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2000 DIGILAW 123 (CAL)

Samsul Haque v. Hossain Ali Mondal

2000-03-10

RANJAN KUMAR MAZUMDAR

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JUDGMENT 1. The instant application under Article 227 of the Constitution of India is directed against Order No. 23 dated 31.5.99 passed by learned Civil Judge (Junior Division), 2nd Court, Hooghly in P. Misc. Case No. 42 of 1996. 2. The case of the petitioners was in brief that they filed an application under Section 8 of the West Bengal Land Reforms Act against the opposite parties before the learned Court below praying inter alia for an order of pre-emption in respect of the property mentioned in Schedule 'B' to the said petition stating that the land being plot No. 1223 appertaining to R.S. Khatian No. 203 of Mouza Sibrai, Pandua, Hooghly belonged to Proforma Opposite Party Nos. 3 to 6 and that the petitioners were the adjoining the land holders. But, unfortunately, the land being Plot No. 1223 was sold by Proforma Opposite Party Nos. 3, 4, 5 and 6 to Opposite Party Nos. 1 and 2 by a deed of sale dated 7.2.96. According to the petitioners, the said 'B' Schedule property ought to have been sold to them being adjoining land holders. Accordingly, the petitioners filed a petition for pre-emption of the said plot of land in their favour before the learned Court below as per provisions of Section 8 of the West Bengal Land Reforms Act, 1955. The said case of the petitioner was, however, dismissed by learned Court below vide order dated 31.5.99 on the ground that such a prayer was not maintainable as the deed was not a registered one. Hence, the present petition. 3. I have had the opportunity of hearing learned Counsels for both the parties at length in the matter. The only question requiring consideration in this hearing was whether the order passed by the learned Court below on 31.5.99 in P. Misc. Case No. 42 of 1996 was lawful or not. 4. At the time of hearing, learned Counsel for the petitioners vehemently submitted that his clients were the adjoining land holders and accordingly the 'B' Schedule property ought to have been sold by its owners being Proforma Opposite Party Nos. 3, 4, 5 and 6 to them and not to Opposite Party Nos. 1 and 2. 4. At the time of hearing, learned Counsel for the petitioners vehemently submitted that his clients were the adjoining land holders and accordingly the 'B' Schedule property ought to have been sold by its owners being Proforma Opposite Party Nos. 3, 4, 5 and 6 to them and not to Opposite Party Nos. 1 and 2. In that connection, it was submitted by him that the approach of the learned Court below in the matter was totally wrong inasmuch as the learned Court below rejected the prayer for pre-emption only on the solitary ground that the deed of sale in respect of 'B' Schedule property was not a registered one. 5. In that connection, he contended that the learned Court below failed to consider the subsequent events that the deed of sale in respect of the 'B' Schedule property as executed by Proforma Opposite Party Nos. 3, 4, 5 and 6 in favour of constesting Opposite Party Nos. 1 and 2 was duly presented for registration before the Sub-Registrar having jurisdiction in the matter and that the stamp duty payable on such a document was also assessed by the Sub-Registrar and that it was found by the Sub-Registrar that the value of the property as sold was more than the amount which was actually paid, and hence more stamp duty was payable on such deed. But, unfortunately, in a bid to foil the attempt of the petitioners to pre-emption, the 'B' Schedule property, their rivals were deliberately delaying the payment of the balance stamp duty as assessed by the Sub-Registrar on the enhanced value of the property. According to him, learned Court below failed to consider such subsequent events and dismissed the petition of his clients for pre-emption in a slipshod manner. In other words, according to learned Counsel for the petitioners, the learned Court below acted illegally by way of deciding the case of his clients on maintainability point without recording any evident whatsoever, and without considering the subsequent events. 6. On the other hand, learned Counsel for the contesting Opposite Party Nos. 1 and 2 submitted that the order passed by the learned Court below was totally lawful and correct as the deed of sale executed by Proforma Opposite Party Nos. 3, 4, 5 and 6 in favour of contesting Opposite Party Nos. 1 and 2 was not registered under the provisions of the Registration Act. 7. 1 and 2 submitted that the order passed by the learned Court below was totally lawful and correct as the deed of sale executed by Proforma Opposite Party Nos. 3, 4, 5 and 6 in favour of contesting Opposite Party Nos. 1 and 2 was not registered under the provisions of the Registration Act. 7. It is true that in a case involving the question of pre-emption, the basic question as to when a transfer was made complete, the material date is the date of completion of registration of the deed of transfer and not the date of the execution of the deed of transfer. The period of limitation prescribed by Section 8(1) of the West Bengal Land Reforms Act, 1955 starts running from the date of completion of registration of the deed of transfer. In the instant case, it has been averred by the petitioners that the deed of sale was executed on 7.2.96 by Proforma Opposite Party Nos. 3, 4, 5 and 6 in favour of main Opposite Party Nos. 1 and 2. It is also the contention of the petitioners that the deed in question was presented for registration by the parties before the concerned Sub-Registrar and that the value of the transferred property was assessed to be higher than that claimed by the parties and that accordingly enhanced stamp duty was demanded by the Registering Authority but it was actually not paid. The relevant dates in respect of all these subsequent events are nor available on record as the learned Court below failed to record evidence of both the parties at the time of hearing the Misc. case. The glaring fact also remains that the learned Court below failed to consider the principles underlying Order 7 Rule 7 of the Code of Civil Procedure. It is really shocking that the learned Court below disposed of the instant pre-emption case on a solitary preliminary question touching registration of the deed of transfer. In my view, since the right of pre-emption is a right conferred by the statute, the learned Court below ought not to have disposed of the pre-emption Misc. case in a slipshod manner by way of deciding the case on maintainability ground alone. In my view, since the right of pre-emption is a right conferred by the statute, the learned Court below ought not to have disposed of the pre-emption Misc. case in a slipshod manner by way of deciding the case on maintainability ground alone. In a case like this, the learned Court below also ought to have recorded the evidence of both the parties and should have also considered the subsequent events by invoking the provisions contained in Order 7 Rule 7 of the Code of Civil Procedure. 8. In the aforesaid facts and circumstances of the case, I am of the view that the order passed by the learned Court below on 31.5.99 in P. Misc. Case No. 42 of 1996 must be set aside and that the Misc. Case should be heard on merits after giving all the parties an opportunity of being heard. The impugned order dated 31.5.99 is, therefore, set aside. In the premises, the case in hand is remanded to the learned Court below with the direction that it will dispose of the pre-emption case on merits and in open mind after recording necessary evidence and hearing all sides and having due regard to the principles underlying Order 7 Rule 7 C.P.C. concerning subsequent events. The case is, thus, disposed of. There will be no order as to costs.