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1995 DIGILAW 114 (CAL)

Saroj Kumar Jana v. Satyanarayan Jana

1995-04-18

Basudeva Panigrahi

body1995
JUDGMENT Basudeva Panigrahi, J.: The unsuccessful respondent/opposite party in Misc. Appeal No. 138 of 91, in the 4th Court of Additional District Judge, Midnapore being aggrieved by the Judgment and Order dated 18.2.93 has preferred this revisional application. 2. Respondent/opposite party filed an application under s. 8 of the West Bengal Land Reforms Act, claiming pre-emption of the disputed properties under s. 8 of the West Bengal Land Reforms Act. It is averred in the application that Judhisthir Jana and Manik Ch. Jana who was the erstwhile owners of plot No. 2003 in Khatian 271 Mouza Uttardaudpur sold the land under the strength of a registered sale deed on 16.6.83 to the revision petition. Opposite party claiming contiguous owner to the disputed plot No. 2003 filed an application claiming preemption right. It is stated in the application that he is the owner of -plots 2002, 2004 and 2011 which are in the same vicinity. The opposite party had no knowledge of such sale deed executed in favour of revision petitioner. Immediately after he had came to know about the transaction obtaining the certified copy of the deed on 17th March, 1986, filed an application for pre-emption on the ground of vicinage. 3. The revision petitioner in his objection disputed the fact of the opposite party, inter alia, stated that the application was barred by limitation. Kanailal Jana, the father of the opposite party was the Bargadar of the disputed plot who purchased the land in the name of the petitioner and that therefore the pre-emption case is not maintainable. 4. Learned Munsif, on a serious cogitation of the matter held the application to have been barred by limitation and also noticed that the opposite party cannot maintain the application claiming pre-emption right, since the same was sold to Bargadar family. Being affected by order of dismissal recorded against the opposite party/respondent he preferred an appeal before the District Judge, Midnapore which was eventually transferred to the 4th Court of Additional District Judge, Midnapore who inter alia having disagreed with the observation of the learned Trial Court set aside the findings and remanded it to the Trial Court with direction to hear the present pre-emption case afresh in the light observation made by the appellate Court. It has been further held that the application filed under s. 5 of the Limitation Act for condoning the delay in filing the pre-emption case should be allowed. The revision petitioner being critical about the findings has approached this Court by invoking the jurisdiction under s. 115 CPC. 4a. Mr. Ashoke Sengupta, the learned counsel appearing for the revision petitioner, has taken a serious stand that the petitioner who is the purchaser of the disputed land belonged to the erstwhile Bargadar family. The revision petitioner being a Bargadar gets precedence over the claim of others. He further took an inexorable plea that the learned appellate court has committed serious illegality in stretching the application of provision of s. 5 of the Limitation Act. It is argued that the application being filed under a special statute, unless such the legislature authorises the Court to apply the provision of s. 5 of the Limitation Act the Court should have invoked its power and condone delay. It is further highlighted that the provision, of Benami Transaction (Prohibition) Act has hardly any application to this case. Thus, the appellate court without seriously considering the petitioner's case hastily arrived at the conclusion that the delay should be condoned by applying s. 5 of the Limitation Act. 5. Mr. Asit Roy, the learned counsel appearing for the respondent/opposite party has however, supported the judgment of the appellant court and contended that this court while exercising revisional jurisdiction should be wary and circumspect while disturbing the finding of the appellate court. This Court cannot exercise its revisional jurisdiction regardless of any situation, there has been no palpable illegality I or irregularity in the impugned order. This court, should seldom interfere with it. 6. This Court cannot exercise its revisional jurisdiction regardless of any situation, there has been no palpable illegality I or irregularity in the impugned order. This court, should seldom interfere with it. 6. While examining the rival contention of the parties it is better to quote s. 8 of the West Bengal Land Reforms Act :– “Section 8, Right of purchase by co-sharer or contiguous tenant: (1) If a portion or share of a holding of a raiyat is transferred to any person other than a co-sharer in the holding (the bargadar in the holding may, within three months of the date of such transfer, or) any co-sharer raiyat of the holding may, within three months of the service of the notice given under sub-so (5) of S. 5, or any raiyat possessing land adjoining such holding, may, within four months of the date of such transfer, apply to the (Munsif having territorial jurisdiction) for transfer of the said portion of share of the holding to him..........” 7. By reading the provisions, it appears that bargadar has a right of claiming pre-emption within three months from the date of such transfer, in case of a raiyat possessing adjoining land, within four months from the date of such transfer. Therefore, it is' significant to note that the statute does not authorise a person claiming pre-emption right on the ground of vicinage to apply within four months from the date of knowledge. What all the statute prescribes is that a raiyat claiming land on the ground of vicinage should file an application within four months from the date of such transfer. (Italics supplied by me). 8. It is next to be considered as to whether the provision of s. 5 of the Limitation Act shall attract to an application filed under S. 8 of the West Bengal Land Reforms Act. In a recent decision reported in 1994(1) CLJ page 106, in the case of Minor Subir Ranjan Mandal vs. Sitanath Mukherjee & Ors., this court after considering umpteen of decisions held in the following manner :- “Held: Section 29(2) of the Limitation Act, no doubt, indicates that s.5 of the Limitation Act shall apply to a special or local law like West Bengal Land Reforms Act if the operation of s. 5 of the Limitation has not been “expressly excluded” to S. 8 of the Act. (Para 33) However the legislature, whenever it thought fit and proper applied s. 5 of the Limitation Act to the relevant provisions of the Land Reforms Act and in the case of S. 8 of the Act, the legislature thought it fit and proper not to make an express reference applying s. 5 of the Limitation Act to an application under s. 8 of the Act and also omitted intentionally its application to s. 8 of the Act. (Para 36) In view of the interpretations given by the Supreme Court in Hukumdev Narain Yadav's case [reported in 1974 (2) SCC 133 ] off the words "expressly excluded" as made in s. 29(2) of the Limitation Act. Section 5 of the Act does not apply to an “application” under S. 8 of the Land Reforms Act as the operation of s; 5 has been "expressly excluded" by necessary implication. (Para 37) The principles laid down in a case under Article 137 of the Limitation Act cannot be applied for the purpose of holding that an application under s. 5 of the Limitation Act is applicable to a particular special or local law only because Article 137 of the Limitation Act has been made applicable to any. act. (Para 40) In case of an adjoining owner, 'an application for pre-emption under s. 8 of the Act cannot be filed beyond four months from the date of transfer by invoking Article 137 of the Limitation Act. Article 137 of the Limitation Act can be applied to an application under s. 8 of the Act only in cases of non-notified co-sharers who were not served with notice under s. 5(5) of the Act. When a pre-emptor has been served with a notice under s. 5(5) of the Act or has filed an application for pre-emption as an adjoining owner, the application for pre-emption cannot be said to have been filed in time by invoking Article 137 of the Limitation Act after period of Limitation prescribed in s. 8 itself expires. When a pre-emptor has been served with a notice under s. 5(5) of the Act or has filed an application for pre-emption as an adjoining owner, the application for pre-emption cannot be said to have been filed in time by invoking Article 137 of the Limitation Act after period of Limitation prescribed in s. 8 itself expires. (Para 41) An application under s. 8 of the Act, is in the nature of a plaint filed in a suit and therefore would not come within the ambit of s. 5 of the Limitation Act as s. 5 of the Limitation Act omits its application in a suit or in other words an application under s. 8 of the Act must be deemed to be a plaint filed in a suit. (Para 62) Therefore s. 5 of the Limitation Act cannot be applied in a proceeding or to an application under s. 8 of the Act as s. 5 itself omits its application in suits. Accordingly, it is decided that s. 5 of the Limitation Act has no manner of application to s. 8 of the Act.” (para 82) 9. The learned counsel for the opposite party has however, relied on an another Single Bench decision reported in AIR 1982 Cal p. 6 in the case of Chandra Sekhar Sarkar vs. Baidyanath Ghosh & Ors. The observation made therein supports the case of the opposite party. 10. The learned counsel further cited another Single Bench decision reported in AIR 1978 Cal p. 262 in the case of Dhurati Mohan Dos vs. Balai Chandra Das & Ors. But the aforementioned decision is clearly contradistinguished from the facts of the present case. Therefore, I find it very little application to this case. 11. The learned counsel further urged that the lower appellate court relying on a Supreme Court decision held that the Benami Transaction Prohibition Ad has retrospective operation. But the later view of the Supreme Court clearly lays down in the case 1995 SCC(2) page 665 that the provisions of the Act is perspective in nature. On careful reading of the appellate court's finding I noticed that these aspects had neither been placed before the appellate court nor any discussion had been made thereon. 12. But the later view of the Supreme Court clearly lays down in the case 1995 SCC(2) page 665 that the provisions of the Act is perspective in nature. On careful reading of the appellate court's finding I noticed that these aspects had neither been placed before the appellate court nor any discussion had been made thereon. 12. The learned counsel appearing for the parties have however, suggested that instead of making any observation in this case, in the light of the decision cited above, it should be left to the - appellate court to consider the matter afresh and arrive at independent findings. I must make it clear the observations made above should not weigh with the court in either way and he is free to take his own view. Considering the position of law cited above in the result the order of remand passed by the appellate court dated 18.2.93 is hereby set aside with a direction to hear out the same afresh by giving proper opportunity to both parties. 13. The revision is accordingly allowed but in the circumstances without costs. Application allowed.