last matter, it will do away with much of the prevalent confusion in regard to 'moral' fraud, a confusion which, in addition to other things, often causes lawyers to take refuge behind such convenient and indeed useful but often obscure language as 'fraud upon the law'. What is fraud upon the law? Fraud can be committed only against a being capable of rights, and 'fraud upon the law' darkens counsel. What is really aimed at in most cases by this obscure contrast between moral fraud and fraud upon the law, is a contrast between fraud in the individual's intention to commit the wrong and fraud as seen in the obvious tendency of the act in question."
22. Recently this Court by an order dated 3-9-2003 in Ram Preeti Yadav v. U.P. Board of High School & Intermediate Education held:
(SCC pp. 316-317, paras 13-15) "13. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter.
Although negligence is not fraud but it can be evidence on fraud. (See Derry v. Peek.)
14. In Lazarus Estates Ltd. v. Beasley the Court of Appeal stated the law thus: (All ER p. 345 C-D) 'I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever;'
15. In S.P. Chengalvaraya Naidu v. Jagannath this Court stated that fraud avoids all judicial acts, ecclesiastical or temporal."
23. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous.
24. In Arlidge & Parry on Fraud, it is stated at p. 21:
"Indeed, the word sometimes appears to be virtually synonymous with 'deception', as in the offence (now repealed) of obtaining credit by fraud. It is true that in this context 'fraud' included certain kinds of conduct which did not amount to false pretences, since the definition referred to an obtaining of credit 'under false pretences, or by means of any other fraud'. In Jones, for example, a man who ordered a meal without pointing out that he had no money was held to be guilty of obtaining credit by fraud but not of obtaining the meal by false pretences: his conduct, though fraudulent, did not amount to a false pretence. Similarly, it has been suggested that a charge of conspiracy to defraud may be used where a 'false front' has been presented to the public (e.g. a business appears to be reputable and creditworthy when in fact it is neither) but there has been nothing so concrete as a false pretence. However, the concept of deception (as defined in the Theft Act, 1968) is broader than that of a false pretence in that (inter alia) it includes a misrepresentation as to the defendant's intentions; both Jones and the 'false front' could now be treated as cases of obtaining property by deception."
25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.
26. In Shrisht Dhawan v. Shaw Bros. it has been held that: (SCC p. 553, para 20) "20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."
27. In S.P. Chengalvaraya Naidu v. Jagannath this Court in no uncertain terms observed: (SCC p. 5, paras 5-6) "The principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property- grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
* * * A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. ... A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
28. In Indian Bank v. Satyam Fibres (India) (P) Ltd. this Court after referring to Lazarus Estates and other cases observed that since fraud affects the solemnity, regularity and orderliness of the proceedings of the court it also amounts to an abuse of the process of the court, that the courts have inherent power to set aside an order obtained by practising fraud upon the court, and that where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order (SCC p. 563, para
23). It was further held: (SCC pp. 562-63, para 22) "22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business."
29. In Chittaranjan Das v. Durgapore Project Ltd. it has been held: (Cal LJ p. 402, paras 57-58) "57. Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied with in such a situation.
58. It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns on the basis of the certificate produced by the petitioner, the same is not sacrosanct nor the respondent company would be bound thereby."
In absence of a specific case of fraud being made out and the evidence is adduced, the proceeding should not be thrown merely on the basis of a stray averment relating to fraud. The fraud vitiates all solemn acts and does not dwell together with the Justice, such an issue should not be dealt with casually and routinely.
This Court, therefore, have no hesitation to hold that the instant proceeding having admittedly instituted beyond the period of one year as provided under Article 97 of the Limitation Act is barred by law of limitation.
Since I have found the proceeding to be not maintainable on the ground of limitation, this court, therefore, does not proceed to deal with the other point whether the pre-emption proceeding could at all be maintainable in respect of a bastu land or not. The aforesaid point shall not be deemed to have been decided.
In view of the observations made hereinabove, the order of the Appellate Court is hereby set aside; consequently the order of the Trial Court is restored.
The revisional application is thus disposed of.
However, there shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.)