Brajendra Nath Patra v. Asis Kumar Patra — 1990 DIGILAW 443 (CAL)

ORDER This application is directed against the appellate order dated the 31st July, 1936 passed by the learned Additional District Judge, 1st Court, Midnapore, in Misc. Appeal No. 83 of 1985. reversing the order dated the 13th July, 1985, passed by the learned Munsif, Danton, in J. Misc. Case No. 15 of 1981 arising out of an application under s. 8 of the West Bengal Land Reforms Act, 1955. 2. The instant application arises out of an application by the petitioner under s 8 of the West Bengal Land Reforms Act, hereinafter referred to as the said Act, for pre emption of the land which was transferred by the opposite party no. 6 in favour of the opposite party nos. 1 to 5, by a registered sale deed dated 26th November, 1980. The said application was filed in the Court of the learned Munsif, Danton, and both the transferor and the transferees were made parties therein, and the case was registered as J. Misc, case no. 15 of 1981. 3. The petitioner's case in short is that his father and the opposite party no.6 were the owners of plot no. 185 of mouza Saradabarh, in respect of 3/4th share and after the petitioner's father's death, the mother of the petitioner and the sister of the petitioner, the opposite party no. 6 and the petitioner, equally inherited the petitioners father's share in the property. Subsequently, the petitioner no. 6 and the petitioner jointly purchased the share of the mother and sister and thereby became the joint owners of the 3/4th share in the land in dispute. It is the further case of the petitioner that, thereafter the opposite party no. 6 and the petitioner also purchased the remaining 1/4th share of the disputed land from one Bhutnath Patra and others and pursuant to such sale the opposite party no. 6 and the petitioner became owners of the entire 16 Annas share in the said land, and, as such, both the petitioner and the opposite party no. 6 became co-sharers in respect of the land comprised in plot no 185, measuring 37 decimal. 4. By a sale deed dated the 19th August, 1978, the opposite party no. 6 transferred 18.1/2 decimals of land out of the aforesaid plot to the opposite party nos. 1 to 5 herein, without serving any notice upon the petitioner, who was a co-sharer in the said plot. 4. By a sale deed dated the 19th August, 1978, the opposite party no. 6 transferred 18.1/2 decimals of land out of the aforesaid plot to the opposite party nos. 1 to 5 herein, without serving any notice upon the petitioner, who was a co-sharer in the said plot. After coming to know of the said transfer, the petitioner obtained the certified copy of the sale deed and filed the abovementioned J. Misc. case on 27th February, 1981. In the said application under s.8 of the aforesaid Act the petitioner prayed for pre-emption in -respect of the sale of the said 18.1/2 decimals of land by the opposite party no. 6 in favour of the opposite party nos. 1 to 5. 5. The opposite Party nos. 1 to 5 herein appeared in the said proceedings and filed a written objection alleging that the transfer in question was not an out and out sale bat a loan transaction. Although the sale deed was executed on 19th August, 1978, on that very same date, an agreement for re-conveyance was also executed by and between the parties. The loan was re-paid on 27th January, 1981, and a deed of re-conveyance of the said property was executed by the opposite party no. 1 to 5 in favour of the opposite party no. 6. The opposite party no. 6 who was subsequently added as a party in the proceedings, also filed a written objection supporting the case made out by the opposite party nos. 1 to 5. The petitioner's application for preemption under s. 8)) of the said Act was heard by the learned Munsif, Danton and by his order dated 10.7.85, the learned Munsif was pleaded to allow the petitioner's application on contest with cost. While deciding the said application, the learned Munsif was pleased to hold that the petitioner was a co-sharer in respect of the plot in question and was, therefore, entitled to pre-empt the sale effected by the opposite party no. 6 in favour of the opposite parties nos. 1 to 5 herein. The learned Munsif also considered the case sought to be made out by the opposite parties herein that the deed executed by the opposite party no. 6 was merely a deed of security accompanied by an unregistered agreement of re-conveyance and was not an out and out sale. 6 in favour of the opposite parties nos. 1 to 5 herein. The learned Munsif also considered the case sought to be made out by the opposite parties herein that the deed executed by the opposite party no. 6 was merely a deed of security accompanied by an unregistered agreement of re-conveyance and was not an out and out sale. The learned Munsif relied on a decision of this Court, reported in 53 CWN 678, to come to the finding that in respect of a deed of sale without notice, accompanied by an agreement for re-conveyance, the right of pre-emption that arises in respect of sale will not be suspended. The learned Munsif also noted the fact that the land forming the subject matter of the pre-emption application had been re-conveyed by the opposite parties nos. 1 to 5 to the opposite party no. 6, by a deed of sale executed on 27th January, 1981, during the pendency of the pre-emption proceedings. The learned Munsif held that, as has been decided in 57 CWN 253, all subsequent transactions were subject to right of pre-emption of the central transfer. The learned Munsif allowed the petitioner's application for pre-emption. 6. The opposite party no. 6 herein preferred an appeal being Misc. Appeal no. 83 of 1985 before the learned District Judge, Midnapore, which was ultimately heard by the learned Additional District Judge, ht Court, Midnapore. By his judgment and order dated 31st July, 1986, the learned Additional District Judge, 1st Court, Midnapore, was pleased to allow the appeal on contest and set aside the order passed by the learned Munsif. The learned Court below set aside the order of the learned Munsif only on one point namely when the opposite party no. 6 had regained his right, title and interest and possession in the disputed land by virtue of the subsequent transfer made in his favour by the opposite party nos. 1 to 5 and when such subsequent transfer was not the subject matter of pre emption, it could not be held that the petitioner had any subsisting right of pre-emption over the case land. The learned Court below was of the view that the established principles of law are that the right of pre-emption must exist even at the time of hearing of the proceeding upto the appellate stage. The learned Court below was of the view that the established principles of law are that the right of pre-emption must exist even at the time of hearing of the proceeding upto the appellate stage. As indicated hereinbefore, this revisional application has been filed by the co-sharer/pre-emptor against the aforesaid decision of the learned Additional District Judge, 1st Court, Midnapore. 7. It has been urged on behalf of the petitioner that the learned District Judge, while deciding the appeal, overlooked the provisions of s. 9(2) of the West Bengal Land Reforms Act, 1955. The proposition on which the learned Additional District Judge relied do not apply to the facts and circumstances of the case in view of the said provisions of s. 9(2) of the said Act Mr. P. B. Sahu learned advocate appearing on behalf of the petitioner, strongly contended that the right of pre-emption acquired by co-sharer in terms of s 8(2) of the aforesaid Act, can not be defeated by a subsequent transfer, inasmuch as the subsequent transferee takes the property with the infirmity attached to the title of the Vendor. In this connection Mr. Sahu relied on a decision of this Court reported in 73 CWN 852, where a similar situation arose. It was held by this Court in that decision as follows : "A. The right of pre-emption given to a co-sharer tenant arises as soon as the other co-sharer sells to a stranger purchaser. B The effect of the order for pre emption is to vest in the pre-emptor from the date of that order the right, title and interest in the share of the holding accruing to the transferee from the transfer.........free from all encumbrances created after the transfer. C. A sale by the purchaser from the co-sharer tenant to another is no doubt not an encumbrance, but the latter takes the property with the infirmity attaching to the title of his vendor. D. An order for pre-emption destroys the subsequent purchaser's vendor's title from the date of the making of the order for pre-emption. His vendor's title being destroyed, his own title gets destroyed too. E. Any other view would put it in the power of a transferee from a co-sharer to defeat the statutory right of the other co-sharer to pre-empt. D. An order for pre-emption destroys the subsequent purchaser's vendor's title from the date of the making of the order for pre-emption. His vendor's title being destroyed, his own title gets destroyed too. E. Any other view would put it in the power of a transferee from a co-sharer to defeat the statutory right of the other co-sharer to pre-empt. (Indeed, how long would the preempting co-sharer chase one transferee after another with a view to protecting his lis from absence of a necessary party?). 8 He also relied on another decision reported in 1978 (1)CLJ 299 , where it had been held that the transaction in question was not a sale but only a loan. Relying on the earlier decision of this court reported in 58 CWN 1000, the Hon'ble Mr. Justice Sudhamoy Basu (as His Lordship then was pleased to observe that the agreement for re-sale creates some sort of fiduciary relationship between the parties. the benefit of which original transferor will be entitled to so long as the agreement remains in force in law and this fiduciary relationship or benefit thereof which arises simultaneously with the agreement for re-sale and, therefore, simultaneously with the transfer too is available against the transferee wit h notice and is not affected by s. 26(F)(7) of the Bengal Tenancy Act. It was held by his Lordship that the pre-emptor appellant who had instituted the pre-emption proceedings with notice of such agreement for re-sale, was bound by the same and could not resist its enforcement by reason merely of sub-so (7) of s. 26(F) of the Bengal Tenancy Act, Mr. Sahu lastly relied on a decision of this Court reported in 1985 (II) CHN 232 wherein the then Chief Justice held that provisions of s. 9(2) of the Act applies to any person who acquires the interest of the transferee, irrespective of the fact whether he does so by succession or 'otherwise'. In the absence of any limiting factor the term 'otherwise' would include a co-sharer who acquired the title of the transferee by repurchase. Mr. Sahu, therefore, submits that the learned Additional District Judge was clearly in error in passing the impugned order without taking into account the provisions of s. 912) of the aforesaid Act. On behalf of the opposite party no. Mr. Sahu, therefore, submits that the learned Additional District Judge was clearly in error in passing the impugned order without taking into account the provisions of s. 912) of the aforesaid Act. On behalf of the opposite party no. 6 it was submitted that the transaction sought to be preempted was not an out and out sale but a loan transaction. Mr. Majumdar, learned Advocate appearing on behalf of the opposite party no. 6, contended that a proceeding had been initialed b) the opposite party no. 6 under the provisions of s. 4 of the West Bengal Restoration of Alienated Land Act. 1973, on the footing that the sale which was effected was by way of distress sale and, in any event, the question whether the sale was a distress sale or not had not been finally decided by the authorities under the West Bengal Restoration of Alienated Land Act, since the land in question had been re-conveyed by the opposite party nos. 1 to 5 during the pendency of the said proceedings. Mr. Majumdar relied on a decision of this Court reported in 1987 (l) CLJ 437 in support of his contention that right to pre-empt must be alive at the time of the disputed sale, during institution or the proceedings and till the final order. He, therefore, submitted that the learned Additional District Judge had not committed any error in allowing the Misc. Appeal on the same point. 9. After considering the submissions of the respective parties, I am of the view that there is substantial force in the submissions made be Mr. Sahu on behalf of the petitioner. Section 8(1) vests a right on a co-sharer raiyat to pre-empt the transfer of any portion of the said holding in the manner and in keeping with the provisions as set out in sub-so (1) of S. 8 of the West Bengal Land Reform Act, 1955. Undoubtedly, the transaction sought to be pre-empted was a transfer by way of sale and the position is further strengthened by the fact that a deed re-conveying the property was subsequently executed by the opposite parties nos. I to 5 in favour of the opposite party no. 6 in respect of the land forming the subject matter of the said transaction. Moreover, by filling an application under S. 4 of the West Bengal Restoration of Alienated Land Act, 1973, the opposite party no. I to 5 in favour of the opposite party no. 6 in respect of the land forming the subject matter of the said transaction. Moreover, by filling an application under S. 4 of the West Bengal Restoration of Alienated Land Act, 1973, the opposite party no. 6 admitted that the transaction sought to be pre-empted was an out an out sale, albeit by way of distress. Section 4 of the said Act pre-supposes a transfer by way of sale. The contention sought to be raised on behalf of the opposite party no.6 that the transaction in question was a loan transaction was considered by the learned Munsif and was not accepted by him. Furthermore, it has been consistently held by this Court that the right to pre-emption within the meaning of s. 26(F) of the Bengal Tenancy Act, and, thereafter, under s.8(1) read with s. 9;2) of the West Bengal Land Reforms Act, 1955, would follow all subsequent transfers, and all such sub-sequent transfers would be subject to the right of pre-emption which had accrued in favour of the pre-emptor from the original transfer. Section 9(2) of the West Bengal Land Reforms Act makes it explicit that when any person acquires the right, title and interest of the transferee by succession or otherwise the right, title and interest acquired by him shall be subject to the right conferred by sub-so (I) of s.8 of the Act. The expression 'Otherwise' has been explained in the aforesaid case reported in 1985 (Il) CHN 232 in the following terms- 'In the absence of limiting factor, the term 'otherwise' will include a co-sharer who acquires the title of the transferee by re-purchase, his subsequent transferee will be in no better position'. 10. In my view, the rights conferred by the provisions of s. 9(2) must prevail over other rights in this regard and the learned Additional District Judge. 1st Court. Midnapore committed an error in overlooking the provisions of s. 9(2) of the Act and allowing the appeal on the basis of a proposition which is negatived by the provisions of s. 9(2) of the said Act. It is no doubt true that the right of pie-emption is a weak right and that in order for a pre-emptor to succeed, the right of pre-emption must subsist till the very end. It is no doubt true that the right of pie-emption is a weak right and that in order for a pre-emptor to succeed, the right of pre-emption must subsist till the very end. But the said proposition in my view, does not apply to the facts of the instant case. Such right of pre-emption must be held to subsist even after the subsequent transfers, in view of the provisions of s. 9(2) of the West Bengal Land Reforms Act, 1955. 11. Reference may also be made to the provision of S. 3 of the West Bengal Land Reforms Act, 1955. which provide that the provisions of the said Act shall have effect notwithstanding an)'thing inconsistent therewith in any custom or usage or contract conferred express or implied or decision or award of Court, tribunal or" other authority. The said provisions have an overriding effect on any right which the opposite party no. 6 may have acquired under the West Bengal Restoration of Alienated Lands Act. 1973, or otherwise. The arguments advanced on behalf of the opposite parties that the right of the petitioner to pre-empt the original sale must be held to have been rendered infrouctuous by the subsequent transfer by the opposite party nos. 1 to 5 in favour of the opposite party no. 6, must therefore fail. 12. In view of the above, this application succeeds and the impugned judgment and order is set aside. The learned Court below is directed to re-consider the matter and to re-hear the same in the light of the observations made hereinabove. The Rule is made absolute. There will be no order as to costs. Let XEROX copies of this order be handed over to the learned Advocates for the parties on their application and on their undertaking to apply for and obtain certified copy of the same. Rule made absolute; direction given for re-hearing the matter.