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2000 DIGILAW 29 (CAL)

Pranati Biswas v. Mantu Kumar Lal

2000-01-17

TARUN CHATTERJEE

body2000
JUDGMENT This application under Article 227 of the Constitution is directed against the judgment and order dated 27th February, 1998 passed by Sri P. N. Sen, Additional District Judge, 1st Court at Bankura in Civil Revision Case No. 19 of 1998 allowing a revisional application of the opposite party filed under Section 115A of the Code of Civil Procedure, whereby the judgment and order of the trial Court was set aside and the application for pre-emption was rejected. The pre-emptor is the petitioner before me He had filed the aforesaid application under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter called as "the Act") on the ground that he was a contiguous owner of the property in question and, therefore, entitled to pre-empt the sale effected in respect of the property in question. He also claimed preemption of the property in question as a longest boundary holder. 2. This application under Section 8 of the Act was contested by the pre-emptee/opposite party in which he contended that as the registration of the sale deed was not completed the petitioner had no locus standi to file the application for pre-emption under Section 8 of the Act. During the pendency of the application under Section 8 of the Act, the petitioner filed an application praying for stay of the pre-emption application till the completion of registration of the sale deed in question. The opposite party was, however, contesting the said application by contending that the application for pre-emption must be dismissed as it was premature on the date of filing of the application. The pre-emptee/opposite party also filed a separate application praying for rejection of the pre-emption application on the aforesaid ground. 3. The trial Court heard both the interlocutory applications filed by the parties and by an order dated 17th February, 1998 rejected the application of the opposite. party for rejection of the application for pre-emption on the ground of immaturity on the date of filing the application for pre-emption and allowed the application of the petitioner for stay of the pre-emption application till completion of registration of the sale deed by holding that if an order of stay was granted, neither of the parties would be prejudiced. Challenging this order, the preemptee/opposite party moved a civil revision case being Civil Revision Case No. 19 of 1998. Challenging this order, the preemptee/opposite party moved a civil revision case being Civil Revision Case No. 19 of 1998. By the judgment and order dated 27th February, 1998, the revisional Court allowed the revisional application and reversed the order of the trial Court and rejected the application for pre-emption on the ground that the application for pre-emption was premature on the date of filing the pre-emption application. The revisional Court, while setting aside the judgment and order of the trial Court held that there was no occasion for the trial Court to pass an order of stay of the pre-emption application till completion of the registration of the sale deed in question as the pre-emptor/petitioner on the date of filing the pre-emption application had no right to file the application for pre-emption as the registration of the sale deed in question was not completed. Feeling aggrieved by this order of the revisional Court, the present petition under Article 227 of the Constitution has been moved at the instance of the pre-emptor/petitioner. 4. From the facts as stated above, it is, therefore, clear that only question that needs to be decided in this application under Article 227 of the Constitution is whether the pre-emption application can still be held to be maintainable in law as the registration of the sale deed has not yet been completed and whether the application for pre-emption can be stayed till the completion of the registration of the sale deed in question, 5. Before I proceed further, I must narrate certain admitted facts which would be required for proper disposal of the question at issue. The sale deed was entered in a book for registration on 16th December, 1990. The present application has been filed by the pre-emptor/petitioner in the year 1994. Let me now, therefore, consider whether the application for pre-emption can be rejected straightaway on the ground that as the registration of the sale deed in question has not yet been completed as has been done by the revisional Court, no cause of action has arisen to file such application for pre-emption. Let me now, therefore, consider whether the application for pre-emption can be rejected straightaway on the ground that as the registration of the sale deed in question has not yet been completed as has been done by the revisional Court, no cause of action has arisen to file such application for pre-emption. Dr, Mondal, challenging the order of the revisional Court, contended that the question of rejecting the pre-emption application on the above ground at the initial stage could not arise only on the ground that on the date of filing of the said application the application could not have been filed by the pre-emptor/ petitioner as the registration of the sale was not completed on that date. Dr. Mondal further contended that it was open to the Court to hold that the application for pre-emption was entertainable in law, if during the pendency of the application, registration of the sale deed in question was completed. In support of this contention, Dr. Mondal relied on a decision of this Court in the case of (1) Krishna Chandra Pramanick & Ors. v. Harisodhan Sahana. AIR 1981 Calcutta 435. 6. Mr. Mitra, appearing on behalf or the pre-emptee/opposite party however, contested the submission of Dr. Mondal and contended that since the application on the date of filing of the same was admittedly premature, the Court had no jurisdiction or authority to entertain such an application. In support of this submission, Mr. Mitra relied on three decisions, two of which are Supreme Court decisions viz., (2) AIR 1969 Supreme Court 244, Hiralal Agarwal v. R. Singh; (3) AIR 1961 Supreme Court 1747, Ram Saran v. Domini Kuer, and one of this Court in the case of (4) Moloy Kr. Bera v. Rabindranath Bera, 1977 (1) Calcutta Law Journal 92. I am unable to accept the submission of Mr. Mitra. So far as the decision of the Supreme Court in the case of Ram Saran v. Domini Kuer, AIR 1961 SC 1747 , is concerned, in my view, it cannot be applied in the present case. In the said decision of the Supreme Court, the question before it was when a sale would be considered to be complete in view of Section 61 of the Registration Act. In the said decision of the Supreme Court, the question before it was when a sale would be considered to be complete in view of Section 61 of the Registration Act. The Supreme Court held in that decision that the registration under the Registration Act is not complete till the document to be registered has been copied out in the records of the Registration Office as provided in Section 61 of the Registration Act and Section 47 of the Registration Act 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. No one has disputed this position in law and it also cannot be disputed. The question is whether an application for pre-emption can be thrown out merely on the technicality that on the date of filing the application for pre-emption, the registration of the sale deed was not completed. 7. So far as the decision of the Supreme Court in the case of Hiralal Agarwal v. R. Singh, AIR 1969 SC 244 , is concerned, it is also in my view, not applicable in the present case. In that decision, it has been also held that right of re-conveyance under Section 16 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act accrued only when registration of sale deed was completed as required by Sections 60 and 61 of the Registration Act and not before. So far as the decision of this Court in the case of Moloy Kr. Bera v. Rabindranath Bera, 1977 (1) Calcutta Law Journal 92, is concerned, it also deals with a question that question of accrual of right of preemption would arise only when the sale is registered under Section 61 of the Registration Act. At the risk of repetition, I may say that the aforesaid two decisions one of the Supreme Court as well as of this Court practically dealt with the question of completion of registration under Section 61 of the Registration Act and whether such application was filed within the prescribed period as prescribed in the relevant statute and the starting point of limitation would be the date when the registration is completed under Section 61 of the Registration Act. There is no iota of doubt that the right to pre-empt would accrue to a pre-emptor only after the completion of the registration of the sale deed in question under Section 61 of the Registration Act. If a pre-emptor files an application before registration is completed, can his application for pre-emption be thrown out on the ground that since the right to pre-empt has not yet accrued the application for pre-emption must be rejected? Therefore, it is to be considered whether the application for pre-emption should be thrown out at initial stage on the ground that the same was filed before the registration was completed or the Court has the power to mould the relief under Order 7 Rule 7 of the Code of Civil Procedure, even though registration of the sale deed is not completed under Section 61 of the Registration Act. In my view, the decision of the Division Bench of this Court as relied on by Dr. Mondal is the answer to this question. In the case of Krishna Chandra Pramanick & Ors. v. Harisadhan Sahana, AIR 1981 Calcutta 435, a Division Bench of this Court after referring to a decision in the case of (5) Raicharan v. Biswanath, AIR 1915 Calcutta 103, observed as follows :- "However, weak the right may be, it is a right conferred by the statute and is not meant to be frustrated on unsubstantial technicalities. In cases like the present one, if the claim of the pre-emptor is not otherwise barred on the date of its maturity pending the proceeding, by throwing out the application merely Oil the ground that such a right was not matured on the date of commencement of the proceeding, the Court would only' encourage a fresh proceeding and lengthen the litigation. No other useful purpose would be served thereby. No other useful purpose would be served thereby. This precisely should be avoided as pointed out by Sir Ashutosh Mookerji, in the case of Raicharan v. Biswanath, AIR 1915 Calcutta 103." (Emphasis added) Following the aforesaid principles laid down by the Division Bench of this Court, I am, therefore, of the view that the application for preemption can be proceeded with and parties should be allowed to lead evidence on merits and at the final hearing of the proceeding, if it is found that the registration of the deed is yet to be completed only at that stage, the application for pre-emption can be rejected by the Court. The pre-emptee cannot be prejudiced by this order in view of the fact that on the completion of registration of the deed in question, the pre-emptor can make a fresh application for pre-emption under Section 8 of the Act. That being the position, the order of the Appellate Court rejecting the application for pre-emption at this stage was not in accordance with law. Accordingly, the order of the Appellate Court is set aside and the application for pre-emption shall proceed and the parties would be allowed to lead evidence on all points and at the time of final disposal of the application for pre-emption if it is found that the registration of the sale deed still remains to be completed only then the question of rejecting the application for pre-emption shall arise. For the reasons aforesaid, the impugned order is set aside. This application under Article 227 of the Constitution is allowed to the extent indicated above. There will be no order as to costs.