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1975 DIGILAW 113 (CAL)

Ashalata Bairagya v. Gopal Chandra Chakraborty

1975-04-29

CHITTATOSH MOOKERJEE, SACHINDRA KUMAR BHATTACHARYYA

body1975
JUDGMENT Mukherjee J. On June 7, 1966 one Kalidasi Devi executed a sale deed in respect of 25 decimals of land in Dag No. 610 and 47 decimals of land in Dag No. 611 comprised in Khatian No. 62, Mouza Kashimpur in favour of the present petitioner for a consideration of Rs. 1000/-. On the following date, that is, June 8, 1966, the said Deed was registered in the office of the Sub-Registrar, Kalna. On April 6, 1967 the present opposite party No. 1, Gopal Chandra Chakravorti, claiming to be the owner of adjoining plots, filed an application under section 8 of the West Bengal Land Reforms Act 1955 before the Sub-Divisional Land Reforms Officer, Kalna for an order of pre-emption. The present petitioner contested the said case. 2. The Sub-Divisional Land Refroms Officer by his order dated April 21, 1970 allowed the said application under section 8 and made an order for pre-emption in favour of the opposite party No.1. The learned District Judge, Burdwan, dismissed the appeal preferred by the present petitioner against the said order of the Sub-Divisional Officer, Kalna, and affirmed the order- for pre-emption made in favour of the opposite party No. 1. 3. Mr. Habibullah, learned Advocate for the petitioners has made two-fold submissions before us. The first submission of Mr. Habibullah was that the bolding in question did not comprise of agricultural lands and, at least, partly it was non-agricultural in character. We are unable to accept this submission made on behalf of the petitioners. In this case the transfer in question and also the application for pre-emption ware made before the enactment of the West Bengal Land Reforms Amendment Act, 1972 Mr. Habibullah did not argue that the definition of the expression, 'Land', in section 2 (7) of the Act as amended by the above West Bengal Act 12 of 1972 would be applicable. Both the Sub-Divisional Land Reforms Officer as also the learned District Judge held that holding to be agricultural in nature. Therefore, We are unable to take any other view with regard to the nature and character of the land involved in the present proceeding, Thus, the first submission made on behalf of the petitioners fails. 4. Both the Sub-Divisional Land Reforms Officer as also the learned District Judge held that holding to be agricultural in nature. Therefore, We are unable to take any other view with regard to the nature and character of the land involved in the present proceeding, Thus, the first submission made on behalf of the petitioners fails. 4. The second sub-mission made on behalf of the petitioners was that the instant application under section 8 of the West Bengal Land Reforms Act having been filed more than four months after the date of the transfer in question the said application under section 8 of the Act was barred by limitation. Haying given our anxious considerations to the matter we are of the view that this contention of the petitioners should be upheld. Section 8 of the Land Reforms Act confers the right of pre-emption upon two classes of persons, namely, co-sharers and contiguous tenants. In the instant case, we are not concerned with the right of purchase of a co-sharer in the event of a portion or share of a holding of a raiyat is transferred to any person other than a co-sharer in the holding. Accordingly, it is unnecessary for our purpose to consider the period of limitation, if any, in case of a co-sharer tenant who is not notified of such transfer in terms of sub-section (5) of section 5 of the West Bengal Land Reforms Act. For the same reason, we refrain from expressing any opinion as whether in the event of such a non-notified co-sharer the provisions of Article 137 of the Limitation Act 1963 would be applicable or not. In the case of a contiguous tenant, section 8 expressly provides that he may exercise his right to purchase under section 8 within four months from the date of transfer of a portion or of a share of a holding of a raiyat to any person other than a co-sharer in the holding. Thus section 8 itself clearly specifies that the commencement of the period of limitation for making an application by in adjoining owner would be the date of the transfer and the other termini of the said period would be expiry of four months from the date of such transfer. Thus section 8 itself clearly specifies that the commencement of the period of limitation for making an application by in adjoining owner would be the date of the transfer and the other termini of the said period would be expiry of four months from the date of such transfer. Unlike the other class of persons eligible to exercise the right of purchase, namely, co-sharer-tenants, section 8 makes no reference to sub-section (5) of section 5 in the matter of the starting point of the period of limitation for making an application for the exercise of the right of purchase by ; contiguous tenant. 5. Mr. Mukherjee learned Advocate for the opposite party, drew our attention to the endorsement on the certified copy of the impugned kobala in favour of the present opposite party which, inter alia, stated that the registration had been effected under the provisions of the Indian. Registration Act read with section 26C of the Bengal Tenancy Act. Mr. Mukherjee further submitted that the certified copy of the sale deed does not indicate that the provisions of section 5 of the West Bengal Land Reforms Act were complied with by the vendor and the vendee. We are unable to accept the submission of Mr. Mukherjee that even in case of a contiguous owner the period of limitation for making an application under section 8 should be calculated with reference to the date on which a copy of the notice is published in the locality in terms of sub-section (4) or section 5. The right of purchase under section 8 arises by transfer of a portion or share of the holding to a person other than a co-sharer and the exercise of such right of pre-emption has not been made conditional or subject to the publication of the notice in terms of section 5 (4) of the Act, at least, in case of contiguous tenants. Mr. Mukherjee did not argue before us that in the event such publication in terms of section 5 (4) is not made, there would be no effective or valid transfer in the eye of law. Therefore, we must proceed on the basis that upon registration of the document in question, there was a transfer in favour of the petitioner who was not a co-sharer in the holding. From the said point of time, the right of purchase accrued to the contiguous tenants. Therefore, we must proceed on the basis that upon registration of the document in question, there was a transfer in favour of the petitioner who was not a co-sharer in the holding. From the said point of time, the right of purchase accrued to the contiguous tenants. In this case such right of purchase was not exercised "by the opposite party No.1 within a period of four months from the date of transfer in question and, therefore, the said application was barred by limitation. 6. Mr. Mukherjee, learned Advocate for the opposite party, submitted before us that in the event of section 8 is construed in the manner above the same may cause hardship and well neigh defeat in a large number of cases the claim of the right of the adjoining owner to exercise the right of pre-emption under the above provision. The right conferred under section 8 is a statutory right and, therefore, it has to be exercised strictly in accordance with the provisions of section 8 and obviously no question of equity arises. Secondly, when section 8 itself expressly provides two different starting points for computation of limitation in case of co-sharers and in case of adjoining owners, we are not prepared to read into the section something which is not there in order to give an extended period of time to the adjoining owners for exercising their right of pre-emption. It was rightly pointed out that, in any event, some period of time is bound to lapse between the, date of presentation of a document of transfer for registration and the actual publication in the locality in terms of section 5 (4). Section 5(4) does not also prescribe any time limit within which such publication is to be made. Therefore, as presently advised, we are unable to hold that in case of an adjoining owner the period of limitation is to be counted not from the date of transfer but from some other point of time. 7. In the instant case, the learned District Judge purported to apply under Article 137 of the Limitation Act, 1963. In our view the same was clearly erroneous. Presumably, the learned Distr1ct Judge was thereby seeking to apply the ratio decidendi of the decision of the Special Bench in (1) 52 CWN 64 (Asmatali Sharip v. Mujarali Sardar). 7. In the instant case, the learned District Judge purported to apply under Article 137 of the Limitation Act, 1963. In our view the same was clearly erroneous. Presumably, the learned Distr1ct Judge was thereby seeking to apply the ratio decidendi of the decision of the Special Bench in (1) 52 CWN 64 (Asmatali Sharip v. Mujarali Sardar). In the first place, Section 26F of the Bengal Tenancy Act in the context of which the above Special Bench decision was delivered did not contemplate the right of an adjoining owner to exercise the right of pre-emption. Secondly, the principal point for consideration in Asmatali's case was whether there was any period of limitation in case of an exercise of a right of pre-emption by a non-notified co-sharer tenant and, if so, which was the appropriate provision applicable. In Asmatali's case the Special Bench, inter alia, found that an application contemplated by section 26F of the Bengal Tenancy Act should be regarded as an application under the Civil Procedure Code or, at any rate, as an application for the making of which the Civil Procedure Code gave authority. Accordingly, it was held that an application by an non-notified co-sharer for pre-emption under section 26F of the Bengal Tenancy Act would be governed by Article 181 of the Limitation Act, 1908 and the applicant had three years time from the date of transfer when the right to apply accrue. In the instant case, the opposite party No. t was an adjoining owner. Secondly, section 8 of the West Bengal Land Reforms Act itself prescribed four months limitation commencing from the date of transfer. Therefore, there could be no occasion, in any event, for invoking the provision of Article 137 of the Limitation Act, 1963. Therefore, we propose not be examine the further question whether the scope of Article 137 of the Limitation Act 1963 and that of 181 of the Limitation Act 1908 are same or not. The said question which does not arise for decision in the present case is, accordingly, left open. In the above view, the application filed by the opposite party No.1 was clearly barred by limitation. He did not even attempt to make out any case for either enlargement of time or extension of time or for suspension of time. Therefore, we need not advert to the said aspect of the case. 8. In the above view, the application filed by the opposite party No.1 was clearly barred by limitation. He did not even attempt to make out any case for either enlargement of time or extension of time or for suspension of time. Therefore, we need not advert to the said aspect of the case. 8. Although a point regarding constitutional validity of section 8 was taken in the application under Article 227, the said point was not urged at the time of final hearing of the Rule. We, accordingly, make this Rule absolute; set aside the orders of the learned District Judge and also of the Sub-Divisional Land Reforms Officer and dismiss the application under section 8 of the West Bengal Land Reforms Act filed by the opposite party No.1. In the circumstances of the case, the parties will bear their respective costs throughout. The opposite party No.1 will be entitled to withdraw the sum deposited by him along with his application under section 8 of the Act. Let the records go down as expeditiously as possible.