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2009 Supreme(Cal) 823
HIGH COURT OF CALCUTTA
BISWANATH SOMADDER, J.
JAGANNATH DHALI
VS.
RAM CHANDRA MANDAL
C. O. No. 3395 of 2006
Decided On: NOVEMBER 20, 2009
The transfer of an immovable property takes effect from the date of registration and not from the date of its execution, and the accrual of cause of action for seeking pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955, arises only once the registration of a deed of transfer is complete.
Headnote:
PRE-EMPTION - WEST BENGAL LAND REFORMS ACT, 1955 - SECTION 8 - Transfer of immovable property takes effect from the date of registration and not from the date of its execution - Single composite application for pre-emption maintainable upon transfer of a single plot of land by six separate deeds of transfer executed on various dates, by virtue of the said deeds being registered on a single date.
Fact of the Case:
An application for pre-emption was filed under Section 8 of the West Bengal Land Reforms Act, 1955, seeking pre-emption in respect of transfer of a plot of land by six separate deeds executed on different dates, but registered on a single date. The petitioners, being the purchasers of the plot, challenged the maintainability of the single composite application for pre-emption.
Finding of the Court:
The Court held that the transfer of an immovable property takes effect from the date of registration and not from the date of its execution. Therefore, the accrual of cause of action for seeking pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955, arises only once the registration of a deed of transfer is complete.
Issues: 1. Whether a single composite application for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955, is maintainable upon transfer of a single plot of land by six separate deeds of transfer executed on various dates, by virtue of the said deeds being registered on a single date. 2. Whether the date of accrual of the right of seeking pre-emption is the date of execution of the deed of sale/transfer or the date of registration of the transfer.
Ratio Decidendi: 1. The Court relied on the provisions of Section 8 of the West Bengal Land Reforms Act, 1955, and Section 49 of the Registration Act, 1908, to hold that the transfer of an immovable property takes effect from the date of registration and not from the date of its execution. 2. The Court also relied on several judgments of the Supreme Court and the Calcutta High Court to hold that the right of pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955, accrues only on the completion of registration of the deed under the Registration Act, 1908.
Final Decision: The Court dismissed the application, holding that a single composite application under Section 8 of the West Bengal Land Reforms Act, 1955, was maintainable in respect of six separate deeds pertaining to the same plot of land executed on various dates, by virtue of the said deeds of sale/transfer being registered on a single date.
( 2 ) THE instant application under Art. 227 of the Constitution of India is directed against an order dated 22nd June, 2006, passed by the learned Additional District Judge, 1st Fast track Court, Hooghly, in Miscellaneous appeal No. 105 of 2003, dismissing the said miscellaneous Appeal.
( 3 ) THE petitioners in the instant application were the appellants and the opposite party Nos. 1 to 5 herein, being the respondents in the said appeal; the rest being pro forma respondents/opposite parties.
( 4 ) BY the order impugned, the learned court below while dismissing the Miscellaneous Appeal, observed inter alia, that transfer of an immovable property takes effect from the date of registration and not from the date of its execution and therefore it did not find anything illegal in the pre-emptors seeking pre-emption in respect of transfer of the plot-in-question, being plot No. 172, by six separate deeds executed on different dates and held the transfers so made under those deeds were to be considered as a single one.
( 5 ) THE genesis of the matter culminating in the order impugned is as follows :-
The predecessor-in-interest of the opposite party Nos. 1 to 5 herein (Tarak Chandra mondal) filed an application initially under section 8 of the West Bengal Non-Agricultural Tenancy Act; later that application was converted to one under Section 8 of the West bengal Land Reforms Act, 1955, seeking pre-emption, on the ground of co-shareship as well as contiguous land ownership, in respect of. 62 decimals out of. 72 decimals in plot No. 172, appertaining to Khatian No. 378 in Mouja Shikhira, District-Hooghly. It was his case that he was a Raiyat in respect of 0. 4 decimal in plot No. 172/792 appertaining to khatian No. 109 and was a co-sharer in the original plot No. 172 and that he owned plot Nos. 170 and 171, measuring 0. 35 and 0. 33 decimal respectively, which were situated contiguous to the plot-in-question, being plot No. 172. The opposite party nos. 6 to 13 herein, had sold their. 62 decimals of land in plot No. 172 to stranger purchasers, being the petitioners herein, by six separate registered deeds of sale No. 5122-27 executed on 5th October, 1982, 6th October, 1982 and 7th October, 1982. It was the specific case of the opposite party Nos. 1 to 5, being the applicants before the learned trial Court, that the sale executed by the pro forma respondents/opposite party Nos. 6 to 13 in favour of the petitioners herein was made without notifying them at a consideration of Rs. 3700/ -. The petitioners herein, as opposite party Nos. 1 to 5 before the learned Trial Court, contested the case before the learned Trial Court by filing a written show cause. It was their specific case that being the owners of the pond in plot No. 173, situated adjacent to the plot No. 172, they had their right to enjoy fruits of the trees of the pond and by that way they had become contiguous owners, having the largest boundary with plot No. 172. They also denied that tarak Chandra Mondal was not notified about the transfer of the plot, rather he was first to be offered with the proposal to purchase the plot, but without any result.
( 6 ) THE learned Trial Court after considering the respective contentions, allowed the miscellaneous pre-emption case and held, inter alia, that the original applicant (Tarak chandra Mondal), was the co-sharer as well as the contiguous land-owner on the basis of evidence adduced which included the report of the Advocate Commissioner and the RS map of Mouja Shikhira.
( 7 ) SUBSEQUENTLY, the petitioners herein preferred an appeal before the learned Court below, under Section 9 of the West Bengal land Reforms Act, 1955, wherein it was contended, inter alia that the learned Trial Court had failed to appreciate the fact that they, being the owners of plot No. 173, i. e. the pond and its catchment area, had the largest common boundary adjacent to plot No. 172, which was
