Kedarnath Panchadhoyee v. Nagendra Nath Mahapatra — 1980 DIGILAW 102 (CAL)

JUDGMENT This Rule is directed against the judgment and order dated May 12, 1978 of the Court of Appeal below reversing those passed by the learned Munsif on an application under S. 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the Act). 2. The facts relevant for the present purposes are as follows: The Opposite Parties Nos. 1 to 4 on November 27, filed an application under S. 8 of the Act alleging that the Opposite Party No. 5 Baskar Chandra Giri transferred to the present petitioners Kedarnath and Janakinath 10 decimals of land out of Plot No. 1090 and 16 decimals out Plot No. 1092, both appertaining to Khatian No. 996, that the kobala whereby aforesaid transfer was made was executed on April 19, 1970 and the registration thereof was completed on September 5 and 16 decimals out Plot No. 1092, both appertaining to Khatian No. 996, that the kobala whereby aforesaid transfer was made was executed on April 19, 1970 and the registration thereof was completed on September 5, 1970 and that the (the Opposite Parties) were co-sharers in respect of the Jama in question and were also the owners of land adjoining the land transferred. 3. The present petitioners who were the pre-emptees resisted the said application under S. 8 and denied that the said pre-emptors were co-sharers in the Jama in question or that they were the holders of land adjoining the land transferred. Those objectors also claimed to have purchased 10 decimals of land out of said Plot No. 1090 from one of the co-sharers, namely, Srihari Patra by a kobala dated November 11, 1957 and thus they came to be co-sharers and also claimed to be holders of land adjoining the land transferred. 4. The learned Munsif who initially heard the case dismissed the said application under S. 8. On an appeal being preferred from the decision of the learned Munsif the Court of Appeal below while rejecting the case of the pre-emptors that they were co-sharers sent the case back on remand to the learned Munsif for affording the pre-emptors an opportunity of proving their case of ownership of adjoining land. Further evidence on the question involved was adduced after such remand and the learned Munsif again dismissed the application under S. 8 holding that the pre-emptors were neither co-sharers nor owners of land adjoining the land transferred. Further evidence on the question involved was adduced after such remand and the learned Munsif again dismissed the application under S. 8 holding that the pre-emptors were neither co-sharers nor owners of land adjoining the land transferred. There was again an appeal from that decision of the learned Munsif. The Court of Appeal allowed the appeal and set aside the learned Munsif's decision and the application for pre-emption was allowed. The Court of Appeal this time held that the application for pre-emption should be allowed on the ground of the pre-emptors being holders of land adjoining the land transferred. 5. At the hearing of this Rule the learned Lawyers representing the parties agreed that the question whether the pre-emptors were co-sharers in respect of the concerned holding cannot now be gone into inasmuch as by earlier concurrent finding of both the Courts below that question was finally decided and the same cannot be re-agitated at this stage. Thus, we have to proceed on the footing that the pre-emptors failed to prove the case that they were co-sharers of the concerned holding. 6. The only question, therefore, that requires determination is whether the pre-emptors are entitled to pre-empt in their capacity of owners of land adjoining the land transferred. 7. Mr. Purna Chandra Basu, learned Advocate appearing for the petitioners contended that the Court of Appeal below was wrong in taking up for consideration a new case which was not the case of the pre-emptors as disclosed in their original application under S. 8 or even in their application as it stood after amendment. Accordingly he argued that the Courts of Appeal below acted illegally and with material irregularity in exercise of its jurisdiction in having taken up for consideration such a new case. Admittedly, in the original application the case of pre-emptors is that the concerned holding which is recorded in Khatian No. 996 included a part of both Plots Nos. 1090 and 1092 while the rest of Plots Nos. 1090 and 1092 was included in Khatian No. 758. It is the further case of the pre-emptors that as they are possessing land in the holding recorded in Khatian No. 758 which is a holding different from and adjoining the holding which includes the land transferred they are holders of land adjoining the land transferred. On the materials on record Mr. It is the further case of the pre-emptors that as they are possessing land in the holding recorded in Khatian No. 758 which is a holding different from and adjoining the holding which includes the land transferred they are holders of land adjoining the land transferred. On the materials on record Mr. Basu is justified in saying that in the application under S. 8, as it stood before or after the amendment, the pre-emptors/opposite parties did not claim to be in possession of land adjoining the land transferred on the basis of their ownership of Plot No. 1091. Mr. Shantimoy Panda, appearing for the pre-emptors opposite parties in this regard contended that even though there was no specific mention of Plot No. 1091 there was clear reference to Khatian No. 758 which recorded the holding which included also Plot No. 1091. This is no answer to Mr. Basu's contention referred to above. A perusal of the application under S. 8 of Act as it stood either before or after the amendment would show that no case was made out in respect of possession of Plot No. 1091. Instead specific mention was made of the other two plots namely, Plot Nos. 1090 and 1092. The averments made in paragraph 3 of the application under S. 8 of the Act are material in this regard. Further, the materials on record show that the holding recorded in Khatian No. 758 was being held jointly by the pre-emptors, the pre-emptors and other and that there was no partition. Accordingly, it cannot be said that any specific portion of that holding is in possession of the pre-emptors, pre-emptees or others. In such circumstances, it cannot be held that the pre-emptors are holding land adjoining the land transferred. On the same ground the pre-emptors cannot claim to be in possession of land adjoining the land transferred inasmuch as they along with the pre-emptees and the others were in joint possession of that part of Plot No. 1090 and Plot No. 1092 which was included in the holding recorded in Khatian No. 768. The judgment and decree (Exhibits 4 and 5) are material in this regard. In view of what is stated above the case of the pre-emptors that they are entitled to pre-empt the land transferred as they are in possession of land adjoining the land transferred ought to fail. 8. Mr. The judgment and decree (Exhibits 4 and 5) are material in this regard. In view of what is stated above the case of the pre-emptors that they are entitled to pre-empt the land transferred as they are in possession of land adjoining the land transferred ought to fail. 8. Mr. Basu, learned Advocate for the petitioners also argued that the application under S. 8 of the Act was barred by limitation in view of the fact that it was made long after the lapse of 4 months from the date of execution of the kobala in question. The execution of the kobala, the presentation of the kobala for registration and the completion of registration took place respectively on April 19, 1970, June 1, 1970 and September 5, 1970. The application under S. 8 of the Act was filed on November 27, 1970. It the period of limitation for 4 months is to commence from the date of execution of the transfer the application under S. 8 of the Act is barred by limitation but if the date of starting of the period of limitation is the date of completion of registration of the kobala under S. 60 and 61 of the Indian Registration Act, the application under S. 8 of the Act is well within time. Mr. Basu in support of his contention that it is the date of the execution of the kobala which is the starting point of the period of limitation relied on Satya Mandalini & Anr. v. Sahadur Mondal & ors. AIR 1962 Cal. 40 , Ganesh Prasad Bhadelal Baniya & Anr. v. Bhaiyalal Gillelal Agarwal & Anr. AIR 1938 Nag 253, and Smt. Ashalata Bairagya & Anr v. Gopal Chandra Chakraborty & ors. 1975(1) CLJ 494. Mr. Basu also referred to certain other decisions which would seemingly go against his contention but he tried to distinguish those decisions with a view to establishing that they did not in fact lay down any principle opposed to that relied upon by him. The decision so referred to are Hiralal Agarwal etc. v. Rampadartha Singh & ors. AIR 1969 SC 244 , Ram Saran Lall & ors. v. Mst. Domini Kuer & ors. AIR 1961 SC 1747 , and Maloy Kumar Bera v. Rabindra Nath Bera 1977(1) CLJ 92. 9. The decision so referred to are Hiralal Agarwal etc. v. Rampadartha Singh & ors. AIR 1969 SC 244 , Ram Saran Lall & ors. v. Mst. Domini Kuer & ors. AIR 1961 SC 1747 , and Maloy Kumar Bera v. Rabindra Nath Bera 1977(1) CLJ 92. 9. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act XII of 1962 by S. 16 lays down inter alia, that if a transfer is made to a person other than a co-sharer of a raiyat at of an adjoining land, such a co-sharer or a raiyat shall be entitled within 3 months from the date of registration to apply before the Collector in the prescribed manner for transfer of the land to him on terms and conditions contained in the deed of transfer provided that no such application shall be entertained unless the purchase money together with 10, thereof is deposited in the prescribed manner within the said period. This being the provision contained in the said Bihar Act. Their Lordships in Hiralal Agarwal's case (supra) took the view that no such transfer would be complete without the deed of transfer being duly registered. Thus, it follows that the period of limitation according to that decision would be start running not from the date of execution but from the date of registration. In Ram Saran Lall's case (supra) the question involved was one relating to pre-emption under the Mohammedan Law. Under the Mohammedan Law as stated in Mulla's Principles of Mohammedan Law the right of pre-emption arises only out of a valid, complete and bona fide sale. One of the pre-requisites for the exercise of the right of pre-emption is a preliminary demand to be made by the pre-emptors and such demand is to be made after the completion of the sale. According to S. 54 of the Transfer of Property Act, a valid sale of a tangible immovable property of the value of Rs. 100/- and upwards can be made only by a registered instrument. Such registration becomes complete only when the instrument of sale was copied in the books of the Registration Office in terms of S. 61 of the Indian Registration Act. There, in that case the date of the execution of the said deed was January 31, 1946 and the completion of registration was on February 9, 1946. Such registration becomes complete only when the instrument of sale was copied in the books of the Registration Office in terms of S. 61 of the Indian Registration Act. There, in that case the date of the execution of the said deed was January 31, 1946 and the completion of registration was on February 9, 1946. It was contended on the strength of S. 47 of the Registration Act that when after the registration of a document it takes effect from the date of its execution the preliminary demand required by the Mohammedan Law to be made before the right of pre-emption may be exercised, if made after January 31, 1946, would be a valid preliminary demand enabling the party making the demand to be entitled to pre-emption. This argument was not found acceptable to majority of the Judges deciding the case. In this regard, I feel tempted to quote the following passage from the majority decision in Ram Saran's case : "Section 47 of the Registration Act does not, however, say when a sale would be deemed to be complete. It only permits a document when registered to operate from a certain date which may be earlier than the date when it was registered. The object of this section is to decided which of two or more registered instruments in respect of the same property is to have effect. The section applies to a document only after it has been registered. It has nothing to do with the completion of the registration and therefore nothing to do with the completion of a sale when the instrument is one of sale. A sale which is admittedly not complete until the registration of the document of sale is completed, cannot be said to have been completed earlier because by virtue of S. 47 the instrument by which its effect, after it has been registered, commences to operate from an earlier date. Therefore, we do not think that the sale in this case can be said, in view of S. 17, to have been completed on January 31, 1946." 10. This view, according to Their Lordships, was the view taken in Tilakdhari Singh v. Gour Narayan AIR 1912 Pat 150, Naresh Chandra Dutt v. Girish Chandra Das ILR 62 Cal 979 : AIR 1936 Cal 17, and Gobardhan Bar v. Gangadhar Bar AIR 1941 Cal 78. This view, according to Their Lordships, was the view taken in Tilakdhari Singh v. Gour Narayan AIR 1912 Pat 150, Naresh Chandra Dutt v. Girish Chandra Das ILR 62 Cal 979 : AIR 1936 Cal 17, and Gobardhan Bar v. Gangadhar Bar AIR 1941 Cal 78. Thus, it follows from the discussions aforesaid that when the bare question is when a transfer becomes a transfer proper or in other words, a valid transfer, immaterial date is the date of completion of registration of the deed of transfer and not the date of execution thereof. In Malay Kr. Bera's case (supra) which was decided by C. Mookerjee J. it is held that S. 8(1) read with S. 5 of the West Bengal Land Reforms Act, 1955 clearly intends that only upon completion of the registration of the instrument of transfer of a share or portion of a holding of a raiyat, the right of the co-sharer/tenant or a tenant possessing land adjoining the land transferred to pre-empt accrues. According to C. Mookerjee J. till the completion of registration the transfer remains only an inchoate transfer. In that view of the matter the period of limitation prescribed by S. 8(1) of the Act starts running from the date of completion of the registration of the document of transfer. In Satish Chandra Kulia v. Kalipada Mity & ors. 1977(2) CLJ 480 , a Division bench of this Court also took the view that an application under S. 8 of the West Bengal Land Reforms Act would be held to have been filed within the period of limitation if the same were filled within the prescribed period from the date of registration of the document and not from the date of its execution. In so holding Their Lordships relied on the decision in Gostha Behari Das v. Rajbala Dei 60 CWN 57. In Gostha Behari Das's case (supra), Chakravarti C. J. and Mallik J. while deciding the case under S. 25F of the Bengal Tenancy Act, 1885 and considering the effect of S. 47 of the Indian Registration Act, 1908 held that the date of the accrual of the right of pre-emption was not the date of execution of the deed or any earlier date but the date when the deed of sale was registered and title effectively passed. Chakravarti C.J. while delivering the judgment found that the question was not free from difficulty. Chakravarti C.J. while delivering the judgment found that the question was not free from difficulty. According to His Lordship the difficulty could be obviated if S. 47 of the Registration Act was treated as limited in its application to the successive transfers of the same property but His Lordship at the same time pointed out that the language of the section was sufficiently wide to cover other cases as well. Accordingly even though His Lordship accepted the view referred to above the difficulty could not be ultimately solved. Similar view was taken in Gobardhan Bar's case (supra). The decision in Satya Mandalini's case (supra) which was one of the cases relied upon by Mr. Basu can be explained away on the hypothesis that S. 47 of the Indian Registration Act has application to cases of successive transfers of the same property. This view of mine also finds support from the case of Gostha Behari Das (supra). The principle laid down in the case of Satya Mandalini (supra) does not apply to cases like the present one. In clear terms it was laid down by the Supreme Court in Radhakishan Laxminarayan Toshniwal v. Sridhar Ramchandra Alshi & ors. AIR 1960 SC 1368 that where the parties entered into a mere agreement of sale it creates no interest in favour of the vendee and the proprietary title does not validly pass from the vendor to the vendee and until the sale is completed to right to enforce pre-emption arises. In the case of Hiralal Agarwal (supra) the view taken is that on the basis of S. 47 of the Indian Registration Act, it cannot be argued that once registration is effected the title under the sale deed relates back to the date of execution of the sale deed so as not to render the application presented prior to completion of registration as premature. Thus the case of Satya Mandalini (supra) is of no avail to the petitioners in this case. Similarly in view of the law laid down by the Supreme Court as explained above the decision in the case of Ganesh Prasad Bhadelal Baniya (supra) relied on by Mr. Basu is also no longer good law. Further the facts of that case are distinguishable from the facts of the present case. Similarly in view of the law laid down by the Supreme Court as explained above the decision in the case of Ganesh Prasad Bhadelal Baniya (supra) relied on by Mr. Basu is also no longer good law. Further the facts of that case are distinguishable from the facts of the present case. Further in view of what is stated above the view taken in the case of Smt. Asha Lata Bairagya (supra) by C. Mookerjee and S. K. Bhattacharya JJ. Cannot be accepted as correct. Further it may be noted that C. Mookerjee J. in a later decision of his rendered in Malay Kumar Bera's case (supra) takes a different view and holds that the right of pre-emption under S. 8 of the West Bengal Land Reforms Act accrues only on the completion of the registration of the deed of transfer under S. 61 of the Registration Act. In this case, His Lordship took note of the decision in cases including the case of Hiralal Agarwal (supra). 11. Mr. Basu further argued that the principle laid down in the case of Ram Saran Lall (supra) and that the Hiralal Agarwal (supra) has no application to a proceeding under S. 8 of the West Bengal Land Reforms Act. In the case of Ram Saran Lall the question involved related to pre-emption under the Mohammedan Law while in Hiralal Agarwal's case the question involved was a right of pre-emption exercisable under the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act XII of 1962. I find no substance in this contention of Mr. Basu, for, as already stated the right of pre-emption under the Mohammedan Law arises only out of a valid, complete and bona fide sale and so such a right commences only after there is a valid sale effected in accordance with the provisions of the Indian Registration Act. Similarly in a case commenced on the basis of an application under S. 8 of the West Bengal Land Reforms Act on ground of transfer of a portion or share of a holding of the raiyat the period of limitation should start from the date of completion of registration inasmuch as such a transfer shall under S. 5(1) of the same Act be made by an instrument which must be registered. Thus, both under the Mohammedan Law as also under the West Bengal Land Reforms Act, before there may be a transfer giving rise to a right of pre-emption such transfer must be a valid and binding transfer and it is only after completion of registration of the deed of transfer that a valid and binding transfer may be there. Similarly, according to the provisions of the said Bihar Act the application for pre-emption was to be filed within 3 months from the date of registration of the document of transfer. So, the contention of Mr. Basu that the principle laid down in Ram Saran Lall's case (supra) and Hiralal Agarwal's case (supra) cannot be applied to the present case on the ground that on facts those two cases are clearly distinguishable from the present one has no substance. 12. In view of the fact that the first contention of Mr. Basu, the learned Advocate appearing for the petitioners, succeeds the Rule ought to be made absolute and the impugned order ought to be set aside. 13. The Rule is accordingly made absolute and the order impugned is set aside. There will, however, be no order as to costs. Rule made absolute.