Calcutta High Court (Appellete Side)
Amal Kumar Ballav & Anr vs Juran Krishna Mazumdar on 19 August, 2016
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Mir Dara Sheko
C.O. No. 1181 of 1993
Amal Kumar Ballav & Anr.
Vs.
Juran Krishna Mazumdar
For the Petitioners : Bidyut Kumar Banerjee, Senior Advocate,
Ms. Shila Sarkar,
Ms. Priyanka Mondal.
For the Opposite Party : Mr. Ashish Kumar Sanyal, Senior Advocate,
Mr. Sanjib Bandyopadhyay.
Heard On : 8.1.2016, 14.1.2016, 14.7.2016, 15.7.2016
Judgment on : 19.08.2016
Mir Dara Sheko, J. : 1. Aggrieved by the judgment dated January 30, 1993
delivered in Miscellaneous Appeal No. 144 of 1991 by Ld. Additional
District Judge, 2nd Court North 24-Parganas, Barasat affirming the order
of pre-emption passed by Learned the then Munsif, 3rd Court Basirhat in
Miscellaneous case No. 7 of 1984, the pre-emptee-opposite
party/appellant/petitioner, to be called on hereafter as the petitioner,
preferred this revisional application on the grounds mentioned in the
application under Article 227 of the Constitution of India.
2. Admittedly the case property of Khatian 326 of mouza Chandipur under
Police Station Baduria appertained to plot numbers 77, 78 & 81 having an
area of 7.82 acre originally belonged to Afsar Mandal, who sold the same to
Sahabuddin and Aftabuddin on 2nd February, 1961, who thereafter
transferred the said property to one Abul Fazal Tarafdar. Said Abul Fazal
Tarafdar then transferred some portions of the case plots to Nazir
Ahammed on 1st of December, 1978 and rest to Azizur Rahaman and
Fajlur Rahaman on January 17, 1979. The pre-emptor-
petitioner/respondent/opposite party, to be called on hereafter as the
opposite party, purchased the portion of the case plot from said Nazir Ahmmed by a registered deed dated 2nd May, 1980 and thus became co- sharer to the case plots.
3. Cause of action of the pre-emption case allegedly arose when the pre- emptee-opposite party/ appellant /petitioner purchased the case property to the extent of 2 decimals out of 11 decimals on southern side described in schedule Ka and 1 cent out of 5 cent of plot 77 and 3⅔ cent out of 20 cents of plot 81 described in schedule Kha from said Azizur Rahaman and Fajlur Rahaman by a registered deed dated February 6, 1981 without notice and beyond knowledge of the opposite party.
4. The opposite party came to learn about such purchase by the petitioner while there was approach for demarcation on 9th/ 10th December, 1983. The opposite party accordingly obtaining certified copy of such deed of transfer and by depositing the consideration money along with statutory compensation filed the pre-emption case under Section 8 of the West Bengal Land Reforms Act on the ground of co-sharer & vicinage.
5. The petitioner opposed against such prayer of pre-emption stating that it is barred by the principle of waiver and acquiescence since to the knowledge and at the instance of the opposite party the petitioner purchased the case property on 6.2.1981, and as the pre-emption case is filed in the year 1984, it is barred by limitation and is not maintainable.
6. Ld. Senior Advocate Mr. Bidyut Banerjee at the very outset submitted to send the case back to the Lower Appellate Court since the Appellate Court affirmed the order of the learned Trial Judge allowing the pre- emption under Section 8 of the W.B.L.R. Act, 1955, in consideration of the provisions under the West Bengal Land Holding Revenue Act, 1979 which according to Mr. Banerjee was altogether a different provision, and more so when, the said Act, being repealed, was no more in existence.
7. Mr. Banerjee further argued that since the issue of applicability of pre- emption case in the event of transfer of the entire share, or, a portion or share of a plot is pending before the larger Bench of this Court, the court may consider as to whether we should wait till disposal of the issue by the larger Bench.
8. In effect Mr. Banerjee submitted either to allow the revisional application setting aside the judgment of the 1st appellate Court and to send back on remand to the appellate Court within for its disposal only under West Bengal Land Reforms Act, or, to wait till decision by Larger Bench on the pending issue to avoid any conflict in interpretation of the law with regard to the pre-emption case.
9. Mr. Sannyal Ld. Senior Advocate for the opposite party replied that the pre-emption is liable to be disposed of determining the right whether it is available either on the ground of co-sharer or vicinage under Section 8 of the West Bengal Land Reforms Act, 1955. Submitted that the West Bengal Land Holding Revenue Act, 1979, which was wrongly referred to in the judgment by the 1st Appellate Court, has no manner of application in the case. Supporting the impugned judgment as it ultimately affirmed the order of the learned Trial Court allowing pre-emption both as co-sharer and contiguous land owner Mr. Sannyal submitted that Article 137 of the Limitation Act will apply to compute limitation period to file a pre-emption case under Section 8 of the Act and the present application to pre-empt the case property was filed well within time after date of knowledge. Therefore revisional application should be dismissed affirming the orders of pre-emption under Section 8 of the West Bengal W.B.L.R. Act. Lastly submitted that the case is to be determined on the basis of the law as it is stands on the day, and if larger Bench on any issue interprets the law of pre-emption in any other direction, the aggrieved party would be at liberty to seek review on the basis of larger Bench decision but, due to pendency of any issue on pre-emption case before any larger Bench this old and long pending case should not be deferred, rather should be decided on the basis of law as on this day.
10. In view of submissions made before this Court, the revisional application requires decision, on the existing law on the following points:-
(i) Is the case liable to be sent back to learned Appellate Court for fresh decision since it has been decided taking note of the provisions of a repealed Act namely the West Bengal Land Holding Revenue Act, 1979?
(ii) Whether Article 137 of the Limitation Act would apply for a non-notified co-sharer or adjoining landowner for submitting application for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955?
(iii) Whether the judgment dated 30th January 1993 delivered in Misc. Appeal No. 144 of 1991 affirming the order of pre-emption allowed by learned Trial Court in Misc. Case No. 7 of 1984 granting pre-emption suffers from any illegality requiring interference in revision?
11. The basic facts as contented above as regard the chain of transfers in respect of the case plot are admitted position. Admittedly Azizur Rahaman and Fazlur Rahaman purchased from Nazir Ahamed some portion of the case plots by a registered deed on 1st December 1978, and from them the petitioner on February 6, 1981 purchased southern 2 decimals out of 11 decimals of plot No. 78, 1 decimal out of 5 decimals of plot No. 77 and 3⅔ decimals out of 20 decimals described respectively in schedule Ka and Kha of the application under Section 8 of the Act.
12. Whereas, the opposite party prior to aforesaid purchase, by a registered deed dated 2nd May, 1980 purchased portion of the case plots from aforesaid Nazir Ahmmed and thus became co-sharer of the raiyat in the plots of land namely Azizur Rahaman and Fazlur Rahaman.
13. The appellate court during deciding point No. 4, observed, "But it is not denied that no notice of the transfer was served either on the case land or on the petitioner co-sharers. Though the impugned transfer took place on 6.2.1981." From ground no(v) of the revisional application it appears as an admitted situation that any notice under Section 5(5) of the Act was not served since it has been taken as one of the grounds of revision that the opposite party, being contiguous landowner, was not entitled to get any such notice.
14. Therefore, I find that admitting the opposite party as a contiguous landowner to case plot in ground nos. (v) and (vi) of revisional application the petitioner challenged the impugned order as time barred since the pre- emption case was filed in the beginning of 1984 to pre-empt the property covered by the registered deed of 6th February, 1981.
15. Apart from the provisions laid down in Section 29 of the W.B. Land Reforms Act, 1955 as has been repealed by Section 30, the same has been virtually re-enacted by making historic amendments repealing also Non- Agricultural Tenancy Act by giving retrospective effect from August 7, 1969, except of the amendment of Chapter IV, effect of which was given from April 14, 1981. However, the law is set at rest by several pronouncements that if the application for pre-emption under Section 8 of the Act is presented beyond the period stipulated therein, for condonation of such delay, if any, aid of Section 5 of Limitation Act, 1963 will not be available, meaning thereby, any such application for pre-emption if is presented beyond prescribed period shall be time barred to get order of dismissal yielding no relief since Section 5 of the Limitation Act shall have no role to play for condonation of delay. One of such pronouncements is the judgment in the case of Ranjit Kumar Dey Vs. Dipti Rani Guchait reported in (2000) 1 Calcutta High Court Notes (FB) 712: (2000) 2 Calcutta Law Journal 1 (FB). Because a proceeding under Section 8 of the Act virtually, is a suit and not a mere application within the meaning of Limitation Act, and such application like a suit determines a statutory right, whether to be granted or refused forever. This point also has been again legibly answered by this Court on subsequent query in the case of Ajit Mandal and Ors. Vs. Tapan Kumar Ghana in C.O. No. 2973 of 2012, since such settled point appeared to have been disturbed thereinbefore by incorrect application of law on the point.
16. Learned appellate Judge in concluding point No. 4 held, "the period of limitation for pre-emption would begin to run from the date of registration of the deed (AIR 1969 SC 244) and for a non-notified co-sharer the period of limitation would be three years under Article 137 of the Limitation Act." Mr. Sannyal also supported the view that Article 137 of the Limitation Act would apply whereas Mr. Banerjee opposed by submitting applicability of only Article 97 and not 137 of Limitation Act, and submitted that any plea of date of knowledge would not be considered since the period of one year would be computed strictly from the date of transfer in case of non-service of notice under Section 5(5) of the W.B.L.R. Act.
17. The case of Hiralal Agarwal Vs. Rampadarath Singh reported in AIR 1969 SC 244 (supra) relied on by Mr. Sannyal as also referred to by learned Appellate Court in the impugned judgment did not deal with applicability of Article 137 of Limitation or otherwise. It has pronounced the law on commencement of limitation from the date of completion of registration of impugned registered deed under Section 61 of the Indian Registration Act.
18. When it has been established to accept for all time to come that the proceeding under Section 8 of the Act is a suit and not a mere application, and it is determining the statutory right under the special statute of the West Bengal Land Reforms Act, 1955 on either side permanently, I find no scope to apply Article 137 of the Limitation Act, which reads as follows:-
Article 137, "Any other application for Three years When the right to apply which no period of accrues."
limitation is provided elsewhere in this division.
So Article 137 applies for any other application for which no period of limitation is provided elsewhere in the Act.
Let me now set out Article 97 of the Limitation Act.
Article 97, To enforce a right of pre- One year. When the purchaser takes emption whether the right is under the sale sought to be founded on law or general impeached, physical usage or on special contract possession of the whole or part of the property sold, or, where the subject-matter of sale does not admit of physical possession of the whole or part of the property, when the instrument of sale is registered.
19. Thus I find that Article 97 is identical for its appliance to enforce a right of pre-emption ".....when the instrument of sale is registered", whereas applicability of Article 137 arises in case "any other application" for which period of limitation is not provided "elsewhere in this division". Therefore, in any case of non-service of notice under Section 5 (5) of the W.B. L.R. Act, 1955, period of limitation to apply for pre-emption under Section 8, in either of the status, shall be one year under Article 97, and, not three years as laid down under Article 137 of the Limitation Act.
20. Following the case of Prasanna Kumar Nag Vs. Prokash Chandra Poddar reported in (2009) 4 Calcutta High Court Notes 197 this Court in the case of Ajit Mandal and Tapan Kumar Ghana (supra) on April 11, 2013 held, "without needlessly labouring over the period of limitation indicated in Prasanna Kumar Nag, the legal principle that can be generated therefrom is that a petition under Section 8 of the said Act of 1955 should, for all practical purposes, be regarded as a point in a suit; as a consequence whereof Article 137 of the schedule to the Limitation Act will have no manner of application thereto," and the same is followed accordingly by this Bench.
21. In ground nos. 2 & 3 of the revisional application it is urged that in view of change in the definition of "holding" the opposite party ceased to be a co-sharer and thereby is not entitled to get pre-emption on that ground and also assailed of the impugned order of pre-emption on the ground of vicinage since the pre-emption was not sought for on that ground.
22. Let me first appreciate the law laid down under Section 8 of the Act to adjudicate propriety of the Judgment under challenge which has ultimately affirmed the order of the Trial Judge allowing the pre-emption under Section 8 of the Act in favour of the opposite party holding him both as a co-sharer as well as adjoining land owner.
23. Let me read and interpret the relevant words from within Section 8 of the Act to determine the right of pre-emption which is applicable to whom and when. The words, "a portion or share" of a plot i.e. the word "or" in the middle, of "a portion" and "share" as it stands, has been put to signify only "or" and not 'and' in any sense. Now if it is read to interpret the intention of legislature by keeping "or" between "a portion" and "share"
then it may be read like this viz., a portion of a plot of land means, even may be in fraction out of share what belongs to a raiyat in the plot of land, or, "share of a plot of land" means the entire share in the plot of land, whatever would be transferred to a stranger, is subject to pre-emption.
24. The right of pre-emption is known as a weak right. But equally this is the only way to adopt by a non-notified co-sharer or adjoining land owner to prevent an undesirable stranger purchaser from entering into the arena of co-sharership in the plot of land or of a raiyat possessing land adjoining such plot of land. Therefore it would be a wrong proposition of law that any person, otherwise entitled to pre-empt under Section 8 of the Act, would be rejected or refused on the fallacy that the entire share of the plot was transferred, as already settled by this Court of co-ordinate Bench in the case of Ajit Mandal and Ors. Vs. Tapan Kumar Ghana and Ors. (supra) and also in C.O. No. 345 of 2015 with CAN 2170 of 2015 Sk. Sajhan Ali & Ors. Vs. Sk. Saber Ali & Anr.
25. In the case in hand, I do not find any proof of partition in respect of the case plot with its co-sharers following either of the provisions laid down in Section 14 of the West Bengal Land Reforms Act, 1955. After enforcement of the new provisions of the West Bengal Land Reforms Act, 1955 the definition of a 'raiyat' means a person or an institution holding land for any purpose whatsoever. Thus in common parlance holder of the land is a raiyat within the meaning of the Act. After introduction of the new provisions under Section 8 of the Act since a right of pre-emption has been indicated in favour of 'any co-sharer of a raiyat in the plot of land' or "any raiyat possessing adjoining such plot of land" by enforcing such provision w.e.f. August 7, 1969. Section 2 (6) of the Act is set out hereunder:-
"co-sharer of a raiyat in a plot of land" means a person, other than the raiyat, who has an undemarcated interest in the plot of land along with the raiyat;"
Therefore Abul Fazal Tarafdar having transferred the portion of the case property to Azizur Rahaman and Fajlur Rahaman on December 1, 1978 from whom the petitioner purchased on February 6, 1981 and since, prior to that purchase of the petitioner, aforesaid Abul Fazal Tarafdar having transferred the portion of the case property to Nazir Ahamed from whom the opposite party purchased on May 2, 1980 there cannot be any legal hindrance to prevent the opposite party from becoming already a co- sharer to Azizur Rahaman and Fajlur Rahaman, and thereby the petitioner, having purchased the portion of the plots of land of a raiyat subsequent to purchase by the opposite party, became stranger purchaser.
26. Further there being no evidence of partition under Section 14 of the Act amongst the co-sharer raiyats in respect of the case plots on getting their respective portions demarcated for separate possession, the opposite party thereby is co-sharer to the extent of his undemarcated portion or share to the case plots. But the opposite party cannot claim pre-emption as adjoining land owner to the case plots. So I find that the finding of learned appellate Court in granting pre-emption on the ground of vicinage being erroneous is liable to be set aside.
27. Learned Appellate Court to interpret the meaning of transfer as to when it completes, relied upon the case of Hiralal Agarwal Vs. Rampadarath Singh (supra). From its paragraph 6 it appears "no such transfer would be complete without the deed of transfer registered", the Supreme Court delivered the decision long back on 15.7.1968 and analysing several pronouncements and accepting the majority decision the law has been set at rest that the sale would be completed only when the registration of the sale-deed would be finally contemplated under Section 61 of the Registration Act, 1908 and such completion of registration means when the instrument would be entered in the volume of the Registry Office and certificate is endorsed thereby on such deed of transfer. The limitation thus will run from such date of completion of registration to pursue the right of pre-emption as a co-sharer, being not notified under Section 5(5) of the Act.
28. Thus after accrual of the right of pre-emption in either of the status laid down under Section 8 of the Act the right may be pursued within the stipulated period mentioned in Article 97 of the Limitation Act. But right of pre-emption accrues on the date when the registration of the impugned transfer is completed. Otherwise, exercise of such right or pre-emption before completion of registration will be a premature one and in that case the Court cannot take any cognizance to stretch relief under Section 8 of the Act.
29. In the case in hand, from the judgment of the learned Appellate Court it appears that the impugned sale-deed (Ext. 4) was executed on February 6, 1981 and the application for pre-emption was filed by the opposite party on 2nd February, 1984 by enclosing certified copy dated December 14, 1983 of the impugned deed.
30. At the end of point No. 4 learned Appellate Court held as follows:-
"It appears from the certified copy dated 14.12.83 of the deed that the original deed was yet to be transcribed in the register of Book No. 1. Thus on the one hand, there was no notice and on the other the registration was not complete till 14.12.83."
It is pertinent to note that even after completion of arguments in this case, the opposite party/pre-emptor was given opportunity to produce the impugned document of transfer to show the date of completion of its registration, but in vain. Therefore, though the learned Appellate Court held that registration of the impugned document of transfer was not complete even till the date of obtaining certified copy of said deed, learned Court below under wrong perception traversed to find out the period of limitation and wrongly found that Article 137 of the Limitation Act would apply, though Article 137 is not applicable, as already indicated above as a settled law.
31. Be that as it may, apart from finding of the learned Appellate Court that registration was not complete till the date of obtaining certified copy of the impugned document of transfer, and, even despite of opportunity given by this Court in this revisional proceeding since the document of transfer in question could not be produced showing completion of registration and to allow the Court to take note of filing of the pre-emption application within the time limit prescribed under Article 97 of the Limitation Act, the application for pre-emption is held to be premature. In effect, for having no proof of completion of registration of the impugned document of transfer to invoke the right of pre-emption within the time limit prescribed under Article 97 of the Limitation Act, the entire pre- emption proceeding suffers from want of cause of action and therefore is liable to be dismissed.
32. In view of above, no occasion or question of sending the case back on remand would arise since the point Nos. 1 and 2 have been sufficiently dealt with to answer. Point No. 3 also is answered against the opposite party holding the pre-emption case as premature. Therefore, setting aside the judgment dated January 30, 1993 passed by the learned Additional District Judge, 2nd Court Barasat North 24-Parganas delivered in Misc. Appeal No. 144 of 1991 affirming the order of pre-emption passed by the then learned Munsif Basirhat in Misc. Case No. 7 of 1984 the revisional application is allowed.
33. Let a copy of this judgment be communicated to the Court of learned Additional District Judge, 2nd Court Barasat and to the learned Civil Judge (Junior Division) 3rd Court Basirhat for information.
34. In the situation learned Trial Court is at liberty to refund the amount, with interest if any accrued thereon, to the pre-emptor i.e. opposite party of this revisional proceeding on proper receipt and identification, if applied for, which was deposited by him at the time of presentation of the pre- emption case.
Urgent certified copy be supplied, if applied for.
No order as to costs.
(MIR DARA SHEKO, J.)