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IN THE HIGH COURT OF CALCUTTA
Harish Tandon, J.
Sk. Sajhan Ali & Ors. - Plaintiffs
Versus
Sk. Saber Ali & Anr. - Opposite Parties
C.O. No. 345 of 2015 and C.A.N. No. 2170 of 2015
Decided On : 10-3-2015
PREEMPTION - WEST BENGAL LAND REFORMS ACT, 1955 - SECTIONS 2(6), 2(10), 5, 8, 14 - Whether application under Section 8 of the Act is maintainable when the entire undivided share in a plot of land is transferred by a co-sharer to a stranger - Whether limitation would reckon from the date of the knowledge and not from the date when the registration is complete under Section 61 of the Registration Act, 1908 - Whether oral partition is recognised under the West Bengal Land Reforms Act, 1955.
Fact of the Case:
A preemption application was filed under Section 8 of the West Bengal Land Reforms Act, 1955 by the plaintiff, who was a co-sharer of a plot of land, seeking a transfer on payment of the consideration money and the compensation, after the proforma opposite party, who was the other co-sharer, sold his entire share in the property to the defendants. The trial court dismissed the application on the ground that Section 8 of the Act can only be attracted if a portion of the share in the plot of land is transferred and not when the entire share is transferred. The appellate court reversed the said finding and held that even if the entire share is transferred, the application under Section 8 of the Act is maintainable. The defendants challenged the appellate court's order in a revisional application before the High Court.
Finding of the Court:
The High Court held that the application under Section 8 of the Land Reforms Act, 1955 is maintainable even when the entire undivided share in a plot of land is transferred by a co-sharer to a stranger. The Court further held that the limitation would reckon from the date when the registration is complete under Section 61 of the Registration Act, 1908 and not from the date of the knowledge. The Court also held that oral partition is not recognised under the West Bengal Land Reforms Act, 1955.
Issues: 1. Whether the application under Section 8 of the Land Reforms Act, 1955 is maintainable when the entire undivided share in a plot of land is transferred by a co-sharer to a stranger? 2. Whether the limitation would reckon from the date of the knowledge and not from the date when the registration is complete under Section 61 of the Registration Act, 1908? 3. Whether oral partition is recognised under the West Bengal Land Reforms Act, 1955?
Ratio Decidendi: 1. The word 'or' between the words 'portion' and 'share' in Section 8 of the Land Reforms Act, 1955 implies that if a raiyat transfers his entire portion or share in a plot of land to a person other than the co-sharer of raiyat, the preemption is permissible. 2. The transfer of a plot of land shall be treated not from the date of presentation of the deed or the service of notice under Section 5 of the Act but from the date when the Registrar inserted the instrument into the register under Section 61 of the Registration Act, 1908. 3. There is no concept of oral partition recognised under the West Bengal Land Reforms Act, 1955, which may otherwise be permissible by way of any custom or usage or contract.
Final Decision: The High Court dismissed the revisional application and upheld the judgment and order of the appellate court.
Harish Tandon, J.
1. This revisional application is directed against the judgement and order dated January 6, 2015 passed by the learned Additional District Judge, re-designated Court, Paschim Medinipur in Miscellaneous Appeal no. 635 of 2011, reversing the judgement and order dated May 17, 2011 passed by the learned Civil Judge (Junior Division), Ghatal in Judicial Misc. Case No. 25 of 2009.
2. The preemptee has filed the instant revisional application challenging the order of the Court of appeal below by which an application under Section 8 of the West Bengal Land Reforms Act, 1955 is allowed by reversing the judgment and order of the Trial Court.
3. The facts discernible from the respective pleadings of the parties are adumbrated herein below:-
4. The property described in schedule 'Kha' to the plaint originally belonged to one Aglima Khatoon @ Agli Khatoon and one Nasiman Biwi in equal shares. Nasiman Biwi executed registered deed of gift on September 27, 1965 by which her undivided share in respect of the said property was gifted to the plaintiff/opposite party and the proforma opposite party in equal share. By a subsequent deed of settlement dated November 19, 1993 the plaintiff/opposite party settled his undivided share in favour of Nasiman Biwi for her life. After the death of the said Nasiman Biwi and Agli Khatoon the said property devolved upon the plaintiff/opposite party and the proforma opposite party in equal share i.e. undivided 50% share in respect thereof. Subsequently the plaintiff/opposite party sold, transferred and conveyed half of his share in favour of the proforma opposite party; by virtue whereof the said proforma opposite party became the owner of undivided 75% share in the property. By a registered deed of conveyance dated August 22, 2006 the proforma opposite party sold, transferred and conveyed his total share in favour of the defendants/petitioners for valuable consideration mentioned therein.
5. The plaintiff opposite party thereafter filed the instant miscellaneous proceeding originated on the basis of an application under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act) seeking a transfer on payment of the consideration money and the compensation. The defence as it appears from the written-statement was founded on the allegations that the application under Section 8 of the said Act is barred by limitation having filed after the lapse of more than three years from the date of the knowledge of the registration of the sale deed. It is further alleged that prior to the institution of the aforesaid proceeding, a partition suit was filed being Title Suit No. 27 of 2007 which was dismissed for default on June 5, 2009 and, therefore, the plaintiff/opposite party had the knowledge of such transfer much prior to the filing of the preemption proceeding. It is further alleged that the proforma opposite party transferred his entire share in respect of the suit premises and, therefore, the preemption is not permissible under the said Act.
6. The trial Court dismissed the Miscellaneous Case as Section 8 of the said Act can only be attracted if a portion of share in plot of land is transferred and not when the entire share is transferred.
7. The appellate Court reversed the said finding with categorical observation that even if the entire share is transferred, the application under Section 8 of the said Act is maintainable.
8. At the time of moving the revisional application it was pointed out by Mr. Chatterjee, learned Advocate for the petitioner that a coordinate Bench of this Court in Case of Kinkar Mahato & Ors. v. Sahan Mahato & Ors. reported in 2005 (3) ICC 05, has held that when a co-sharer raiyat transfers a portion of the share of his interest in the plot of land, then only the right of preemption can be exercised under Section 8 of the West Bengal Land Reforms Act.
9. I had an occasion to consider the point whether the preemption under Section 8 of the sa
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