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1988 Supreme(Cal) 352
High Court of Calcutta
Pabitra Kumar Banerjee, J.
Rangalal Mondal
Vs.
Sudarsan Burman
CIVIL REVISION No. 1397 and 1398 of 1984
Decided on : 26th August, 1988
Prabir Kr. Samanta for petitioner
Haradhan Banerjee, Amitava Pyne for opposite party
The right of pre-emption under section 8(1) of the West Bengal Land Reforms Act, 1955, can only be exercised by a co-sharer in respect of a portion of a holding of a raiyat, and the application for pre-emption must be filed within three months from the date of the transfer.
Headnote:
WEST BENGAL LAND REFORMS ACT, 1955 - SECTION 8(1) - RIGHT OF PRE-EMPTION - CO-SHARER - LIMITATION - SERVICE OF NOTICE - REGISTRATION OF DOCUMENT - EFFECTIVE DATE OF TRANSFER.
Fact of the Case:
The petitioner, a pre-emptor, filed two applications under section 8(1) of the West Bengal Land Reforms Act, 1955 (the Act) before the Munsif Court, Howrah, exercising his right of pre-emption in respect of portions of a disputed holding transferred to the opposite party. The applications were dismissed by the Munsif on the grounds that the petitioner was not a co-sharer, the applications were barred by limitation, and the disputed holding was a raiyati one held for agricultural purposes. On appeal, the Additional District Judge allowed the appeals and held that the petitioner was a co-sharer, the applications were not barred by limitation, and the disputed holding was not a raiyati one held for agricultural purposes. The opposite party filed revisional applications challenging the judgment of the Additional District Judge.
Finding of the Court:
The High Court held that the petitioner was not a co-sharer in respect of the disputed holding at the time of the transfers and, therefore, the applications were not maintainable. The Court further held that the applications were barred by limitation as they were not filed within three months from the date of the transfers. The Court also held that the disputed holding was a raiyati holding held for agricultural purposes.
Issues: 1. Whether the petitioner was a co-sharer in respect of the disputed holding at the time of the transfers? 2. Whether the applications were barred by limitation? 3. Whether the disputed holding was a raiyati holding held for agricultural purposes?
Ratio Decidendi: 1. The Court held that the petitioner was not a co-sharer in respect of the disputed holding at the time of the transfers because his sale deed was registered after the sale deeds in favor of the opposite party. The Court relied on the provisions of sections 47 and 61 of the Indian Registration Act, 1908, and the decisions of the Supreme Court in Ramswaran Lal and Others v. Mst. Damini Kuer and Others (AIR 1961 SC 1747) and Hiralal Agrawal v. Ram Pada Rath Singh (AIR 1969 SC 244). 2. The Court held that the applications were barred by limitation because they were not filed within three months from the date of the transfers. The Court held that the period of limitation for exercising the right of pre-emption under section 8(1) of the Act is three months from the date of the transfer and that the transfers became operative against a third party with effect from the date when the registration of the documents was completed. 3. The Court held that the disputed holding was a raiyati holding held for agricultural purposes. The Court relied on the provisions of section 2(10) of the Act and the decision of the Supreme Court in Pandurang Dhondi Chougule and others v. Maruti Bori Yadav and others (AIR 1966 SC 153).
Final Decision: The High Court set aside the judgment of the Additional District Judge and dismissed the revisional applications.
The judgment and order dated 15.2.84 passed by the learned Addl. District Judge, Howrah in Miscellaneous Appeal nos. 226 and 227 of 1981 is under challenge in these two revisional applications heard analogously. In order to appreciate the basis of the challenge aforesaid it would be appropriate to refer to certain facts as under.
2. Plot no. 837 measuring 32 decimals appertaining to khatian no. 1834 of mouza Dhulagori in the district of Howrah originally belonged to two brothers -Panchulal Naskar and Durlav alias Dulal Chandra Naskar each having undivided 8 annas share therein. Panchulal Naskar died first leaving behind him three sons and a widow and the pre-empt or-petitioner Sudarshan Burman purchased the entire share held by Panchu in the holding from his legal heirs by a registered sale deed dated 7.5.64 (Exbt. 4 (a)). Dulal died in or about 1972 and was survived by his widow Panchubala, two sons Nemai and Adhir and three daughters Angur, Bedana and Umatara. By a registered sale deed dated 4.5.74 (vide Exbt. 4) the petitioner purchased the share of Adhir measuring 02.2/3 decimals of land in the disputed holding and the other heirs of Dulal transferred their interest in the same holding to the opposite party, Rangalal Mondal by two registered sale-deeds dated 6.5.74 & 28.5.74 respectively (vide Exbt. 1 and 1(a)). On 11.10.74 the petitioner filed two applications under s. 8(1) of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the Act) before the 5th Court of Munsif at Rowrah exercising his right of pre-emption in respect of the portions of the disputed holding transferred to the opposite party and these two applications were registered respectively as L.R. Case nos. 7 and 8 of 1974. Both the applications were contested by the opposite party Rangalal by filing written objections.
3. The learned Munsif heard the two L.R. cases analogously and by a single judgment dated 18.9.81 dismissed the applications holding inter alia that since the Estates Acquisition Act, 1953 came into force, the tenancies of Panchulal and Dulal stood separated, that the applications were barred by limitation because the pre-emptor had constructive notice of the transfers and that the disputed holding was a raiyati one held for agricultural purpose. Eventually, both the applications were dismissed on contest. This is how the learned Munsif disposed of the L.R. cases referred to above.
4. On appeal the learned Additional District Judge held that the preemptor-petitioner was a co-sharer in respect of the disputed holding, that he being a non-notified co-sharer was entitled to the benefit provided under Article 137 of the Limitation Act, 1963. With regard to the nature, character and purpose of the tenancy, the learned Judge held in agreement with the learned Munsif that the holding was a raiyati one and that the tenancy was for agricultural purpose. The appeals were allowed and that is how the two Miscellaneous Appeals stood disposed of. Feeling aggrieved, the pre-emptor has come up in revision and obtained rules which have been contested by the pre-emptor. This time the table turned and the pre-emptor has figured as the petitioner and the pre-emptor as the opposite party.
5. Mr. Prabir Samanta, the learned advocate appearing for the pre-emptee-petitioner assailed the impugned judgment and order of the learned Additional District Judge on three grounds, namely, (1) that the pre-emptor-petitioner (in the L.R. cases) was not a co-sharer within the meaning of s. 8(1) of the Act, (2) that the applications before the learned Munsif were barred by limitation and (3) that the subject matter of the pre-emption proceedings was not the share of a holding of a raiyat. Mr. Haradhan Banerjee, the learned advocate for the pre-emptor-opposite party, on the other hand, supported the impugned judgment and order on the same grounds as recorded by the learned Additional District Judge while disposing of the two miscellaneous appeals. Taking the last gro
