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1988 DIGILAW 354 (CAL)

Rangalal Mondal v. Sudarsan Burman

1988-08-26

PABITRA KUMAR BANERJEE

body1988
ORDER The judgment and order dated 15.2.84 passed by the learned Addl. District Judge, Howrah in Miscellaneous Appeal nos. 226 and 227 of 1981 is under challenge in these two revisional applications heard analogously. In order to appreciate the basis of the challenge aforesaid it would be appropriate to refer to certain facts as under. 2. Plot no. 837 measuring 32 decimals appertaining to khatian no. 1834 of mouza Dhulagori in the district of Howrah originally belonged to two brothers -Panchulal Naskar and Durlav alias Dulal Chandra Naskar each having undivided 8 annas share therein. Panchulal Naskar died first leaving behind him three sons and a widow and the pre-empt or-petitioner Sudarshan Burman purchased the entire share held by Panchu in the holding from his legal heirs by a registered sale deed dated 7.5.64 (Exbt. 4 (a)). Dulal died in or about 1972 and was survived by his widow Panchubala, two sons Nemai and Adhir and three daughters Angur, Bedana and Umatara. By a registered sale deed dated 4.5.74 (vide Exbt. 4) the petitioner purchased the share of Adhir measuring 02.2/3 decimals of land in the disputed holding and the other heirs of Dulal transferred their interest in the same holding to the opposite party, Rangalal Mondal by two registered sale-deeds dated 6.5.74 & 28.5.74 respectively (vide Exbt. 1 and 1(a)). On 11.10.74 the petitioner filed two applications under s. 8(1) of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the Act) before the 5th Court of Munsif at Rowrah exercising his right of pre-emption in respect of the portions of the disputed holding transferred to the opposite party and these two applications were registered respectively as L.R. Case nos. 7 and 8 of 1974. Both the applications were contested by the opposite party Rangalal by filing written objections. 3. The learned Munsif heard the two L.R. cases analogously and by a single judgment dated 18.9.81 dismissed the applications holding inter alia that since the Estates Acquisition Act, 1953 came into force, the tenancies of Panchulal and Dulal stood separated, that the applications were barred by limitation because the pre-emptor had constructive notice of the transfers and that the disputed holding was a raiyati one held for agricultural purpose. Eventually, both the applications were dismissed on contest. This is how the learned Munsif disposed of the L.R. cases referred to above. 4. Eventually, both the applications were dismissed on contest. This is how the learned Munsif disposed of the L.R. cases referred to above. 4. On appeal the learned Additional District Judge held that the preemptor-petitioner was a co-sharer in respect of the disputed holding, that he being a non-notified co-sharer was entitled to the benefit provided under Article 137 of the Limitation Act, 1963. With regard to the nature, character and purpose of the tenancy, the learned Judge held in agreement with the learned Munsif that the holding was a raiyati one and that the tenancy was for agricultural purpose. The appeals were allowed and that is how the two Miscellaneous Appeals stood disposed of. Feeling aggrieved, the pre-emptor has come up in revision and obtained rules which have been contested by the pre-emptor. This time the table turned and the pre-emptor has figured as the petitioner and the pre-emptor as the opposite party. 5. Mr. Prabir Samanta, the learned advocate appearing for the pre-emptee-petitioner assailed the impugned judgment and order of the learned Additional District Judge on three grounds, namely, (1) that the pre-emptor-petitioner (in the L.R. cases) was not a co-sharer within the meaning of s. 8(1) of the Act, (2) that the applications before the learned Munsif were barred by limitation and (3) that the subject matter of the pre-emption proceedings was not the share of a holding of a raiyat. Mr. Haradhan Banerjee, the learned advocate for the pre-emptor-opposite party, on the other hand, supported the impugned judgment and order on the same grounds as recorded by the learned Additional District Judge while disposing of the two miscellaneous appeals. Taking the last ground first, it may be mentioned that this objection was not raised by the pre-emptee in his objections filed before the learned Munsif. So also, although there was a finding of the learned Munsif that what was transferred in favour of the pre-emptee was a portion of a holding of a raiyat, the pre-emptee was not obliged to file any cross-objection before the appellate Court. The pre-emptee should not, therefore be allowed to raise any objection to that effect for the first time before this Court of revision challenging the concurrent findings of the Courts below regarding the nature and character of the tenancy. The question raised before this Court is seemingly a question of fact simpliciter. The pre-emptee should not, therefore be allowed to raise any objection to that effect for the first time before this Court of revision challenging the concurrent findings of the Courts below regarding the nature and character of the tenancy. The question raised before this Court is seemingly a question of fact simpliciter. In a decision reported in AIR 1966 SC 153 (Pandurang Dhondi Chougule and others v. Maruti Bori Yadav and others) the Supreme Court cautioned that as a general rule the High Court cannot interfere while exercising jurisdiction under S. 115 C.P. Code to correct errors of fact, however gross they may be, or even errors of law. The learned advocate for the pre-emptee-petitioner relied upon a decision reported in 1984 (1) CLJ page 196 and argued before me that in dealing with an application for preemption, the Court is to ascertain the actual user of the disputed holding on the date of the transfer and mere entries in the record of rights would not be sufficient for the purpose. In the case just referred to the materials before the Court were not sufficient for a decision as to whether the disputed lands were really agricultural or not. As further evidence in that: regard was considered necessary their Lordships passed and order of remand. In the two cases before me both the parties led some evidence to prove the user of the disputed holding but this evidence is confined to the construction of a few mud-built huts on the disputed holding long after the impugned transfers took place. In the R.S. record of rights Exts.2 & 3 the disputed holding has been recorded as danga land. In all the three sale deeds, namely, Exts.1, 1(a) and 4 the disputed holding has been described as danga land. From the evidence adduced on behalf of the pre-emptee, it further appears that both the parties are cultivators. Under all these circumstances, it cannot be argued with any amount of cogency that the disputed holding is not a raiyati holding and that the tenancy is not for agricultural purpose. Already fourteen years have passed since the dates of the impugned transfers. It would be futile to make any attempt to ascertain the state of affairs in respect of the disputed holding prevailing at the time of the transfers in May, 1974. Another branch of argument propounded by Mr. Already fourteen years have passed since the dates of the impugned transfers. It would be futile to make any attempt to ascertain the state of affairs in respect of the disputed holding prevailing at the time of the transfers in May, 1974. Another branch of argument propounded by Mr. Banerjee is that since the amendment of W.B.L.R. Act 1981, the purpose for which land is held by a raiyat has lost all its importance and incidentally the learned advocate took me through the comparative table of the two definitions of the raiyat which are reproduced below: Old. New, Section 2(10) raiyat means a Section 2 (10) raiyat means a person person or an institution holding or an institution holding land for any land for purpose of agriculture; purpose, whatsoever: The old definition of raiyat under s. 2(10) of the Act has been substituted by West Bengal Land Reforms (Amendment) Act, 1981 (W.B. Act L of 1981) published in the Calcutta Gazette, Extraordinary, dated 24.3.1986 with retrospective effect from 7th August, 1969. The impugned transfers under the sale deeds referred to above took place in May 1974 and consequently the definition of raiyat will be governed by the definition incorporated in the amended Act of 1981. The result is that at present it is immaterial whether the land is held for agricultural purpose or n6t because the classification of land into one for agricultural and the other for non-agricultural purposes has been done away with by the Amended Act of 1981. It is not therefore necessary, nor is there any justification for el1quiring into the actual user of the disputed holding at the time when the impugned transfers were brought into existence. For reason stated above the Court holds in agreement with the finding of the Courts below that the subject matter of pre emption is a portion of a holding of a raiyat. Accordingly, ground no. 3 taken by the pre-emptee-petitioner fails and the same is decided against him. 6. Now I pass on to consider the other two grounds pressed by the learned advocate for the pre-emptee. The e two grounds are inter-linked and a decision on the one will have much impact on the other. Accordingly, ground no. 3 taken by the pre-emptee-petitioner fails and the same is decided against him. 6. Now I pass on to consider the other two grounds pressed by the learned advocate for the pre-emptee. The e two grounds are inter-linked and a decision on the one will have much impact on the other. It cannot be disputed that in order to succeed in an application for preemption under s. 8 of the Act, the claimant must establish chat all that has been transferred in favour of the pre-emptee is a portion or share of a holding of a raiyat of which he and not the transferee is a co-sharer. The pre-employs definite case as made out in the application under s. 8 of the Act is that by virtue of his purchasing the share of Adhir (Dulal's son) by a registered sale deed dated 4.5.74 he became a co-sharer in respect of the disputed holding. It may be recalled that the two sale deeds in favour of the pre-emptee were executed on 6.5.74 and 28.5.74 respectively. The pre emptor's deed, Ext-4 presented for registration on 4.5.74 was copied in the margin of the relevant Register Book in terms of section 61 of the Indian Registration Act (hereinafter referred to as the I.R. Act) on 26.6.74 Mr. Banerjee strenuously argued before me that as soon as the relevant endorsements in the registrar are effected in terms of Ss. 59, 60 and 61 of the I.R. Act, the title of the transferee relates back to the date of the execution of the deed under s. 47 of the I.R. Act. Incidentally, it may be mentioned that Ext. 4 was executed on 4.5.74 and registered on 26.6.74. Mr. Samanta, on the other hand contended that the effective date of transfer is the date on which the copies in the margin of the relevant register book are made under s. 61 of the I.R. Act and that s. 47 of the I.R. Act cannot come in aid of the pre-emptor so far as the accrual of the right of tile pre-emptor to pre-empt is concerned. After giving anxious consideration to the arguments put forth by the learned advocates on either side, my considered view is that contention put forth on behalf of the pre-emptee has much force behind it and the same should prevail. After giving anxious consideration to the arguments put forth by the learned advocates on either side, my considered view is that contention put forth on behalf of the pre-emptee has much force behind it and the same should prevail. The conclusion aforesaid is well-supported by two decisions of the Supreme Court reported in AIR 1961 SC 1747 (Ramswaran Lal and Others v. Mst. Damini Kuer and Others) and AIR 1969 SC page 244 (Hiralal Agrawal v. Ram Pada Rath Singh) respectively followed by two Single Bench judgments of this Court reported in 1977(1) CLJ 92 (Malay Kr. Bera v. Rabindranarh Bera) and 1980 (1) CLJ (1980 (1) CHN) page 395 (Kedar Nath Panchdhoyee & ors. v. Nagendra Nath Mohapatra & Ors). In Ramswaran Lal's case (supra) their Lordships' held that s. 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 decide which of two or more registered instruments in respect of the same properly 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. In Hiralal Agarwal's case the Supreme Court took the view that registration is complete only when the certificate under s. 61 of the Act are made. This decision was followed in Malay Bera's case (supra) where Chittatosh Mokherjee, J (as his Lordship then was) held, "unless the registration is completed under s. 61 of the Registration Act 1908, a transfer of a share or portion of a raiyati holding would be still incohate. The transfer becomes effective only when the registration of the document is completed under s. 61". The transfer becomes effective only when the registration of the document is completed under s. 61". Similar view was taken by Dhiresh Chandra Chakraborty, J (as his Lordship then was) in Kedar Nath's case (supra) wherein his Lordship came to a finding that when the bare question is, when a transfer becomes a valid transfer, the material dace is the date of completion of registration of the deed of transfer and not the date of execution thereof. In an earlier decision of this Court reported in AIR 1941 page 78 (Gabordhan Bar v. Gunadhar Bar) the learned Judges said that as between the transferor and the transferee, the registered document takes effect from the date of execution and if there is a competition between two documents relating to the same property, both of which are registered, the one executed earlier in the point of time will have priority, but as regards third party the point of time at which the deed is to be effective is when it is registered. It would thus be evident from the aforesaid decision that the provisions of s. 47 of the I.R. Act are attracted to all the successive sale deeds executed by the same vendor in respect of the same property. The logic behind this view seems to lie in the fact that if s. 47 would be attracted against a person who is not a party to the deed it will entail great hardship on that person, because he was absolutely no knowledge about the date of the execution of the document and the document cannot be effective against him from the date of which he has no knowledge. This is also the reason why their Lordships in Ram Saran Lal's ease (supra) held that the right of pre-emption does not accrue till the subject document is copied out in the records of the Registration Office under s. 61 of the I.R. Act. Ratio and principles emerging out of those decisions may be applied in full force to the facts of the instant cases and upon application of the same the following conclusion may be reached. The sale deed Ext. 4 executed in favour of the pre-emptor-opposite party was presented for registration on 4.5.74 and the same was copied out in the records of the Registration Office under s. 61 of the I.R. Act on 26.6.74. The sale deed Ext. 4 executed in favour of the pre-emptor-opposite party was presented for registration on 4.5.74 and the same was copied out in the records of the Registration Office under s. 61 of the I.R. Act on 26.6.74. The two deeds Exbts.1 and 1(a) standing in favour of the pre-emptee petitioner were presented for registration on 6.5.74 and 28.5.74 respectively and these were copied out in the records of the Registration Office respectively on 28.5.74 and 28.74. (?) The subject matter of pre-emption in L.R. Case no. 7 of 1974 is the property covered by the deed dated 28.5.74 and that in L.R. case no. 8 is the property transferred under deed dated 6.5.74. It therefore follows that on the principles enunciated above the preemptor's sale deed Exbt.4 was registered earlier in point of time than the pre-emptee's sale deed dated 28.5.74 and accordingly the pre-emptor, as a co-sharer tenant, became entitled to pre-empt in respect of the property covered by Exbt.-1(a). But in respect of the pre-emptee's other deed dated 6.5.74 the pre-emptor has no case to raise as to the existence of his right of pre-emption. This point is disposed of accordingly. 7. On the question of limitation, the entire argument of Mr. Banerjee was based on a premise that as the pre-emptor was not served with a notice under s. 5 of the Act, he is a non-notified co-sharer and accordingly the benefits tinder Article 137 of Limitation Act would be available to him. It was contended that as the instant applications were filed within the period of three years from the date of the transfers, the applications were well within time. In this connection, reliance was placed upon a ruling reported in 1978(1) CLJ page 451 (Ganga Dhar Bhandari v. Lal Mohan Mukherjee). The principle enunciated in the decision just referred to is a well-settled principle and it is not disputed that a non-notified co-sharer is entitled to file an application for pre emption within a period of three years from the date of transfer. Unfortunately, the fallacy of Mr. The principle enunciated in the decision just referred to is a well-settled principle and it is not disputed that a non-notified co-sharer is entitled to file an application for pre emption within a period of three years from the date of transfer. Unfortunately, the fallacy of Mr. Banerjee's argument lies in the fact that the preemptor has failed to establish that on the relevant dates he had been a co-sharer in respect of the disputed holding and consequently there was no obligation on the part of the transferee to furnish the particulars including notice as contemplated under s. 5(1) of the Act for service of the notices on the co-sharers as provided in s. 5(5) of the Act at the time of the presentation of the instrument before the Registering Officer. A person who is not a co-sharer at all at the material time cannot insist on service of notice of the transfer on him Linder s. 5(5) enabling him to exercise his right of pre-emption, It would be appropriate to mention here that under s. 5(4) of the Act the transfer or the transferee as the case may be is under obligation to file notices giving particulars of the transfer in the prescribed form together with the process fees prescribed for the service thereof on all the co-sharers of the said holding who are not parties to the transfer. The stage contemplated here is that the stage when the document is presented before the Registering Officer for the first time for registration and not the date on which the registration is completed under s. 61 of the I.R. Act. The distinction is subtle but real and if overlooked may lead to miscarriage of justice. It is true that the registration of the pre-emptor's document Exbt-4 was completed on 26.6.74 and that date could be relevant for the purpose of determining his right as a co-sharer. But for the purposes of service of notice under s. 5 of the Act the relevant date is the date when the document was presented for the registration. In the instant case, the two deeds were presented for registration on 6.5.74 and 28.5.74 on which dates the pre-emptee is not expected to have any knowledge about the pre-emptor's purchase of a portion of a holding on an earlier date. In the instant case, the two deeds were presented for registration on 6.5.74 and 28.5.74 on which dates the pre-emptee is not expected to have any knowledge about the pre-emptor's purchase of a portion of a holding on an earlier date. A non-notified co-sharer is one who is a co-sharer at the time of the presentation of the document for registration but who has not been served with any notice under s. 5 of the Act. Even at the risk of repetition, it may be stated that in the instant cases the pre-emptor cannot be branded as a non-notified co-sharer and consequently the benefits of Article 137 of the Limitation Act are not available to him. The period of limitation for exercising the right of pre-emption under s. 8(1) of the Act by a co-sharer is three months from the date of the transfer. As pointed out earlier, the transfer becomes operative as against a third party with effect from the date when the registration of the document is completed. The two applications under s. 8(1) of the Act were filed on 11.10.74 although the same should have been filed by 28.8.74 in one case and 28.9.74 in the other case. This being the position, the finding of the learned Additional District Judge with regard to the question of limitation is erroneous and hence the same is not sustainable in law. The applications, not having been filed within the statutory period of three months are thus clearly barred by limitation. 8. In the aforesaid view of the matters discussed, the revisional applications succeed. The impugned judgment and order of the learned Additional District Judge dated 15.2.84 is set aside. The rule is made absolute but in the circumstances of the case without cost. This judgment governs both the Civil Rules heard analogously. Rules made absolute.