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1987 DIGILAW 392 (CAL)

SABITRI BALA RAY v. GOURI SANKAR DUTTA

1987-12-15

G.N.RAY

body1987
G. N. RAY, J. ( 1 ) - These Rules are directed against the Judgement and Order, dated 21st November, 1984 passed by the 2nd Additional District Judge, Burdwan in Misc, Appeals Nos. 104 and 103 of 1983 affirming the judgment and Order No. 63, dated 4th June, 1983 passed by the learned Munsif, 3rd Court, Burdwan in Misc. Cases Nos. 25 and 34 of 1979. ( 2 ) IT appears that the opposite party Gouri Sankar Dutta purchased the Kha Schedule property on 8th June, 1978 from the owner Shri Nani Gopal Panja. The said Gouri Sankar Dutta came to know from the certified copy of the Kobala that the husband of the petitioner Shri Bibhuti Bhusan Roy purchased Ka schedule property by a Kobala, dated 23rd August, 1978 and as such, Sri Gouri Sankar Dutta being an earlier purchaser and thus becoming a co-sharer of the property intended to pre-empt and he made an application for pre-emption of the disputed property under Section 8 of the West Bengal Land Reforms Act on that ground. ( 3 ) IT is an admitted case that the sale deed of the pre-emptor Sri Gouri Sankar Dutta was not registered prior to the registration of the sale deed made in favour of the pre-emptee. But the pre- emption application was allowed by the learned Munsif and was upheld by the learned Additional District Judge on the footing that although the document was registered on a later date, since the document of the sale-deed of the pre-emptor was executed on a date earlier than the date of execution of the sale deed of the pre-emptor, then the pre-emptor became co-sharer from an earlier date, and in such circumstances the title would pass from the date of the execution. ( 4 ) MR. Dutta in support of this Rule has, however, submitted that it is true that if a deed is executed on a particular date, but it is registered at a later date, the title will pass from the date of the execution of the document if it is validly registered within the prescribed time. Mr. ( 4 ) MR. Dutta in support of this Rule has, however, submitted that it is true that if a deed is executed on a particular date, but it is registered at a later date, the title will pass from the date of the execution of the document if it is validly registered within the prescribed time. Mr. Dutta has, however, contended that so long the registration is not completed, the title to the immovable property does not pass and as such, on the day when the pre-emptee purchased the share in the disputed property, the pre-emptor did not acquire full and complete title thereby enabling him to make a claim for pre-emption. The right of pre-emption will only accrue when the title fully passes on registration of the documents of sale. In support of that contention, Mr. Dutta has relied on a decision of this Court in the case of Gosto Behari Das vs. Rajabala Dei and anr. , reported in 60 C. W. N. 57. The Division Bench has held that -"the date of accrual of the right of pre-emption is not the date of execution of the deed of sale or any earlier date but the date when the deed of sale is registered and title effectively passes. " ( 5 ) MR. Dutta has also referred to another Bench decision of this Court made in the case of Satish Chandra Kulia vs. Kalipada Maity and ors. , reported in 1977 (2) C. L. J. page 480 = 82 C. W. N. 184. Relying on the Bench decision made in the case of Gosto Behari Das it was also held in the case of Satish Chandra Kulia's case that the right of pre-emption will run from the date of execution of the said deed, because the date of registration is the date of accrual of the right of pre-emption. ( 6 ) IT appears to me that there is substance in the contention of Mr. Dutta. As the pre-emptor did not acquire the right to maintain an application for pre-emption on the date when the title effectively passed to the pre-emptee, the application for pre-emption was not maintainable in the facts of the case. ( 7 ) IN the aforesaid circumstances, the judgment passed by the Courts below are set aside and the application for pre-emption is dismissed. ( 7 ) IN the aforesaid circumstances, the judgment passed by the Courts below are set aside and the application for pre-emption is dismissed. ( 8 ) THERE will, however, be no order as to costs. Application allowed.