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2000 DIGILAW 450 (CAL)

Gadadhar Ghosh v. Sristhidhar Ghosh

2000-09-04

SAMARENDRA NATH BHATTACHARJEE

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JUDGMENT This revisional application has been preferred against the order dated 20.6.97 passed by learned Additional District Judge, 2nd Court at Burdwan in Misc. Appeal No. 19 of 1992 affirming the order No. 157 dated 1.2.92 passed by learned Munsif, 2nd Court, Burdwan in Misc. Case No. 36 of 1976 in connection with the application under Section 8 of West Bengal Land Reforms Act. 2. The points in this revisional application are whether an application for pre-emption filed after execution of the sale deed but before the registration thereon is maintainable or not and also whether the right of pre-emption can be exercised by co-sharers by vicinage when the transfer is in respect of the entire holding and not in respect of a portion thereof. 3. The petitioner is the owner of plot No. 1083 which is adjacent to plot No. 1082. The Opposite Party No.3 is the owner of plot No 1082. He sold the plot No. 1082 in favour of O. P. Nos. 1 and 2 who were stranger purchasers and as such the petitioners bas filed an application for pre-emption before the learned Court below. The learned Munsif dismissed the petition on a finding that by the deed of sale dated 9.7.76, the O. P. No.3 has sold the entire holding and the application for pre-emption is not maintainable when the entire holding is sold. 4. In appeal, the learned Appellate Court held that application for pre-emption having been filed prior to the completion of registration is a premature one. He has also affirmed the order of learned Munsif that application for pre-emption lies only when a portion of the $hare holding is transferred but not where the entire holding is sold. Challenging this decision, the present revisional application has been filed, in application r for pre-emption was filed on 3.11.76 and the deed was executed on 9.7.76. The registration was completed in 1979. It is well-settled that the right of pre-emption accrues only on the transfer of a portion or share of holding of a raiyat and such transfer must be valid transfer within the meaning of Section 5 of West Bengal Land Reforms Act, 1955 (for short the 'Act'). The registration was completed in 1979. It is well-settled that the right of pre-emption accrues only on the transfer of a portion or share of holding of a raiyat and such transfer must be valid transfer within the meaning of Section 5 of West Bengal Land Reforms Act, 1955 (for short the 'Act'). Thus, the right of pre-emption accrues only when the registration of sale deed is completed under Section 61 of the Indian Registration Act (1) Gosto Behari Das v. Rajobala, 60 CWN 57 : AIR 1957 Cal 449 , and also (2) Krishna Chandra Paramanik v. Hari Sadhan Sahana, AIR 1981 Cal 435 . it was held in Krishna Chandra's case (supra) that the application is not liable to be dismissed and the Court can take judicial notes of the subsequent events and can grant relief to the parties on the basis of such altered circumstances and the right of pre-emption is a week right but when such right of pre-emption under Section 8(1) has been created by a statute such right cannot be frustrated only because of technicalities. The application for pre-emption shall be deemed to have been presented on the date when the registration of sale deed was completed under Section 61 of the Registration Act and the pre-emption application should be allowed if other formalities were totally complied with. But, in (3) Radha Raman Mahapatra v. Gangadhar Bera, 93 CWN 711, it has been observed that Section 3 of the West Bengal Land Reforms Act provides that the provisions of the Act would override the provisions of all other Acts and the West Bengal Land Reforms Act is consequently a complete Code, that the Act also provides in Section 5 that the transfer of the holding of a raiyat must be made by registered instrument under the Indian Registration Act and consequently provisions of Sec. 8 should be read in the light of Sections 3 and 5 thereof. In view of the Sections 3 and 5 of the Act it is clear that the relevant date for the purpose of pre-emption under Section 8 should be the date of completion of registration and consequently until and unless registration is complete under the provisions of the Indian Registration Act, the cause of action to file an application for pre-emption does 'not arise and that such provisions have the over-ridding effect. Thus, it is now a settled law that an application for pre-emption filed before the completion of registration is not maintainable and the finding of the learned Appellate Court to the said effect cannot be said to be illegal. The said finding, therefore, does not call for any interference. The next question is whether the application for pre-emption is maintainable in view of the fact that the entire plot No. 1083 has been sold by Ext.-4. The present transaction took place in 1976, long before the operation of West Bengal Land Holding Revenue Act, 1979 with effect from 14th April, 1981. By virtue of the said Act, the definition of holding had undergone a drastic change. The holding of raiyat after such amendment comprises land or lands in all the districts of West Bengal taken together, whether they bear the same jama or not. The Division Bench or this High Court in (4) Devendra Nath Karak v. Rakhal Pal reported in 90 CWN 22, has held that the pre-emption application by the applicant who holds any land contiguous tenant in a portion of the holding of the raiyat shall be even when the entire holding was sold to the stranger. But, in the instant case, the right of pre- emption was exercised in the year 1976 when the Act of 1979 was not in operation. The decision in (5) Krishnapada v. Usharani reported in 1978 CWN 779, and the decision in (6) Promod v. Nirapada reported in AIR 1980 Cal 181 , which followed the decision in Krishnapada (supra) are the authorities on the point. 5. In Promod Ranjan Banerjee's case, the Single Judge of this Court held as follows :- "Lastly, about the question of maintainability of the present application. Section 8(1) clearly shows that the right of pre-emption is available to a person, who is a contiguous tenant, if only a portion or share of a holding is transferred and not when the entire holding is transferred. The words "............ or any raiyat possessing land adjoining such holding may within four months of the date of such transfer, apply............... for transfer of the said portion or share of the holding" appearing in sub-section (1) of Section 8 of the Act have reference to the words "portion or share" appearing in the ea!lier part of that sub-section. That is also clear from the words".........apply.................. for transfer of the said portion or share of the holding" appearing in sub-section (1) of Section 8 of the Act have reference to the words "portion or share" appearing in the ea!lier part of that sub-section. That is also clear from the words".........apply.................. for transfer of the said portion or share of the holding" appearing in the later portion of that sub-section. If the interpretation put by Mr. Ghosh is to be accepted, then one shall have to import some new words into that section which are absent and the same will run counter' to the established principles of interpretation of statutes." (para 10) "Section 2(6) of the Act shows that holding means the land or lands held by a raiyat and treated as a unit for assessment of revenue. The decision arrived at in the Full Bench Case of (7) Madan Mohan v. Sishu Bala in (1972) 76 Cal WN 1058, is clear. It has been stated in that case that after 14.4.1956, a co-sharer of a holding ceased to be a co-sharer and each raiyat of a holding becomes a direct tenant under the State. So, after that date, no pre-emption can be asked for on the ground that a person is a co-sharer. It has been pointed out by the opposite party that the pre-emption was asked for regarding the plot No. 3310 having an area of .74 cents, appertaining to khatian No. 1130. That plot has been recorded in the Khatian Ext.-3 (b), in the names of Satish's group. They have 4 annas share in the entire jama. There are only three plots in that jama and they are separately possessed by the separate groups. Hence, the submissions made on behalf of the petitioner in this respect are not accepted. It is, therefore, held that the land in question constitutes a separate holding and since the entire holding was transferred, the application for pre-emption is no maintainable. Hence, this revisional application must fail." (para 10) That being the position of law, the learned Court below rightly held that the application for pre-emption was not maintainable. The order impugned, therefore, does not call for any interference. The application is, therefore, dismissed without any order as costs.