Kalipada Ghosh v. Paresh Nath Mal — 1980 DIGILAW 195 (CAL)

JUDGMENT: In this rule the petitioner-pre-emptee challenges an order passed by the learned Court of Additional District Judge dismissing the appeal filed by the pre-emptee against an order passed by Shri P. Majhi, Munsif, 2nd Court, Arambag, The opposite party purchased the property described in Ka schedule at the sum of Rs. 3,351/- by a Kobala dated 29.5.66 from Sri Sunil Kumar Singha Roy. The petitioner owns the property described in Kha schedule. Both this lands were recorded under two sub-khatians under the same landlord's khafian no. 5, so that the petitioner was co-sharer in the properly described in Ka schedule and they are entitled to pre-empt on that ground. Their further case is that they are adjoining owners and vicinage is another ground for their prayer of pre-emption. The opposite party resisted the prayer of pre-emption both on the ground of the co-sharership as also on the ground of vicinage, that, owner of the adjoining land. 2. The learned Munsif rejected the claim for pre-emption on the ground of co-ownership but allowed it in part on the ground of vicinage in respect (If petitioner's plot no. 539/1234 which adjoins the plot no. 1234, that is, included in the disputed purchase. The Court of first instance allowed the right of pre-emption in part and the petitioner’s application in respect of plot no. 1234 measuring about 0.19 acres of land was allowed. Against the said order the pre-emptor preferred an appeal which having been allowed the pre-emptee moved this Court. 3. Mr. Seth on behalf of the respondent contended that S. 8 applies where a share in the holding is transferred and not otherwise. He further argued that unless the entire share of the holding is transferred, the adjoining owner under S. 8 of the Act has right of re-purchase as provided in S. 8 of the West Bengal Land Reforms Act. It is argued by Mr. Seth that if a portion of the holding is transferred then the person who is an adjoining owner of such holding or any raiyat possessing land adjoining such holding may pre-empt the said transfer. In the present case the holding comprises different plot of lands, the petitioner kalipada Mal wanted to pre-empt the transfer of all the plots in the holding though he had common boundary with one plot only. In the present case the holding comprises different plot of lands, the petitioner kalipada Mal wanted to pre-empt the transfer of all the plots in the holding though he had common boundary with one plot only. It may be stated that the Court of first instance allowed the preemption in respect of one plot only in favour of Kalipada Mal and against that order an appeal was preferred Kalidada Mal, petitioner herein, however, contended that he is entitled to preempt all plots which are parts of the holding and though in respect of only one of the 13 plots in dispute there is a common boundary between he parties. 4. Mr. Seth appearing for the appellant contended that the petitioner pre-emptee can apply only in respect of the plot with which he his a common boundary and not otherwise. He argued that if the whole holding is transferred, S. 8 of the West Bengal Land Reforms Act has no application. It is further contended by Mr. Seth that if there is a common boundary between the parties in respect of different plots; in 'respect of other plots with which there is no common boundary of the petitioner there cannot be any order for pre emption. 5. Mr. R.N. Mitter on behalf of the respondent however contended that the "holding" under the West Bengal Land Reforms Act is defined in S. 2(6) as follows: - "Holding" means the land or lands held by a raiyat and treated as a unit for assessment of revenue." Keeping it in mind the definition of "holding", S. 8 logically provided, that if any raiyat possessing land adjoining such holding he may pre-empt all the plots, that is the lands which are assessed as land or lands held by a raiyat and treated as a unit for assessment of revenue. 6. Mr. Mitter relied upon the cases reported in 1977(2) CLJ 486 and 1977(1) CLJ 398 . Mr. Mitter also contended with reference to the meaning of holding as defined in the Bengal Tenancy Act. Under S. 3 sub-s. (5) of the Bengal Tenancy Act “Holding" means a separate tenancy. According to him the definition given in the West Bengal Land Reforms Act and the definition given in the Bengal Tenancy Act in respect of the "holding" makes no difference in the eye of law. Under S. 3 sub-s. (5) of the Bengal Tenancy Act “Holding" means a separate tenancy. According to him the definition given in the West Bengal Land Reforms Act and the definition given in the Bengal Tenancy Act in respect of the "holding" makes no difference in the eye of law. It is argued that under the Bengal Tenancy Act the "holding" means a parcel or parcels of land or an undivided share thereof, held by a raiyat or an under-raiyat and forming the subject of a separate tenancy. In the present Act, the holding only defines as land or lands held by a raiyat and treated as a unit for assessment of revenue. In the present case, admittedly the raiyat has a common boundary and therefore Mr. Mitter supported the judgment of the Appeal Court by which the preemptor was allowed to preempt all the 13 plots which admittedly were in the same holding. Mr. Mitter referred to the case reported in 1977(2) CLJ 480 (Satish Chandra Kuila v. Kalipada Maity) paragraph 8 which in a way does not support Mr. Mitter's contention but he contended that that is obiter and is not binding. 7. In this case I requested Mr. Ranjit Kumar Banerjee to address me on the point that whether, if a holding constituted more than one plot and if one of the adjoining owner of only one plot applied is he or is not he entitled to pre-empt all the plots in the holding. Mr. Banerjee has argued before me and I must thank him for giving his time for the Court as amicus curiae. Before I advert to the argument advanced it is convenient for me to refer to the definition of “holding” made under under S. 2(6) of the West Bengal Land Reforms Act and as also S. 8 of the West Bengal Land Reform Act which are as follows:- “2(6). “holding” means the land or land, held by a raiyat and treated as a unit for assessment of revenue.” “8(1). “holding” means the land or land, held by a raiyat and treated as a unit for assessment of revenue.” “8(1). If a portion or share of a holding, any co-sharer raiyat of the holding may, within three months of the service of the notice given under sub-s. (b) of S. 5, or any raiyat possessing land adjoining such holding, may, within four months of the date transfer, apply to the Munsif having territorial jurisdiction, for transfer of the said portion or share of the holding to him, subject to the limit mentioned in S. 14-M, on deposit of the consideration money together with a further sum of ten per cent of that amount: Provided that a co sharer raiyat and a raiyat possessing land adjoining such holding both apply for such transfer, the former shall have the prior right to have such portion or share of the holding transferred to him, and in such a case, the deposit made by the latter shall be refunded to him: Provided further that as amongst raiyats possessing lands adjoining such holding preference shall be given to the raiyat having the longest common boundary with the land transferred. (2) Nothing in this section shall apply to- (a) a transfer by exchange or by partition, or, (b) a transfer by bequest of gift, or heba-bil-ewaz or, (c) mortgrge mentioned in S. 7 or, (d) a transfer for charitable or religious purposes or both without re ervation of any pecuniary benefit for any individual. Chapter II, Raiyat. Section 9) (3) Every application pending before a Revenue Officer at the commencement of S. 7 of the West Bengal Land Reforms (Amendment) Act, 1972, shall, on such commencement, stand transferred to and be disposed of by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every such application shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provisions of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972". 8. 8. Section 8, of the Land Reforms Act provides that if a portion or a share of the holding of a raiyat is transferred to any person other than a co-sharer in the holding, any co-sharer raiyat of the holding may within 3 months from the date of service of the notice given under sub-so (3) of S. 5 apply for transfer of the said portion or in the other words a co-sharer of the holding has right to preempt the said transfer of a portion of the holding BY another co-sharer. The other question is that if a portion of the holding of a raiyat is transferred to any person then any raiyat possessing land adjoining such holding may preempt the said transfer. The question for consideration in the present case is that whether the transfer of a plot out of 13 plots which has a common boundary with the preemptor Raiyat, the said raiyat can preempt all the plots covered by the deed of transfer. In the present case the holding of which a portion was transferred comprises 13 plots and also these 13 plots were scattered in different parts of the Mouza and the preemptor only has a common boundary in respect of one plot only. Now the question is whether S. 8 of the Act gives the right to any raiyat possessing land adjoining such holding to pre-empt the holding which is a part of the holding. A number of decisions have been cited by the: Bar, namely, 78 CWN 779 (Krishnapada Biswas v. Usha R. Naskar). In the said case it has been laid down that when a holding in its entirety is transferred the provisions of S. 8 of the West Bengal Land Reforms Act would be inapplicable as the section is confined only to those cases where a portion or share of a raiyat is transferred. In a case reported in 1980(1) CLJ 203 (Promode Ranjan Banerji v. Nirapada Mandal) also it has been held that when the entire holding is transferred, the application for preemption is not maintainable. In a case reported in 1977(1) CLJ., 398 (Ishan Chandra Ghatak v. Sasadhar Maity) it has been held by the Hon'ble Mr. Justice Rabindra Bhattacharya as follows :- "The "holding" as defined in the Act, may include only one plot of land or may include-several plots. In a case reported in 1977(1) CLJ., 398 (Ishan Chandra Ghatak v. Sasadhar Maity) it has been held by the Hon'ble Mr. Justice Rabindra Bhattacharya as follows :- "The "holding" as defined in the Act, may include only one plot of land or may include-several plots. In the instant case, it appears from the relevant R. S. Khatian that the plot no. 579 and several other plots of land constitute the holding in respect of which there are several co-sharers including Trailakya. When Trailakya has sold his interest in plot no. 579 to a person other than a co-sharer having no land adjoining, the petitioner has a right to claim pre-emption because he has plot just adjoining plot no. 579. In S. 8 there is no qualifying word to "holding". Therefore, the petitioner having land just to the north of plot no. 579 and thus possessing the land adjoining the holding out of which the land in question was sold, is entitled to claim preemption under S. 3". 9. In the case reported in 1977(2) CLJ 480 (Satish Chandra Kuila v. Kalipada Maity) in which I was a party, Mr. Justice G.N. Ray at page 481 in paragraph 4 held as follows: "4. Mr. Mitter next contended that the impugned order must also fail as partial pre-emption is not permissible in law. Mr. Mitter contended that as pre-emption was allowed only in respect of some plots excluding the aforesaid four plots, the learned Munsif was not justified in passing the order of pre-emption in respect of a portion of the holding. In such circumstances, according to Mr. Mitter, pre-emption should have been allowed in respect of the entirety of the and. It may he pointed out at this stage that by allowing partial pre-emption, Mr. Mitter's client has not suffered in any way. On the contrary, such order or partial preemption excluding the aforesaid four plots has enured to the benefit of the petitioner because no order for pre-emption has been passed against him in respect of the said four plots. But appear from this, it appears to us that in the ground of vicinage order of pre-emption should he made in respect of those plots which really are contiguous to the plots of the applicant. But appear from this, it appears to us that in the ground of vicinage order of pre-emption should he made in respect of those plots which really are contiguous to the plots of the applicant. It is quite evident that that the concept of vicinage is of recent origin and in the Bengal Tenancy Act such concept was not introduced. Mr. Mitter relied on two decisions of this court reported in (1) 42 CWN p 288 and (2) 38. CWN p. 654 for the aforesaid proposition that partial pre-emption is not permissible in law. We may point out that such decisions can be clearly distinguished from the facts and circumstances of the instant case and apart from anything else, the question of vicinage had not been considered in those decisions inasmuch as the pre-emption on the ground of vicinage was not known in the Bengal Tenancy Act". 10. Apart from this fact, I fully agree with Mr. Justice G. N. Ray in which I was a party to the judgment; it appears to me that the right of pre-emption according to S. 8 of the Act was a right specifically introduced in order to stop the sub-division and fragmentation. If the adjoining owner is allowed to preempt all the plots of the holding then the very concept of the right of pre-emption. In the ground of vicinage will be set at naught. 11. Mr. Banerjee pointed out from the Case reported in 1949 (2)All England Reporter, 155 at 164 land contended that if necessary the Court can give such meaning to the provision of the Act which is inconsonant with such provision as stated in S. 8(1) of the West Bengal Land Reforms Act. It has been held that the Court is not desirous to give a reasonable meaning to a statutory provision which is inconsonant with the object and reasons of the Act. 12. Mr. Ranjit Kumar Banerjee as amicus curiae contended that its this concept of pre-emption on the ground of vicinage is a new concept and as S. 8 of the West Bengal Land Reforms Act gives the right of purchase to the person who has a land having common boundary with the holding which was sold must necessarily apply in respect of the plot with which the owner of the adjoining plot has a common boundary. If as in this case there are number of other plots with which the adjoining owner has no common boundary, which is scattered and which is a part of the holding, the adjoining owner in respect of only a part can apply for pre-emption of the plot which has a common boundary and he cannot be preempted the other plots in the holding which has no common boundary. This is not to say that this goes to the extent of partial preemption on he adjoining owner in respect of the plot with which he has a common boundary. If the said plot is sold the person who is the adjoining owner is entitled to preempt the said plot alone and not the other plot which has no common boundary with the raiyat of the adjoining plot. In my opinion it is open to the mischief which it was passed to remedy, and then he must supplement the written word so as to give “force and life” to the intention of the legislature (Vide 1949(2) All England Law Reports at 155 at page 164). Craies on Starute Law, 7th Edition, at 96 it has been said that in interpreting an Act of Parliament it is for the Court to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief. In Crawford's Construction of Statutes at page 258, Article 165, it has also been laid down that "Inasmuch as the language of a statute constitutes the depository or reservoir of the legislative intent, in order to ascertain or discover that intent, the statute must be considered as a whole". In the case reported in AIR 1965 SC 553 (Ram Sarup v. Munshi) it has been held that there can be no partial pre-partial pre-emption is the substitution of the pre-emptor in place of the vendee. In the Supreme Court the only question arose, was right of pre-emption by the co sharer. The right of vicinage is a fight which was not there when the Bengal Tenancy Act was in force. In the Supreme Court the only question arose, was right of pre-emption by the co sharer. The right of vicinage is a fight which was not there when the Bengal Tenancy Act was in force. In so far as the West Bengal Land Reforms Act is concerned, the right of vicinage was given to the adjoining owner in order that there may be a compact block for the purpose of remedying the evils of fragmentation or sub-division of agricultural lands. The legislature gave the right to the co-sharers to apply for pre-emption to stop the subdivision of the holding so that the stranger cannot come in and by giving the adjoining owner the right to pre-empt wanted to remedy the fragmentation and to make a compact block for agricultural lands. In the case reported in A1R 1967 SC 1211 (D. Sanjeevayya v. Election Tribunal) on which Mr. Banerjee relied it has been held by the Supreme Court that the provision of a statute should be so read as to harmonise with one another and the provisions of one sect on cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. In order to harmonise all the provisions of S. 8 of the West Bengal Land Reforms Act, a person who is an adjoining owner his a right to pre-empt if he has a common boundary in respect of any plot and if as in this case the pre-emptor has no adjoining land in respect of other plot of the holding his not entitled to pre-empt the said plots though they may be the part of the same holding in accordance with the definition of S. 2(6) of the Act. 13. In my view in accordance with the Legislative intent if it is to be held that the adjoining owner of a holding which comprises a number of different plot scattered all over the Mouza can pre-empt all the plots in the holding though he has a common boundary with the other plots of the holding, the right of vicinage: is in fact a right of the person who has a common boundary with the plot or plots sold. If a person has a common boundary only with the boundary in respect of a number of plots in the holding he is entitled according to me to pre-empt only in respect of the plot or plots. In my view, therefore, the judgment reported 1977(2) CLJ 480 (Satish Chandra Kuila v. Kalipada Maity) is neither obiter nor goes against the intention of legislature, In my opinion, the adjoining owner Will be entitled to preempt those plots with which he has a common boundary. If S. 9 is read along with S. 8 of the Act, it will appear that if there are number of persons holding adjoining plots, the person who has longest common boundary with the holding sold is entitled to pre-empt in preference to one adjoining owner who has a longer adjoining boundary. 14. In the circumstances, in my opinion, the learned Appellate Court was wrong in allowing the pre-emption in respect of all the plots in the holding as admittedly the pre-emptor has a common boundary in respect of plot No. 1234. 15. I, therefore, set aside the Appellate order and uphold the order made by the learned Munsif a lowing the Misc. Case in part and allowing the pre-emption of the petitioner in respect of plot No. 1234 measuring about 19 acres of lands. The Rule is made absolute as indicated above. There will be no order as to costs. Rule made absolute. First Court's order upheld.