Calcutta High Court (Appellete Side)
Nurul Islam vs Esratun Bibi on 26 July, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Shivakant Prasad
C. O. 2716 of 2015
Nurul Islam
-versus-
Esratun Bibi
with
C. O. 4434 of 2016
with
C. O. 1885 of 2016
with
C. O. 172 of 2007
For the Petitioner : Mr. Jiban Ratan Chatterjee, Sr. Adv.,
in C.O.172/2007 Mr. Biswajit Basu,
Mr. Susenjit Banik,
Mr. Huzefa Palitanawala.
For the Opposite Party: Mr. Kamalesh Bhattacharya
in C.O.172/2007 Mr. Mohinoor Rahaman,
Mr. Abhijit Pal.
For the Petitioner : Mr. Partha Pratim Roy,
in C.O.2716/2015 Mr. Sarbananda Sanyal,
& C.O.4434/2016 Mr. Dyutiman Banerjee,
For the Petitioner : Mr. Chittapriya Ghosh
in C.O.1885/2016 Mr. Samir Kumar Adhikari.
Heard On : 26th July, 2017.
Judgement On : 26th July, 2017.
Jyotirmay Bhattacharya, J.
Having regard to the fact that divergent views have been expressed by different Benches of the same strength of this High Court as regards the period of limitation that would apply to a pre-emption application under Section 8 of the West Bengal Land Reforms Act, 1955 filed by a non-notified co-sharer, the following question was referred to this Bench by the Hon'ble the Acting Chief Justice on the request of a Learned Single Judge of this Court for its answer:-
"When does the period of limitation begin to run and when does such period end for a pre-emption application under Section 8 of the West Bengal Land Reforms Act, 1955 at the instance of a co-sharer on whom notice of transfer as contemplated by Section 5(5) of the said Act has not been served ?"
While referring the said question to a larger Bench for its resolution, the Learned Single Judge of this Court mentioned the following conflicting decisions delivered on the above issue by several Benches of equal strength of this Hon'ble Court, in the order.
In the case of Fuzle Hakani -vs- Sk. Arsed Ali reported in 89 CWN 1081, the then Chief Justice of this Court sitting singly held that where no notice of transfer on a co-sharer was served as contemplated by Section 5(5) of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act), the period of limitation of three months for filing a pre-emption application as prescribed by Section 8 of the said Act was not applicable.
In the case of Sribas Chandra Biswas -vs- Jiban Krishna Biswas reported in (2012) 2 WBLR (Cal) 245, a Learned Judge of this Court took the view that a co-sharer on whom no notice of transfer was served, would get the benefit of Article 137 of the Limitation Act, 1963 and it could maintain a pre-emption application within three years from the date of registration of transfer.
In the case of Mahaprasad Jana -vs- Lalit Mohon Bera reported in (2013) 3 CHN (Cal) 441, a Learned single Judge of this Court held that the limitation period for exercising the right of pre-emption is three years in respect of a non- notified co-sharer. In so holding, the Learned Judge relied on the decisions of this Court in the cases of Ram Kumar Kajaria -vs- M/s. Chandra Engineering (India) Ltd. reported in 76 CWN 426, Dwijapada Haldar -vs- Prafulla Chandra Haldar reported in AIR 1972 Cal 409 and Gangadhar Bhandari -vs- Lalmohon Mukherjee reported in (1978) 1 CLJ 451.
In the case of Ajit Mondal -vs- Tapan Kumar Ghana reported in (2013) 3 WBLR (Cal) 194, a Learned Judge of this Court held that a petition under Section 8 of the 1955 Act should be regarded as a plaint in a suit and as a consequence, Article 137 of the Schedule to the Limitation Act will have no manner of application thereto. The Learned Judge went on to hold that in case of a co- sharer of a transferor raiyat to whom the substantive right under Section 8 of 1955 Act has been extended, the period of limitation would not start to run if no notice has been served and/or despite exercise of due diligence by such co- sharer, the factum of the transfer remained unknown to such co-sharer by reason of any fraud perpetrated on such co-sharer or on account of any mistake. But upon the period of limitation begins to run, the co-sharer of a transferor raiyat in the relevant plot of land will have a period of three months within which the right conferred on him under Section 8 of the 1955 Act has to be exercised.
In the case of Tapan Kumar Ghana -vs- Smt. Sankari Bala Santra reported in (2012) 1 WBLR (Cal) 571, a Learned Single Judge of this Court held that Article 137 (erroneously referred to as Section 137) of the Schedule to the Limitation Act is applicable in case of a co-sharer raiyat who has not been served with a notice of transfer. Accordingly, the period of limitation in such a case of non-notified co-sharer is three years from the date of transfer of the concerned land.
In the case of Sk. Abdul Khelak -vs- Rahul Amen Mallick reported in (2014) 4 CLT 571 (HC), a Learned Single Judge of this Court held that the date of registration of the document of transfer is the date when the document comes to the public domain and a person is deemed to have knowledge of the document from such date. Thus, a non-notified co-sharer is entitled to bring a petition for pre-emption under Section 8 of 1955 Act within a period of three years from the date of registration of the impugned document of sale.
In the case of Prasanna Kumar Nag -vs- Prokash Chandra Poddar reported in 2009 (4) CHN 197, a Learned Single Judge of this Court, relying on the Supreme Court decision in the case of Gopal Sardar -vs- Karuna Sardar (2004) 4 SCC 252, held that the prescribed period of limitation for filing of an application for pre-emption on the ground of co-sharership by non-notified co-sharer will be one year from the date of completion of the sale as Article 97 of the Schedule to the Limitation Act will govern such a case.
Thus, we find that it is rightly recorded by the Learned Single Judge of this Court that no uniform view has been expressed by different Benches of this Hon'ble Court with regard to the starting point of limitation which is applicable to an application for pre-emption under Section 8 of the said Act filed by non- notified co-sharer. In some of the judgements, it was held that Article 137 of the Schedule of the Limitation Act, 1963 will apply. Thus, according to those decisions, the period of limitation for applying pre-emption by non-notified co- sharer will be three years from the date when the right to apply accrues.
The other view expressed by other Learned Judges of this Hon'ble Court was that Article 97 of the Schedule of the Limitation Act will apply when a non- notified co-sharer will apply for pre-emption under Section 8 of the said Act. It was, thus, held that one year will be the period of limitation for filing such application and the period of limitation will begin to run when the purchaser takes under sale sought to be impeached, physical possession of the whole or part of the property sold, or, where 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.
We also find another view expressed by another Learned Single Judge of this Hon'ble Court wherein it was held that Article 113 of the Limitation Act will be the appropriate provision which will govern the period of limitation so far as the application for pre-emption filed by a non-notified co-sharer is concerned. It was thus, held that the period of limitation will begin to run from the date when the right to sue accrues and will end with the expiry of three years thereafter.
In this aforesaid context, let us now try to find out the exact provision relating to limitation which will apply when a non-notified co-sharer will apply for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955.
There are three sections contained in the said Act dealing with the right of pre-emption of different categories of persons. Section 8 of the said Act is relevant for our present purpose. Section 8 of the said Act recognizes the right of pre- emption of the bargadars, a co-sharer of a raiyat in the plot of land and a raiyat possessing land adjoining such plot of land. Different periods of limitation are prescribed for different categories of pre-emptors under Section 8 of the said Act.
So far as the bargadars are concerned, it is provided that the bargadar in a plot of land may, within three months from the date of such transfer, apply for such pre-emption. So far as the co-sharers are concerned, it is provided therein that a co-sharer may, within three months of service of notice given under sub- Section 5 of Section 5 of the said Act may apply for pre-emption. So far as the raiyat possessing land adjoining such plot of land is concerned, it is provided that such a raiyat may, within four months of the date of such transfer, apply for such pre-emption.
There is uniformity in the views with regard to the period of limitation applicable to the application for pre-emption filed by either the bargadar or by the adjoining owner of by the notified co-sharer.
However, the views are not uniform as regard the starting point of limitation i.e when the period of limitation will begin to run so far as the non- notified co-sharer is concerned. Though the said provision is silent about the right of the co-sharer upon whom notice under sub-Section 5 of Section 5 of the said Act has not been served to apply for pre-emption under Section 8 of the Land Reforms Act but it has been consistently held by this Hon'ble Court that even the co-sharer upon whom such notice under Section 5(5) of the said Act has not been served, has the right to exercise his right of pre-emption under Section 8 of the said Act.
On conjoint reading of the Section 8, Section 9 and Section 10 of the said Act, we find that not only the period of limitation is prescribed for different categories of pre-emptors but also the forum where such application is required to be filed, is prescribed under the said Act; even the forum where such appeal will lie and the period within which such appeal is required to be filed before such appellate forum have also been prescribed in the said Act. How the proceedings before the original forum as well as before the appellate forum will be regulated have also been prescribed under the said Act. The effect of passing an order of pre-emption is also prescribed in section 10 of the Act. The mode of execution of the order of the pre-emption has also been prescribed in Section 57 of the said Act.
Thus, we are of the view that this is a self-contained Code prescribing the right of pre-emption to be exercised by different categories of persons whose right to pre-empt has been recognised under the said Act. Even Section 3 of the said Act provides for an overriding effect over the other laws. Section 3 of the said Act runs as follows:-
"Section 3. Act to override other laws--The provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or in any custom or usage or contract, express or implied, or agreement or decree or order or decision or award of a court, tribunal or other authority."
Thus, the said section indicates that the provisions contained in any other law including the Limitation Act will not apply, in case any provision contained in any other laws is inconsistent with the said Act of 1955.
That apart, the Limitation Act itself provides that the provisions contained in the said Act relating to the suits, applications and appeals will not apply, if any special provision is made in any special statute prescribing limitation for filing any suit, application and appeal under the Special Act.
Section 29(2) of the Limitation Act provides as follows:-
"Where any special or local law prescribed for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law."
On conjoint reading of these two provisions of those Act, it appears to us that in cases where a limitation is specifically provided for exercising the right of pre-emption by those categories of person whose right of pre-emption is recognized under the said Act of 1955, the provision relating to limitation as prescribed in the said Act of 1955 will prevail over the provision contained in the Limitation Act.
However, we find that no period of limitation is prescribed so far as the non-notified co-sharers are concerned. In the absence of any specific provision relating to limitation for such non-notified co-sharers, the provisions of the Limitation Act will apply.
Prior to 1994, the consistent view of this Court was that since the pre- emption proceeding is initiated on the presentation of an application before the Learned Munsif having territorial jurisdiction, Article 137 of the Limitation Act will be the appropriate provision which will govern the period of limitation so far as the non-notified co-sharers are concerned as no limitation is prescribed for them to exercise the right of pre-emption under the Act.
As such, prior to 1994 it was the consistent view of this Court that the period of limitation will be three years for the non-notified co-sharers and such period will begin to run from the date when the right to apply accrues. It was thus, held that the right to apply will accrue on the date when the transfer comes to the knowledge of the non-notified co-sharer exercising the right of pre-emption under the said Act. It was also the consistent view of this Court prior to 1994 that since the pre-emption proceeding is initiated on the basis of an application filed by the pre-emptors, the time for filing such application may be enlarged by applying the provision of Section 5 of the Limitation Act.
There has been a revolutionary change in this consistent view of this Court with the passing of the judgment by the Learned Single Judge of this Court in the case of Minor Subir Ranjan Mondal vs. Sitanath Mukherjee, reported in 1994(1) CLJ, 106. It was held therein that though the pre-emption proceeding is initiated on the basis of an application, but considering the nature of the proceeding where rights of the parties are finally decided, the Court held that the application under Section 8 of the said Act, is in the nature of a plaint filed in a suit and therefore would not come under the ambit of Section 5 of the Limitation Act as Section 5 of the Limitation Act omits in application to a suit. It was thus held that Section 5 of the Limitation Act cannot be applied to a proceeding under Section 8 of the said Act. It was further held therein that since the pre-emption proceeding is initiated by an application which will be regarded as a plaint, the principle laid down under Article 137 of the Limitation Act cannot be applied as the provision contained in Article 137 of the Limitation Act which is a residuary provision is applicable to any other application for which no period of limitation is provided elsewhere in the Third Division of the said Schedule.
The view as expressed by the Learned Single Judge of this Court in the case of Minor Subir Ranjan Mondal vs. Sitanath Mukherjee (supra) was approved by the Division Bench of this Hon'ble Court in the case of Serish Maji vs. Nishit Kumar Dolui, reported in 1999(1) CHN 365. While approving the view of the Hon'ble Single Judge of this Court, the Division Bench held that for the purpose of the Limitation Act a suit may be defined as an independent proceeding which must be initiated for final determination of issue or issues of fact or law between the parties. Thus, the Division Bench was of the view that though the pre- emption proceeding is initiated by presentation of an application but in effect such proceeding may be regarded as a suit which is initiated for final determination of an issue or issues of fact or law between the parties in such proceeding. Thus, the view of the Learned Single Judge of this Court in Minor Subir Ranjan Mondal vs. Sitanath Mukherjee that Section 5 does not apply to a proceeding under Section 8 of the West Bengal Land Reforms Act was held to be correct and the contrary view held by the other Learned Single Judge of this Court in Chandra Sekhar vs. Baidyanath Ghosh was not approved by the Division Bench of this Court.
A question as to whether a pre-emption proceeding initiated on the basis of an application is in the nature of a suit or not was also considered by the Hon'ble Supreme Court in the case of Gopal Sardar vs. Karuna Sardar, reported in (2004)4 SCC 252. The Hon'ble Supreme Court after considering various provisions of the West Bengal Land Reforms Act, 1955 held that the said Act is a self-contained code in relation to the enforcement of rights of pre-emption. The Hon'ble Supreme Court, after considering the provisions of the 1995 Act held that when one applies for enforcement of rights of pre-emption under Section 8 of the said Act, the proceeding so initiated are in the nature of a suit and the application on which such proceeding is initiated should be regarded as plaint . Thus the view, expressed by the Division Bench of this Court in Serish Maji's case that pre-emption proceeding initiated by an application under Section 8 of the said Act is to be construed as a suit was approved by the Hon'ble Supreme Court in the aforesaid case. It was thus held that neither Section 5 of the Limitation Act is applicable for extension of time for filing the application for pre- emption under Section 8 of the said Act of 1955 nor Article 137 of the Limitation Act will govern the application for pre-emption to be made under the said Act.
However, it is rightly pointed out by the Learned Single Judge of this Court while recommending for a reference on the above point that the application of Article 97 of the Schedule of the Limitation Act to an application for pre-emption filed by a non-notified co-sharer was not involved as an issue before the Hon'ble Supreme Court in the case of Gopal Sardar vs. Karuna Sardar and the applicability of Article 97 of the Limitation act to such proceeding was also not decided by the Hon'ble Supreme Court but we find that it was decided in no uncertain terms that the application for pre-emption will be regarded as a plaint and the said proceeding will be regarded as a suit.
Keeping in mind that the pre-emption proceeding is a suit, let us now ascertain as to which provision of the Limitation act relating to suits will apply to the pre-emption proceeding to be initiated by the non-notified co-sharer.
We have already mentioned above that in view of the provision contained in Section 29(2) of the Limitation Act, the provision of the Limitation Act will not apply to the application for pre-emption filed by the bargadar, notified co-sharer and the contiguous owner as the special statue i.e. the West Bengal Land Reforms Act of 1955 provides special provision relating to limitation for filing application for pre-emption for those group of pre-emptors. However, since no provision relating to limitation has been prescribed for the non-notified co- sharers in the said Act of 1955, we have no hesitation to hold that the provisions of the Limitation Act applicable to suits, will apply to the application for pre- emption filed by the non-notified co-sharers.
Period of limitation relating to filing of suits of different nature is prescribed in the first Division of the Schedule to the Limitation Act, 1963. The Second Division of the Schedule under the Limitation Act, 1963 prescribes different period of limitation and/or the starting point thereof relating to appeals of various descriptions. The third Division prescribed under the said Schedule to the Limitation Act, 1963 provides for different period of limitation and/or the starting point thereof relating to applications of various nature relating to various proceeding.
Article 137 of the Limitation Act is a residuary provision which comes under the third Division specified in the Schedule to the Limitation Act of 1963. Since it was held by this Hon'ble Court as well as by the Hon'ble Supreme Court that pre-emption proceeding, though it is initiated on the basis of an application but should be regarded as a suit and the application by which such proceeding is initiated should be regarded as a plaint, we have no hesitation to hold that the residuary provision contained in Article 137 of the Limitation Act has no manner of application to the pre-emption application filed by the non-notified co-sharer.
Let us now try to find out as to the appropriate provision of the Limitation Act which will govern the period of limitation and/of the starting point of the limitation so far as pre-emption application filed by the non-notified co-sharer is concerned.
Article 97 of the Limitation Act contained in Part IX dealing with suits relating to miscellaneous matters comes under the first Division of the Schedule to the Limitation Act, 1963. Article 97 of the Limitation Act runs as follows:
Article 97:
Description of suit Period of Time from which
limitation period begins to run
Enforce a right of pre- One year When the purchaser
emption whether the takes under the sale
right is founded on law sought to be
or general usage or on impeached, physical
special contract possession of the
whole or part of the
property sold, or,
where 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.
The non-notified co-sharer's right to enforce pre-emption is founded on law i.e West Bengal Land Reforms Act, 1955. Since the pre-emption proceeding is regarded as a suit, in our view Article 97 is the appropriate provision which will govern the period of limitation and the starting point thereof so far as the application for pre-emption filed by the non-notified co-sharers are concerned. As such, the period of limitation for filing an application for pre-emption by the non- notified co-sharers will be one year and the starting point of limitation will be different depending upon circumstances as prescribed in the third column of the said schedule. As per the third column of the said schedule the time will begin to run from the date when the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold. Again when the property is of such nature where the subject matter of sale does not admit of physical possession of the whole or part of the property then from the date when the instrument of sale is registered meaning thereby when the registration is complete as per Section 61 of the Registration Act.
Before parting with we like to mention here that we cannot subscribe the view that the period of limitation for filing an application by the non-notified co- sharer will be governed by Article 113 of the Limitation Act. Article 113 of the Limitation Act is included in Part X dealing with limitation for the suits for which there is no prescribed period. It provides that three years will be the limitation for any suit for which no period of limitation is provided elsewhere in the Schedule and the starting point of limitation will be the date when the right to sue accrues. Since there is a specific provision that is Article 97 prescribing period of limitation for the suit for pre-emption in the first Division of the Schedule to the Limitation Act, the residuary provision prescribing limitation for the suit for which no period of limitation is provided elsewhere in the Schedule as mentioned in Article 113 of the Limitation Act will have no application for the pre-emption proceeding filed by the non-notified co-sharer.
To elaborate, we like to mention here that Article 113 of the Limitation Act is a residuary provision which provides that in case no limitation is provided elsewhere in the schedule for any suit then the said residuary clause will be operative. The said Article does not mention that when no period of limitation is provided elsewhere, i.e neither in the Limitation Act nor any Special Statute, the said residuary clause will become operative. The use of the expression "elsewhere in the schedule" in Article 113 of the Limitation Act (emphasis is given on the sand expression in bold letters) is very significant. Application of Article 113 of the Limitation Act is restricted only to cases where the Limitation Act is silent only and it does not refer to the silence of any statute in this regard. As such, in our view, in the absence of any provision relating to limitation in any special statute, the residuary Article 113 of the Limitation Act cannot be applied, particularly when provision relating to limitation for the suit is mentioned in the first schedule of the Limitation Act.
We thus conclude by holding that Article 97 of the Limitation Act, 1963 is the appropriate provision which will govern the period of limitation for filing application for pre-emption by the non-notified co-sharer. We also hold that as per the provision contained in Article 97 of the Limitation Act, the period of limitation will begin to run from the date when the purchaser takes under the sale sought to be impeached physical possession of the whole or part of the property sold. We also hold that where the property sold is of such nature which does not admit of physical possession either of the whole or part thereof the period of limitation will begin to run when the instrument of sale is registered meaning thereby when the registration is complete as per Section 61 of the Registration Act and in both cases the period of limitation is one year.
We thus answer the questions which were referred to us by the Learned Single Judge of this Court as indicated above.
The reference is thus disposed of.
Let the revisional applications be placed before the appropriate Bench for disposal of the revisional applications on merit in the light of the observations made hereinabove.
(Jyotirmay Bhattacharya, J.) (Shivakant Prasad, J.) dp/s.mayra.