Calcutta High Court (Appellete Side)
Tusar Kanti Basu Chowdhury And Another vs Nil Kamal Basu Chowdhury on 8 June, 2018
Author: Asha Arora
Bench: Asha Arora
Form no. J(1)
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Asha Arora
C.O 142 of 2004
Tusar Kanti Basu Chowdhury and another
Versus
Nil Kamal Basu Chowdhury
For the Petitioner : Mr. Ashis Chandra Bagchi, senior advocate
Mr. Rabindranath Mahato, advocate
Mr. Aritra Shankar Ray, advocate
For the Opposite Party : None
Heard on : 18/12/2017 and 16/5/2018
Judgment on : 8th June, 2018.
Asha Arora, J.:
By the instant revisional application the petitioners have assailed the order dated December 11, 2003 passed by the learned Additional District Judge 3rd Court Midnapore in Misc. Appeal No. 76 of 2001 thereby reversing the order dated April 21, 2001 passed by the learned Civil Judge (Junior Division) 2nd Court Contai granting a decree of pre- emption in favour of the petitioners in Judicial Misc. Case No. 8 of 1995 arising out of an application under section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the W.B.L.R. Act).
The petitioners herein filed the aforesaid judicial misc. case under section 8 of the WBLR Act seeking pre-emption in respect of 3 decimals of land which was transferred in favour of the opposite party herein by a registered deed of sale dated May 26, 1993. It is the contention of the petitioners that by virtue of a decree passed in a partition suit being Title Suit No. 290 of 1961, the predecessor-in-interest of the parties Aswini Basu Chowdhury since deceased, got 25½ decimals of land in plot no. 989 being erstwhile plot no. 1138 of mouza Aklabad within P.S Egra. Out of the said 25½ decimals of land, 16 decimals was transferred to the petitioners by a registered deed of sale dated January 11, 1993 while 3 decimals of land was transferred in favour of the opposite party by a registered deed of sale dated May 26, 1993. The remaining 6½ decimals of land in the said plot was gifted to the widow and daughter of Aswini by a deed of gift. Petitioners sought for pre-emption of the aforesaid land being 3 decimals on the ground of adjoining ownership. The application for pre-emption was contested by the opposite party by filing written objection contending therein that the transfer of the case land was effected in his favour at the intervention of the petitioner No. 1 who was an attesting witness to the transaction. The petitioner having waived his right over the land in question is not entitled to pre-emption in respect thereof.
Upon consideration of the evidence on record the trial Court allowed the application for pre-emption.
Aggrieved, the opposite party preferred an appeal being Misc. appeal No. 76 of 2001 and by the order assailed herein, the learned Additional District Judge set aside the order of pre-emption. The relevant portion of the impugned order reads as follows:
"Whether the pre-emptor has waived the right of pre-emption or not is a matter which can be gone into in a proceeding for pre- emption u/s 8 of the W.B.L.R. Act. Such a plea can be raised by the pre-emptee in pre-emption proceeding and the court on being satisfied that the pre-emptor has waived his right may refuse to allow the pre-emption. In this connection we can remind the case (Jagatbandhu Vs. Nilima) A.I.R. 1971 S.C. page-1158.
In the original pre-emption case it is quite evident from the lower court record that the pre-emptor Tusar Kanti Basu Chowdhury purchased 16 decimals of land in the northern portion and one Sankar Basu Chowdhury purchased south eastern portion and the pre-emptee/appellant purchased south western portion of disputed plot no. 1138. The appellant took the plea that the respondent was the attesting witness of the said deed by which he purchased the land in transfer. Inspite of that the respondent brought that pre- emption petition. Ld. Civil Judge (Jr. Divn.) did not consider the said episode in details.
After considering the submission of the ld. lawyers for both sides and in view of considering the legal provisions, in my considered opinion the instant appeal warrants interference by this Appellate Court. The impugned order passed by the court below on 21.4.01 is liable to be set aside in the light of the observation made above."
Mr. Bagchi, learned senior counsel appearing for the petitioners canvassed that to constitute a waiver there must be a conscious relinquishment of one's right. He further contended that in the instant case there is no evidence on the point of waiver so the learned Judge erred in holding that the pre-emptor had waived his right of pre-emption. Placing reliance upon the case of Messrs Cekop versus Asian Refractories Ltd. Reported in 73 CWN 192, learned counsel for the petitioner argued that to waive a right there must be not only knowledge of that right but a clear intention to waive such a right. Mr. Bagchi sought to impress that merely because the pre-emptor signed on the deed as an attesting witness does not prove that he had relinquished his right of pre-emption in respect of the land in question.
It appears from the impugned order as well as from the order passed by the trial Court that the specific case of the opposite party is that the petitioner no. 1 acted as the mediator of the sale transaction in respect of the land sought to be pre-empted and he was the attesting witness of the sale transaction. There is nothing in the revisional application or in the impugned order to indicate that the petitioner no. 1 denied the fact that he was the attesting witness to the sale transaction relating to the land sought to be pre-empted.
On the point of waiver the learned Judge relied upon the case of Jagad Bandhu Chatterjee Versus Smt. Nilima Rani & others reported in 1969(3) Supreme Court Cases 445. In Jagad Bandhu's case (Supra) the appellant purchased certain portion of land from respondents 2 and 3. The vendors sold a portion of it to respondent 1. The appellant filed an application under section 26-F of the Bengal Tenancy Act claiming right of pre-emption over the land purchased by respondent 1 who contested it on the ground that the appellant was not a co-sharer in the land purchased by her and the appellant had waived his right of pre-emption. The trial Court allowed the application but the First Appellate Court and the High Court concurrently found that the appellant's claim for pre-emption was barred owing to waiver on his part. In the appeal before the Supreme Court, the appellant contended that waiver could be brought about only by a contract and since no consideration had passed there had been no waiver. In the relevant paragraph 5 of the Judgment in the aforesaid Jagad Bandhu's Case (Supra) the Supreme Court held as follows:
"5. In India the general principle with regard to waiver of contractual obligation is to be found in Section 63 of the Indian Contract Act. Under that section it is open to a promisee to dispense with or remit, wholly or in part, the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit. Under the Indian law neither consideration nor an agreement would be necessary to constitute waiver. This Court has already laid down in Waman Shriniwas Kini v. Ratilal Bhagwan das & Co. that waiver is the abandonment of a right which normally everybody is at liberty to waive. "A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right." It is well-known that in the law of pre- emption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a pre- emptive right has the effect of the forfeiture of such a right."
By being an attesting witness to the sale transaction petitioner had by his act and conduct acquiesced to the sale of the land sought to be pre-empted. Such an act impliedly amounted to relinquishment of his pre-emptive right and there had been waiver of his right. It is not the petitioner's case that he was not aware of his right at the relevant time when the sale transaction took place. It cannot therefore be said that the petitioner had no knowledge of his right or that he had no intention to waive such a right. Therefore the case of Asian Refractories (Supra) relied upon by the learned counsel for the petitioners is of no avail and not apposite for the purpose of the present case.
For the reasons aforestated I am of the view that the impugned order does not suffer from any illegality or irregularity. Therefore no interference is warranted with the same.
The revisional application is accordingly dismissed. No order as to costs.
Interim order if any stands vacated.
Urgent photostat certified copy of this order if applied for, be given to the applicant upon compliance of requisite formalities.
(Asha Arora, J.)