Samarendra Jana v. Basanta Kumar Shit — 1978 DIGILAW 10 (CAL)

JUDGMENT 1. THIS rule relates to an application for pre-emption under Section 8 of the W. B. Lands Reforms Act which was allowed by the learned Munsiff, 1st Court, at Contain in Case No. 57 of 1973 on the 21st of June, 1975 and later on affirmed on an appeal by the 3rd Court of the Additional District Judge, Midnapore on the 6th of April, 1976. 2. IT appears that one Kshirode chandra Shit, since deceased, who was the owner of the disputed plot no. 865 died after the date of vesting leaving him surviving his widow, one son and three daughters. The Opposite Party, basanta Kumar Shit, the original applicant before the learned Munsiff, purchased the share of the widow and son on 2. 11. 1967. But the present petitioner before this court purchased the share of the three daughters of the said Kshirode Chandra Shit since deceased on 5. 7. 1972 and 22. 7. 1972. No notice of transfer was served on the said Basanta Kumar Shit under section 5 (5) of W. B. Land Reforms Act. The opposite party then filed the application for pre-emption under section 8 of the W. B. Land Reforms Act which succeeded. Mr. Bhunia, the learned Advocate, appearing in support of the rule urged mainly four points before this court His first contention was that the opposite party was not a co-sharer of the property at all and as such was not entitled to pre-emption. The basis for his contention is that the opposite party made the purchase in 1967 and then mutated his name and has been paying rent separately. Therefore he could not be regarded as a co-sharer. He relied on section 50 of the W. B. Land Reforms Act particularly sub-sec. (a) and (b). The said section relates to maintenance of the record of rights by incorporating changes on account, inter alia, of (a) mutation of names as a result of transfer or inheritance and (d) variation of revenue. Mr. Bhunia contended that since the name of the opposite party was mutated and since he paid rents separately his share was separate from that of others and he could not be called a co-sharer. 3. THE Court is unable to accept the validity of the said submission. There is a difference between the splitting up of tenancy and change in the ownership. 3. THE Court is unable to accept the validity of the said submission. There is a difference between the splitting up of tenancy and change in the ownership. Recognition of transfer of some portions of a plot does not necessarily amount to splitting up of the tenancy. Section 50 (a) of the land Reforms Act, as Mr. Mukherjee appearing for the opposite parties pointed out, only permits mutation of name as a, result of transfer or inheritance. 4. IN this connection it may he relevant to refer in section 88 of the bengal Tenancy Act which specifically provided that a division of tenancy or distribution of rent shall not be valid unless such division or distribution has been expressly consented to in writing by both the landlord and all the co-sharer tenants. The splitting up of the tenancy can happen only as a result of the agreement of ail concerned. As was pointed out in the case of S. R. Chowdhurani v. A. N. Tagore by a division Bench of this Court reported in I. L. R. 1949 (1) Calcutta 165, Section 88 of the Bengal Tenancy Act does not contemplate distribution of a portion of the rent, which if done, may be an best an arrangement for convenience without affecting the legal rights and liabilities of either side. Moreover, section 50 as compared to section 88 of the Bengal Tenancy Act does not specifically relate to any splitting up or division of tenancy. Mr. Bhunia's argument, it seems, seeks to equate an arrangement for convenience in terms of section 50 W. B. Land Reforms Act to be converted into a sub-division of tenancy which is not contemplated by law. Mr. Bhunia's attempt to make a distinction between rent and revenue and his reference to an observation of anil Kumar Sen, J. in Civil Rule No. 2488 (W) of 1970, which was quoted by me in my judgment, Provash Chandra mondal v. State of West Bengal, reported in 81 C. W. N. page 1026 at p. 1031 are also of no avail. Sen, J's observation which was relied on is that the petitioner "had acquired independent" tenancy under the State apart from her title derived by purchase. That very sentence indicates that there was something more than more purchase in that case there was acquirement of independent tenancy under the state. Sen, J's observation which was relied on is that the petitioner "had acquired independent" tenancy under the State apart from her title derived by purchase. That very sentence indicates that there was something more than more purchase in that case there was acquirement of independent tenancy under the state. Confusion may arise if the implications of splitting up are not borne in mind, mr. Mukherjee, the learned advocate, while arguing to oppose the rule aptly illustrated it by stating that suppose an owner A died leaving B, C and D as his heirs the names of B. C and D may be subsequently recorded either in the same khatian (Khang dang) or if they so want by agreement of all concerned there may be splitting up resulting in the opening up of a subordinate khatian. The point to note is that fresh title does not spring up from the mere recording of names. Question of law apart, there are other difficulties confronting Mr. Bhunia. This argument was never advanced before the two lower courts. On the other hand paragraph 3 of the petition for pre-emption completely goes against the contention of Mr. Bhunia inasmuch as it states that the vendor "became a co-sharer of the owners". In paragraph 7 of the petition the factum of mutation of name and payment of rent were also denied. In the circumstances even the factual basis for the argument cannot be said to be unassailable. The argument of Mr. Bhunia therefore must be rejected. 5. THE second contention of Mr. Bhunia was that one application in respect of two sales from two different persons was not maintainable. This point was also not urged in the courts below. Moreover, the point seems to have been concluded by a decision of a division Bench of this Court reported in I. L. R. 1971 (1) Calcutta 213. 5. THE second contention of Mr. Bhunia was that one application in respect of two sales from two different persons was not maintainable. This point was also not urged in the courts below. Moreover, the point seems to have been concluded by a decision of a division Bench of this Court reported in I. L. R. 1971 (1) Calcutta 213. It was held in that case (at page 223); "the contention that the application was bad as it contained three prayers of pre-emption in respect of three different transfers has really no substance at all the transfers being made in favour of the same person and in respect of different portions of the same holding it was quite appropriate that the three causes of action, arising out of these transfers, should be joined in the same petition." It is unnecessary to add anything to what has been so clearly stated in that decision. Moreover the provision 1 of section 99 C. P. C. are there which enjoin upon the court not to interfere in case of any misjoinder of parties or causes of action unless the merit of the case or the jurisdiction of the court is affected. There is no allegation that such is the present case. 6. MR. Bhunia thirdly argued that the application was barred by limitation. The two sales were made the 5th of July and 22nd July, 1972 and the application was made on the 23rd April, 1973. Section 8 of the W. B. Land Reforms Act contemplates an application within three months of the service of the notice. In this case there was no notice served. Mr. Bhunia argued later. According to him the residuary article namely article 137 of the Limitation act which provides for three years would not be available to the applicant inasmuch as the said article relates to an application made under the code. According to Mr. Bhunia the learned Munsif acted only as a persona designata and not as a court. He referred to a decision reported in 1975 (1) C. L. J. 436: Jayanta Kumar Das v. Gour Hari Das. where Chittatosh mukherji, J. held that there was no period of limitation for an application under section 8 by a non-notified co-sharer tenant which lay before a revenue officer prior to the enactment of the W. B. Land Reforms Amendment act of 1971. where Chittatosh mukherji, J. held that there was no period of limitation for an application under section 8 by a non-notified co-sharer tenant which lay before a revenue officer prior to the enactment of the W. B. Land Reforms Amendment act of 1971. He expressed no opinion with regard to the period of limitation in case of an application before a learned Munsiff having teritorlal jurisdiction. As already noted Mr. Bhunia contended that as only territorial jurisdiction was mentioned without any reference to the financial power the learned Munsiff should be regarded as a persona designata and not as a court. This contention also does not seem to be of substance. Under section 8 of w. B. Land Reforms Act, the period of limitation commences only on the service of notice. Unless the notice is served there is no commencement of the period of limitation at all. In the case of Prasanna Giri v. Gangadhar rao, reported in 81 C. W. N. 580 it has been held by a Division Bench of this court that after the passing of the west Bengal Land. Reforms Amendment Act, 1972 article 137 of the limitation Act, 1963 would apply to an application for pre-emption under section 8 of the W. B. Land Reforms Act, 1955. That settles the point. In order to avoid application of that decision he sought to emphasise that the munsif having territorial jurisdiction was not a court and did not come within the ambit of the decision of that case. The stand taken by Mr. Bhunia is difficult to sustain. If the Munsiff is not a court the principle of the decision in the case reported in 1975 (1) C. L. J. 436 (Supra) would be applicable and there would be no period of limitation, In fact on that basis Mr. Saktinath mukherjee, the learned advocate for the opposite parties, promptly stated that he did not want to join issue with mr. Bhunia on the ground that the munsiff is not a court. If the Munsiff is not a court there is no limitation. In the other case it would be covered by the decision reported in 81 C. W. N. 580 (Prasanta v. Gangadhar). Mr. Bhunia persisted that in 81 C. W. N. 580 there was no reference to a munsiff having territorial jurisdiction. The distinction sought to be made out by Mr. In the other case it would be covered by the decision reported in 81 C. W. N. 580 (Prasanta v. Gangadhar). Mr. Bhunia persisted that in 81 C. W. N. 580 there was no reference to a munsiff having territorial jurisdiction. The distinction sought to be made out by Mr. Bhunja was a distinction without a difference. It was an attempt at intellectual acrobatics trying to walk on a thin high wire of reasoning which strictly does not exist. The result is an inevitable collapse his attempt to create a new category out of the expression "munsiff having territorial jurisdiction without being either a court or not a court like the revenue officer" is bold and ingenious but hardly seems to be tenable. Even if Mr. Mukherjee conceded that it was not a court in the battle of wit, this court, as already stated, feels bound by the decision of the Division Bench. In view of the aforesaid consideration it is not necessary to refer to the other case which Mr. Bhunia cited in his reply namely nityananda v. Life Insurance Corporation 1969 (11) S. C. A 468 where am observation was made to the following effect: "it seems to us that it may require serious consideration whether application to courts under other provisions apart from Civil. Procedure Code are included within the article 137 of the Limitation act or not". The aforesaid observation does not take away the relevance of the considerations already made above. In the circumstances there is hardly any scope to upheld the contention of Mr. Bhunia. Lastly Mr. Bhunia argued that the transactions were not sales but only loans. Whether the transactions are loans or sales according to him were judisdictional facts and the lower courts should have decided the same. It, however, appears from the judgment of the lower appellate court that the learned additional Judge went into this question at some length. He has even pointed out that the daughters of kshirode or their husband were not examined to state anything about the agreement for reconveyance. The evidence of O. P. W. 2 and 3 were not satisfactory. He observed that the daughters of Kshirode might raise objection in appropriate proceedings in Civil court for declaration that the sale deeds are nothing but loan transaction. The evidence of O. P. W. 2 and 3 were not satisfactory. He observed that the daughters of Kshirode might raise objection in appropriate proceedings in Civil court for declaration that the sale deeds are nothing but loan transaction. He was of the view that there was no scope on the facts and circumstances to hold that the transactions were loan transactions. Again of the three vendors, the agreement for reconveyance were made only with two. The daughter did not come forward to support the case for reconveyance. 7. IT may be noted that even under section 26 (F) of the Bengal tenancy Act a Division Bench of this court, in the case of Sital Chandra kolay v. Mihir Lal Kolay, reported in 58 C. W. N. 1000, held that the agreement for resale creates some sort of fiduciary relationship between the parties, to the benefit of which the original transferor will be entitled to long as the agreement remains in force in law, and this fiduciary relationship or the benefit thereof which arises simultaneously with the agreement for resale and therefore simultaneously with the transfer too is available against a transferee with notice and is not affected by Section 26f (7) of the bengal Tenancy Act. It was held specifically that the pre-emptor appellants in that case under section 26 (F) of the bengal Tenancy Act who instituted a pre-emption proceedings with notice of the said agreement for resale were bound by the same and cannot resist its enforcement by reason merely of sub-section (7) of Section 26 (F) of the Bengal Tenancy Act. It is to be noted moreover that the scheme of the w. B. Land Reforms Act is different from that of the Bengal Tenancy Act. As would appear from section 10, right title and interest of both the transferror raiyat and the transferee shall vest in the pre-emptor raiyat. Section 26f (7) only referred to the transferee. There is, therefore, no reason to uphold the contention of Mr. Bhunia in this respect. This argument also must fail. The result is that the petition fails. The rule is discharged. Rule discharged.