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1975 DIGILAW 284 (CAL)

Jayanta Kumar Das v. Gour Hari Das

1975-09-16

CHITTATOSH MOOKERJEE

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JUDGMENT On 23rd April, 1968 Sarat Chandra Das executed two kabalas in favour of the petitioners transferring the lands in dispute. On 24th April, 1968 the said kobalas were registered. On 12th March, 1969 the opposite party no. 1 had filed the aforesaid applications under section 8 of the West Bengal Land Reforms Act, 1955, inter alia, contending that he was a co-sharer tenant of the vendor of the present petitioners and he was entitled to purchase the said portions or shares of the holding sold in favour of the present petitioners. The Revenue Officer, Contai, allowed the said applications of opposite party no. 1, Gour Hari Das. The learned Additional District Judge dismissed the appeals preferred by the petitioners against the said preemption order. 2. Admittedly the aforesaid lands formed portions of a holding of raiyat. Both the Revenue Officer and the learned Additional District judge have found that the opposite-party, Gour Hari Das was a co-sharer of the petitioners vendor Sarat in the aforesaid holding. According to the material on record, on 26th June, 1960 Gour Hari Das who was a raiyat had sold shares or portions of the aforesaid holdings in favour of Sarat who was the vendor of the present petitioners. The Full Bench in the case of (1) Madan Mohan Ghosh and others v. Sishu Bala Atta and others reported in 76 CWN page 1058 also recognised that in case after vesting a raiyat of a holding transferred a share or portion of the holding his transferee would be a co-sharer within the meaning of Section 8 of the West Bengal Land Reforms Act, 1955. Thus it is clear that after vesting Sarat and Gour had become co-sharer–tenants. Therefore, I hold that the present opposite party has locus standi to file application for preemption. 3. Both the Revenue Officer and the learned Additional District Judge have concurrently found that no notice in terms of Section 5 (5) of the West Bengal Land Reforms Act was served upon the preemptor Gour Hari Das. The only point in this Rule is what would be the period of limitation for filing an application for preemption by a non-notified co-sharer tenant. 4. The right of preemption under section 8 arises by an act of transfer of a portion or share of a holding. The only point in this Rule is what would be the period of limitation for filing an application for preemption by a non-notified co-sharer tenant. 4. The right of preemption under section 8 arises by an act of transfer of a portion or share of a holding. The existence of right of preemption of a co-sharer does not depend upon service of notice under section 5(5). In this connection see the observations of the Special Bench in the case of (2) Asmatali Sharip appellant-petitioner v. Mujaharali Sardar and another respondents-opposite party reported in 52 CWN page 64 (SB) at pages 66 and 67. In case of a transfer of a share or holding by a raiyat two classes of persons can exercise right of preemption under Section 8, namely–(a) co-sharer tenant ; and (b) contiguous tenant. Section 8 further provided that a co-sharer tenant who has been given a notice under sub-section (5) of Section 5 must apply within three months from the date of the service of such notice. In case of a contiguous tenant the period of limitation for filing an application under Section 8 is to be computed from the date of the transfer in question irrespective of service or publication of any notice under Section 5 (5). In fact sub-section (5) of Section 5 does not contemplate any service of notice of transfer upon a contiguous tenant. The Section 8 or 9 of the West Bengal Land Reforms Act does not, however prescribe any period of time for making an application of preemption under Section 8 by a co-sharer tenant who has not been served with a notice under sub-section 5 of Section 5. I have already observed that every co-sharer tenant of a holding acquires a right of purchase under Section 8 in case of a transfer of a portion of a share of a holding irrespective of service of any notice upon him under sub-section 5 of Section 5. In the instant case, the application under section 8 was heard and disposed of by the Revenue Officer who was then vested with jurisdiction under section 8 (1). The amendments on sections 8 and 9 made by the West Bengal Land Reforms (Amendment) Act, 1972 were not applicable to the instant case inasmuch as the Revenue Officer had disposed of the proceeding before him before the commencement of the said Amending Act. The amendments on sections 8 and 9 made by the West Bengal Land Reforms (Amendment) Act, 1972 were not applicable to the instant case inasmuch as the Revenue Officer had disposed of the proceeding before him before the commencement of the said Amending Act. The Revenue Officer did not function as a Civil Court and be exercised only some and not all powers of a Civil Court under Civil Procedure Code (see Section 57 of the West Bengal Land Reforms Act, 1955). In the above view, an application before the Revenue Officer, under section 8 (1) of the Act, as the same stood at the relevant time, cannot be considered as an application under the Civil Procedure Code. 5. The Special Bench in (2) Asmatali Sharip v. Mujaharali Sardar reported in 52 CWN page 62 laid down that the corresponding Article 181 of the Limitation Act 1908 would be applicable because the Special Bench found that an application under Section 26F of the Bengal Tenancy Act was for all intent and purpose an application under the Code of Civil Procedure. Bijan Kumar Mukherjee, J. as he then was, in his judgment in Asmatali's case (supra) had referred in this connection to the provisions of Section 143 of the Bengal Tenancy Act which, according to the learned Judge, also applied to original proceedings like Preemption Applications by virtue of Section 141 of the Code of Civil Procedure. Harries, CJ and Bijan Kumar Mukherjee, J. in their later decision in (3) Hurdutrai Jagadish Prasad & ors., appellants v. Official Assignee of Calcutta, respondent reported in 52 CWN page 343 pointed out that Article 181 of the Limitation Act, 1908, applied to applications under the Civil Procedure Code and did not apply to an application under Section 56 of the Presidency Town Insolvency Act. Therefore, an application under Section 56 can be instituted at any time during the continuance of the insolvency proceedings and there is no fixed time-limit for doing so. I may in this connection also refer to the observations of S. R. Das, J. as his Lordship then was, in the case of (4) Sha Mulchand and Co. Ltd., appellant v. Jawahar Mills Ltd., Salem, respondent reported AIR 1953 SC 98 at pages 103-104. See Also the cases of (5) The Bombay Gas Co. I may in this connection also refer to the observations of S. R. Das, J. as his Lordship then was, in the case of (4) Sha Mulchand and Co. Ltd., appellant v. Jawahar Mills Ltd., Salem, respondent reported AIR 1953 SC 98 at pages 103-104. See Also the cases of (5) The Bombay Gas Co. Ltd. v. Gopal Bhiva and others respondent reported in AIR 1964 SC 752 (paragraph 14) ; and the decision in (6) Wazir Chand Mahajan and another, appellants v. The Union of India, respondent reported in AIR 1967 SC 990 . The Supreme Court has held that the scope of Article 181 of the Limitation Act, 1908 is the same as that of Article 137 of the Limitation Act, 1963. 6. Recently M. M. Dutt, J. in his judgment dated January 19, 1973 in (7) Makhanlal Chakraborty v. Md. Abdul Hamid Kaviraj in CR 3871 of 1969 had occasion to consider the applicability of Article 137 of the Limitation Act, 1963 to proceedings for preemption under Section 8 of the West Bengal Land Reforms Act, 1955. M. M. Dutt, J. decided that in view of the Supreme Court decision in (8) Town Municipal Council, Athani v. The Presiding Officer, Labour Court, Hooghly & ors., AIR 1969 SC 1335 and (9) Nityanand M. Joshi v. L.I.C. of India (1969) II SCA 468 he was bound to hold that Article 137 of the Limitation Act was not applicable to applications other than applications under the Civil Procedure Code. I respectfully agree with the said part of the observations of M. M. Dutt, J. in (7) Makhan Lal Chakravorty v. Md. Abdul Hamid Kaviraj in CR no. 3871 of 1969. 7. It follows that the statute has not prescribed any period of limitation in case of non-notified co-sharer tenants for making application under section 8. I have already observed that sub-section (i) of section 8 prescribes period of three months in case of a co-sharer tenant who is served with notice under sub-section 5 of section 5 of the West Bengal Land Reforms Act. Although right to apply for preemption arises by transfer the West Bengal Land Reforms Act had failed to prescribe any period of limitation for filing application under Section 8 before the Revenue Officer for non-notified cosharers. This seems to be a case of casus omissus. Although right to apply for preemption arises by transfer the West Bengal Land Reforms Act had failed to prescribe any period of limitation for filing application under Section 8 before the Revenue Officer for non-notified cosharers. This seems to be a case of casus omissus. In view of the pronouncements made by the Special Bench in Asmatali's case (Supra) which is binding upon me, I am not permitted to fill up the said lacuna by applying the test of reasonable time in cases of preemption rights of non-notified co-sharer tenants. Therefore, I cannot accept the suggestion made by Mr. Ghosh that in case of a non-notified cosharer the reasonable period of limitation would be three months from the date of their knowledge of transfer of a share or portion of holding. Bijan Kumar Mukherjee J. in Asmatali's case (supra) at pages 68-69 clearly pointed out that it is not open to the court to adopt such a course. 8. In the above view with some amount of regret. I have come to the conclusion that in case of applications under Section 8(1) which lay before the Revenue Officer under the state of law existing prior to the enactment of the West Bengal Land Reforms Amendment Act, 1971 there was no period of limitation for applications under section 8 by non-notified cosharer tenants. It is not necessary for the purpose of this case to express any opinion with regard to the period of limitation, if any, in case of applications by a not-notified co-sharer tenant filed in the court of the Munsif having territorial jurisdiction. 9. In the above view the instant preemptions in the applications were not barred. These Rules, therefore, fail. I, therefore, discharge the Rules without any order as to costs.