Calcutta High Court
Ramgati Khan vs Gobinda Chandra Khan on 6 May, 2005
Equivalent citations: 2006(4)CHN328
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
JUDGMENT Jyotirmay Bhattacharya, J.
1. Since common questions of law are involved in both these revisional applications, this Court proposes to dispose of both the aforesaid revisional applications by a common order.
2. These applications under Article 227 of the Constitution of India are directed against two appellate orders passed in connection with two appeals arising out of two pre-emption proceedings both initiated by the common pre-emptor against the common pre-emptee under Section 8 of the West Bengal Land Reforms Act.
3. The pre-emptee is the petitioner in both the applications.
4. The pre-emptor filed two applications for exercising his right of preemption in respect of two separate transactions by which the original raiyat of the land transferred two different plots of land being plot Nos. 2453 and 2454 to the pre-emptee, a stranger purchaser, on the ground of vicinage.
5. The learned Trial Judge rejected both the applications for pre-emption by holding, inter alia, that the pre-emptor does not hold any land contiguous to the plot of land transferred to the pre-emptee.
6. The said orders passed by the learned Munsif, 2nd Court at Arambagh in the pre-emption proceedings being Misc. Case No. 41 of 1989 and Misc. Case No. 42 of 1989 respectively, were challenged by the pre-emptors in appeal before the learned Additional District Judge, Arambagh.
7. The appeal which was directed against the order passed by the learned Munsif in connection with Misc. Case No. 41 of 1989 was registered as Misc. Appeal No. 8 of 2000. The other appeal which was directed against the order of the learned Trial Judge passed in Misc. Case No. 42 of 1989 was registered as Misc. Appeal No. 9 of 2000. The case land which was sought to be preempted in Misc. Case No. 41 of 1989 is plot No. 2454 In the other misc. case being Misc. Case No. 42 of 1989, the pre-emptor sought to pre-empt the sale in respect of plot No. 2453.
8. The learned Appellate Court allowed both the appeals by holding, inter alia, that the pre-emptor holds plot Nos. 2452 and 2455 which are contiguous to the suit plots.
9. Challenging the said orders of the learned Appellate Court, the aforesaid revisional applications were filed by the pre-emptee/petitioner.
10. Mr. Basu, learned Advocate, appearing for the petitioner, challenged the propriety of the impugned orders on three-fold grounds.
11. Firstly, Mr. Basu submitted before this Court that the applications for pre-emption are barred by the laws of limitation, as the said applications were not filed by the pre-emptor within four months from the date of execution of the deed of transfer by which the suit plots were transferred by the raiyat in favour of the pre-emptee. Mr. Basu pointed out that the disputed sale took place on 8th May, 1989 and 10th May. 1989 respectively and the applications for pre-emption were filed on 14th September, 1989. Thus, according to Mr. Basu, the applications for pre-emption are barred by the laws of limitation and as such, the said applications for pre-emption should be rejected.
12. In support of such submission, Mr. Basu relied upon a decision of this Court in the case of Amal Kumar Giri v. Nani Gopal Paira, reported in 2004 (2) CLJ (Cal) 161.
13. Secondly, Mr. Basu contended that the finding of the learned Court of Appeal below regarding the contiguity of the land of the petitioner suffers from perversity, inasmuch as such findings are contrary to the evidence on record.
14. By referring to Exhibits 1 and 2 relying on which the learned Appellate Court came to the conclusion that the pre-emptor holds land in plot Nos. 2452 and 2455. Mr. Basu submitted that such findings of the learned Appellate Court is not supported by the said documents. Mr. Basu pointed out that Exhibit 1 shows that the plaintiff purchased undefined share in the said plot being plot No. 2452. Similarly, by referring to Exhibit 2, Mr. Basu pointed out that the pre-emptor purchased some interest in plot No. 2446 which is not a land contiguous to the case land. Mr. Basu further contended that nothing could be shown by the pre-emptor regarding his title with regard to plot No. 2455.
15. Thus, Mr. Basu submitted that the pre-emptor being a co-owner of a contiguous plot being plot No. 2452, cannot maintain the said applications for pre-emption on the ground of vicinage. According to Mr. Basu, in order to obtain an order of pre-emption on the ground of vicinage, the pre-emptor must prove that he is the absolute owner of the land contiguous to the plot of land in respect of which pre-emption was sought for.
16. Thirdly, the maintainability of the pre-emption proceeding has also been challenged in view of the amendment of the West Bengal Land Reforms Act.
17. Mr. Basu further submitted that both the aforesaid applications for pre-emption were filed prior to the amendment of Section 8 of the West Bengal Land Reforms Act. Mr. Basu pointed out that by the said amendment, the holding of the land has been substituted by the plot of land and thereby a substantial change has been introduced in the laws of pre-emption by the said amendment. Thus, according to Mr. Basu, in the absence of amendment of the pleadings, the application for pre-emption, as it stands now, cannot be maintained.
18. Kazi Md. All, learned Advocate, appearing for the pre-emptor/opposite party, supported the said order of pre-emption by submitting that the applications for pre-emption were filed within the prescribed period of limitation. Mr. Ali pointed out that though the sale deeds were executed and registered on 8th May, 1989 and 10th May. 1989 respectively, but in fact the registration was completed under Section 61 of the Registration Act on 18th November. 1989.
19. Thus, Mr. Ah submitted that the applications for pre-emption which were filed on 14th September, 1989, i.e., even before the completion of registration under Section 61 of the said Act, cannot be held to be barred by limitation.
20. Mr. Ali further submitted that even assuming that the pre-emptor has no interest in plot No. 2455, but still then it cannot be disputed that the pre-emptor is a co-owner of plot No. 2452 which he purchased by the deed being Exhibit-1.
21. By relying upon a decision of this Court in the case of Bula Kundu v. Nirmal Kumar Kundu and Anr. reported in 2000 CWN 776, Mr. Ali submitted before this Court that a co-owner of an adjoining plot can very well maintain the application for pre-emption. Mr. Ali further submitted that for maintaining an application for pre-emption, the pre-emptor need not prove that he is the absolute owner of the adjoining plot.
22. Mr. Ali further contended that the pre-emptor cannot be non-suited merely because of change of the provision of Section 8 of the West Bengal Land Reforms Act during the pendency of the pre-emption proceeding. The only change which has been introduced by such amendment is that the expression holding of a raiyat has been substituted by the plot of land of the raiyat.
23. Mr. Ali submitted that if the materials on record are sufficient to show that the applications for pre-emption can be considered within the scope of amended provision of pre-emption under the West Bengal Land Reforms Act, then the Court can very well consider the claims of the respective parties in the context of such amended provision. Thus, Mr. Ali submitted that the formal amendment of the pleading is not at all necessary as pointed out by Mr. Basu.
24. Heard the learned Advocates of the parties. Considered the materials on record.
25. I have carefully considered the contention of the petitioner regarding the maintainability of these applications for pre-emption on the bar of limitation. The decision which was cited by Mr. Basu in support of his said contention in the case of Amal Kumar Giri v. Nani Gopal Paira, reported in 2004 (2) CLJ (Cal) 161, appears to me as per incuriam in view of the earlier decisions of this Hon'ble Court in the case of Malay Kumar Bera v. Rabindra Nath Bera, reported in 1977 (1) CLJ 92 and also in the case of Satish Chandra Kuila v. Kalipada Maity, reported in 1977 (2) CLJ 480, wherein this Court uniformly held that the limitation for making the application for pre-emption on the ground of vicinage will run from the date of registration of the sale deed and not from the date of execution of the deed because the date of registration is the date of accrual of the right of pre-emption. It has also been uniformly held in both the aforesaid decisions that the date of registration means the date when the registration of the deed of transfer is completed under Section 61 of the Registration Act.
26. I have already indicated above that the applications for pre-emption were filed even before the completion of registration under Section 61 of the said Act. As such, the applications are well within the prescribed period of limitation.
27. With regard to the second contention of Mr. Basu, I find that Exhibit-1 shows that the pre-emptor holds land in plot No. 2452 which is contiguous to both the suit plots being plot Nos. 2453 and 2454. However the objection which has been raised by the petitioner to the effect that the pre-emptor being a co-owner of the contiguous plot, cannot exercise his right of preemption, cannot be sustained in view of the decision of this Court in the case of Bula Kundu (supra).
28. The decision cited by Mr. Basu in the case of Rekha Rani Maity and Ors., v. Jagatpati Sashmal, reported in 1995 WBLR (Cal) 263, has no application in the facts of the instant case for the following reasons :
It appears from the said citation that both the pre-emptor and the pre-emptee were co-sharers of the suit plots and there was no partition between them. Under such circumstances it was held that the application for pre-emption on the ground of vicinage was not maintainable.
But here in the instant case, it is not the case of the pre-emptee that the pre-emptee is also a co-sharer either of the suit land or of the adjoining plot with the pre-emptor and as such, the principles laid down in the said citation cannot be applied in the instant case.
29. The effect of the said citation in the case of Rekha Rani Maity and Ors. (supra) has been sufficiently dealt with in the subsequent decision of this Court in the case of Bula Kundu (supra) wherein it has been held that in order to maintain an application for pre-emption on the ground of adjoining ownership it is not necessary that the applicant must be the full owner of the adjoining holding. The relevant part of the said judgment is set out hereunder :
17. In my opinion, in order to maintain an application for pre-emption on the ground of adjoining ownership it is not necessary that the applicant must be the full owner of the adjoining holding. Even a co-sharer of the adjoining holding may apply for pre-emption. Similarly, I do not find any substance in the contention of Mr. Banerjee that pre-emptor must have land adjoining the portion of the land which has been transferred by the disputed transaction. The language of Section 8 of the Act makes it clear that the applicant for pre-emption must be adjoining owner of the holding part of which has been transferred by the disputed transaction. Therefore, even if a holding consists of three plots e.g. (a), (b) and (c) and the pre-emptor is a co-sharer of the adjoining holding consisting of three different plots e.g. (d), (e) and (f) and if by the disputed transaction a part of plot (a) has been transferred, a co-sharer of holding consisting of plot Nos. (d), (e) and (f) can maintain such application although there is no common boundary line between the plot (a) of the holding consisting of plot Nos. (a), (b), (c) and the holding consisting of plot Nos. (d), (e) and (f). As pointed out by this Court in the case of Ishan Chandra Ghatak v. Sasadhar Maity, reported in 82 CWN 195, relied upon by Mr. Roychowdhury appearing on behalf of the opposite parties, in Section 8 there is no qualifying word to 'holding' and thus it is not necessary that the pre-emptor must be holding land adjoining the actual land sold by the disputed transaction.
30. Thus, I hold that a co-owner is the owner of every inch of the property until the property is partitioned by metes and bounds. As such, it cannot be said that the pre-emptor is not a raiyat possessing land adjoining the plot of land being "Kha" schedule property. Relying upon the said decision of this Court in the case of Bula Kundu (supra), I hold the pre-emptor being a co-owner of the adjoining plot can maintain the application for pre-emption on the ground of vicinage.
31. With regard to the last contention of Mr. Basu, I hold that if from the materials on record, the claim of the parties can be considered in the context of the amended provision of the West Bengal Land Reforms Act relating to the laws of pre-emption no further amendment of pleadings and/or remand the proceeding for fresh trial before the Trial Court, is necessary for disposal of the pre-emption proceeding.
32. Here in the instant case, I have already indicated above that the claim of the respective parties can be considered on the materials on record in the context of the amended provision of the laws of pre-emption and as such, the application for pre-emption need not be remanded back, as suggested by Mr. Basu.
33. Accordingly, I hold that these revisional applications do not deserve any merit for consideration.
34. These applications, thus, stand rejected.
35. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
Later
36. A prayer for stay of operation of this judgment and order has been made by the learned Advocate appearing for the petitioner.
37. Having considered such prayer, this Court finds that such prayer does not avarrant any merit. Accordingly, such prayer for stay stands rejected.