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High Court Of Calcutta
Jyotirmay Bhattacharya
RATIPATI BANDOPADHYAY - Appellant
Versus
MRINALINI DEBI - Respondent
C. 0. 1212 Of 1996
Decided On : 03/24/2005
PRE-EMPTION - WEST BENGAL LAND REFORMS ACT, 1955 - SECTION 8 - SALE OF LAND BY CO-SHARER TO STRANGER PURCHASER - RIGHT OF PRE-EMPTION - LIMITATION - SECTION 17 OF THE LIMITATION ACT, 1963 - APPLICABILITY - FRAUDULENT SUPPRESSION OF NOTICE - STARTING POINT OF LIMITATION.
Fact of the Case:
The petitioners, co-sharers in a plot of land, filed an application for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955, claiming that the sale of the land by another co-sharer to a stranger purchaser was not an out-and-out sale but a loan transaction. The pre-emptor claimed that the transfer was not a sale in substance and hence, the right of pre-emption could not be exercised.
Finding of the Court:
The court held that the application for pre-emption was barred by the laws of limitation as it was filed 16 months after the completion of registration of sale. The court also held that the right of pre-emption did not accrue in favor of the pre-emptor as the entire interest of the raiyat in the particular plot of land had been sold by the raiyat in favor of another co-sharer of the particular plot of land.
Issues: 1. Whether the application for pre-emption was barred by the laws of limitation? 2. Whether the right of pre-emption accrued in favor of the pre-emptor?
Ratio Decidendi: 1. The court held that the application for pre-emption was barred by the laws of limitation as it was filed 16 months after the completion of registration of sale. The court relied on the decision of the Hon'ble Supreme Court in the case of Gopal Sardar vs. Karuna Sardar, reported in 2004 (4) SCC 252, which held that even in case of a non-notified co-sharer, the period of limitation is one year from the date of completion of registration of the sale deed. 2. The court held that the right of pre-emption did not accrue in favor of the pre-emptor as the entire interest of the raiyat in the particular plot of land had been sold by the raiyat in favor of another co-sharer of the particular plot of land. The court relied on the finding of the learned Munsif that the original raiyat Sarat Chandra Mukhopadhyay was the owner of .04 satak of land in plot No. 2330 and that he gifted .02 satak of land to the pre-emptor/petitioner in 1961. Thus, after such gift, Sarat had only interest in respect of .02 satak of land in the said plot which the successive heirs of Sarat transferred by way of sale unto the pre-emptee/opposite party who was also a co-sharer in respect of the case land along with Sarat and Nalinaksha.
Final Decision: The court dismissed the application for pre-emption as it was barred by the laws of limitation and the right of pre-emption did not accrue in favor of the pre-emptor.
( 1 ) THIS application under Article 227 of the Constitution of India is directed against an order and/or judgment passed by the learned Additional District judge, Birbhum at Rampurhat in Misc. Appeal No. 32 of 1993 affirming the order No. 66 dated 18th September, 1993 passed by the learned Munsif, 1st court at Rampurhat in Misc. Case No. 16 of 1985.
( 2 ) THE pre-emptors are the petitioners in this revisional application before this Court.
( 3 ) THE application for pre-emption was filed on the grounds of co-sharership as well as vicinage.
( 4 ) THE petitioners claim that Sarat Chandra Mukhopadhyay, the original owner of the case plot gifted. 02 satak of land out of. 04 satak of land in the case holding in favour of the petitioners herein by a registered deed of gift dated 4th December, 1961. Thus, the petitioners became the co-sharers in respect of the said case plot with the said Sarat Chandra Mukhopadhyay.
( 5 ) ON the death of Sarat Chandra Mukhopadhyay, his son Gopal Chandra mukhopadhyay inherited the share of his father in the case plot.
( 6 ) THE vendor of the opposite party No. l who is the only heir of Gopal chandra Mukhopadhyay inherited the share of his father in the case land upon the death of Gopal. Thus, the vendor of the opposite party No. 1 who inherited the remaining. 02 satak of land became a co-sharer with the petitioners in respect of the said case land.
( 7 ) SUBSEQUENTLY, the vendor of the opposite party No. l by a deed of sale dated 29th June, 1981 registered on 10th July, 1981 sold and transferred his right, title and interest in respect of his. 02 satak of land to the predecessors-in-interest of the opposite party No. 1.
( 8 ) THOUGH, the pre-emptor/petitioner was a co-sharer but no notice of such transfer was served upon the pre-emptor prior to such sale. The vendor of the opposite party No. l, in fact, transferred his share in the case plot by suppressing such notice. As such, the pre-emptor/petitioner could not know about such transfer at the time of such sale. The pre-emptor/petitioner came to know about the said transfer subsequently and thereafter, the instant application for pre-emption was filed on 16th May, 1985.
( 9 ) REGISTRATION of the said sale was completed under section 61 of the registration Act on 5th January, 1984. Thus, there was delay of about 16 months in filing this application for pre-emption after the date of registration of the said sale deed.
( 10 ) SINCE pre-emptee the opposite party was a stranger purchaser, the pre-emptor/petitioner applied for pre-emption under section 8 of the West bengal Land Reforms Act (hereinafter referred to as the said Act ).
( 11 ) THE said application for pre-emption was contested by the pre-emptee/ opposite party on the ground that the sale which was sought to be preempted was, in fact, not an out and out sale but was a loan transaction. The pre-emptee claimed that since the said transfer was not a sale in substance, the right of pre-emption cannot be exercised in respect of such transfer.
( 12 ) THE learned Trial Judge, after a contested hearing dismissed the said application for pre-emption by holding, inter alia, that in view of the decision of Hon'ble High Court in the case of Damayanti Maiti vs. Asiwini kumar Jana, reported in 1990 (2) CLJ 378, the pre-emptor is not a co-sharer of the holding of the raiyat.
( 13 ) THE learned Munsif, however, found that the claim of the pre-emptor/ petitioner is not barred by the laws of limitation, as the application for preemption was filed within three years from the date of completion of sale. The learned Munsif by relying upon a decision of this Hon'ble Court in the case of Prasanna Giri vs. Gangadhar Raut, reported in 81 CWN 580, held that the period of limitation for filing such an application by the non-notified co-sharer is 3 years from the date of completion of such sale as per the provisions of section 137 of the Limitation Act. The learned Munsif, however, held t
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