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2009 DIGILAW 749 (CAL)

Adhir Kumar Guchait v. Maya Rani Majhi

2009-09-16

TAPAN MUKHERJEE

body2009
Judgment Tapan Mukherjee, J. This revisional application is directed against the order passed by the learned Additional District Judge Alipore in Misc. Appeal No. 294 of 1992 reversing the impugned order dated 6.6.1992 passed by the learned Munsif, Alipore in Misc. Case No. 70 of 1987 allowing the petition for pre-emption under section 8 of the West Bengal Land Reforms Act, 1955 on the ground of vicinage. 2. It has been contended by the learned Counsel for the petitioner that the petitioner is the adjoining land owner of the disputed property which was transferred to O.P. No.1 by O.P. No.2 by virtue of the registered deed of sale dated 28th April, 1986. Though the said property was purchased by O.P. No.1 on 28th April, 1986, the said fact, was not brought to the notice of petitioner pre-emptor by or exercising fraud and on 24th June, 1987 the O.P. No.1 for the first time came to the case land and she was digging earth on the case land with a view of raising the same to high land an being questioned by the petitioner the O.P. No.1 for the first time disclosed to the petitioner that she had purchased the disputed land from O.P. No.2 by way of registered Kabala dated 28th April, 1986. After searching, the petitioner got the certified copy on 27th June, 1987 and filed the application for pre-emption under section 8 of the West Bengal Land Reforms Act, 1955 as an adjoining land owner having the largest common boundary. 3. The learned Counsel of the petitioner has further contended that for keeping the matter of transfer secret for a long time from 26.04.1986 to 24.06.1987, the possession of the disputed land was not taken by the O.P. No. 1 only to prevent the petitioner from knowing about the said transfer and from taking appropriate remedy under section 8 of the West Bengal Land Reforms Act, 1955 within the prescribed time of four months from the date of transfer. The learned Counsel of the petitioner has also contended that the Kabala was executed on 28.04.1986, the same was registered on 16.06.1986 and the registration was completed on 30.09.1986. The learned Counsel of the petitioner has also contended that the Kabala was executed on 28.04.1986, the same was registered on 16.06.1986 and the registration was completed on 30.09.1986. The learned Counsel of the petitioner has further contended that as fraud was exercised upon the petitioner by the O.P. No.1 and the fraud was discovered only on 24.06.1987 so the petitioner was entitled to the benefit of section 17 of the Limitation Act and to file the application for pre-emption within four months from the date of discovery of fraud. 4. Mr. Hiranmoy Bhattacharyya, learned Counsel of the petitioner has further contended that in view of the provisions of section 5 sub-section (5) of the West Bengal Land Reforms Act. the notice of transfer is not only to be served upon all the co-sharers of the land who are not parties to the transfer but a copy is required to be fixed on the plot of land which has been transferred. In this case, no notice of transfer was served on the disputed land in compliance with the provisions of section 5(5) of the West Bengal Land Reforms Act to conceal the matter of transfer. 5. Mr. Bhattacharyya has placed reliance upon the ruling reported in 2005(1) CHN at page 140 in support of his contention that though section 5 of the Limitation Act docs not apply to the proceedings of pre-emption, section 17 of the Limitation Act apply when there is a case of fraud. He has also placed reliance upon the ruling reported-in 2005(3) Indian Civil Cases page 317 in support of his contention that section 17 of the Limitation Act cannot be excluded in case of pre-emption proceeding. 6. The learned Counsel of the O.P. No. 1 has contended that the learned Appellate Court has rightly set aside the order of the learned Munsif allowing the petition for pre-emption under section 8 of the West Bengal Land Reforms Act, 1955. 6. The learned Counsel of the O.P. No. 1 has contended that the learned Appellate Court has rightly set aside the order of the learned Munsif allowing the petition for pre-emption under section 8 of the West Bengal Land Reforms Act, 1955. The learned Counsel of the O.P. No.1 has further contended that the petitioner was well aware of the said transfer of the disputed land and that the provisions of the Limitation Act do not apply and the petitioner is not entitled to protection either under section 5 or under section 17 of the Limitation Act as the petitioner is under legal obligation to file application for pre-emption on the ground of vicinage within four months from the date of transfer's the petitioner has not come within the statutory period as prescribed by the special Act, i.e. West Bengal Land Reforms Act, the petitioner is not entitled to get extension of the period for filing the application for pre-emption and the same is barred by limitation and learned Appellate Court has rightly rejected the said application and set aside the order of the learned Munsif and the C.O. is not maintainable. Learned Counsel for the O.P. No.1 has placed reliance upon the ruling reported in 1994 (1) CLJ page 106, 2000(1) CHN page 712 and 1999 (1) CHN page 366. 7. In the case of Minor Subir Ranjan Mondal vs. Sitanath Mukherjee reported in 1994(1) CLJ 106 , it was held that section 29(2) of the Limitation Act, no doubt, indicates that section 5 of the Limitation Act shall apply to a special or local law like West Bengal Land Reforms Act if the operation of section 5 of the Limitation Act has not been "expressly excluded" to section 8 of the Act. However, the legislature whenever it thought fit and proper applied section 5 of the Limitation Act to the relevant provisions of the Land Reforms Act and in the case of section 8 of the Act the legislature thought it fit and proper not to make an express reference applying section 5 of the Limitation Act to an application under section 8 of the Act and also omitted intentionally its application to section 8 of the Act. In view of the interpretations given by the Supreme Court in Hukumdev Narain Yadav's case, reported in 1974 (2) SCC 133 , of the words "expressly excluded" as made in section 29(2) of the Limitation Act, section 5 of the Act does not apply to an "application" under section 8 of the Land Reforms Act as the operation of section 5 has been "expressly excluded" by necessary implication. 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 section 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. In case of adjoining owner, an application for pre-emption under section 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 section 8 of the Act only in cases of non-notified co-sharers who were not served with notice under section 5(5) of the Act. When a pre-emptor has been served with a notice under section 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 held in time by invoking Article 137 of the Limitation Act after the period of Limitation prescribed in section 8 itself expires. An application under section 8 of the Act is in the nature of a plaint tiled in a suit and therefore would not come within the ambit of section 5 of the Limitation Act as section 5 of the Limitation Act omits its application in a suit or in other words an application under section 8 of the Ad must be deemed to be a plaint filed in a suit. Therefore, section 5 of the Limitation Act cannot be applied in a proceeding or to an application under section 8 of the Act as section 5 itself omits its application in a suit. Accordingly, it is decided that section 5 of the Limitation Act has no manner of application to section 8 of the Act. 8. Therefore, section 5 of the Limitation Act cannot be applied in a proceeding or to an application under section 8 of the Act as section 5 itself omits its application in a suit. Accordingly, it is decided that section 5 of the Limitation Act has no manner of application to section 8 of the Act. 8. In the case of Serish Maji vs. Nishit Kumar Dolui, reported in 1999 (1) CRN 365, the view expressed by the learned Single Judge in the case of Minor Subir Ranjan Mondal vs. Sitanath Mukherjee, reported in 1994(1) CLJ 106 , that section 5 does not apply to proceedings under section 8 of the West Bengal Land Reforms Act was accepted to be correct view. It was held by the Division Bench of this Court that even though there were no words in section 8 expressly excluding section 5 of the Limitation Act, nevertheless having regard to the fact that other sections of the West Bengal Land Reforms Act expressly referred to the application of section 5 of the Limitation Act, and taking into consideration the fact that the legislature had not included any reference to section 5 while amending section 8 and hence the operation of section 5 of the Limitation Act had been "expressly excluded" by necessary implication. It was further held in that case that the scheme of West Bengal Land Reforms Act clearly shows that the right of pre-emption must be exercised within the time specified in that section. It was also held that the fact that section 5 or its principles have been specifically incorporated in these various sections and their omission from section 8 appears to be deliberate evidencing the intention of the legislature not to grant an applicant under section 8 of the similar benefit. By this omission of section 8 it would appear that the sections of the Limitation Act have been expressly excluded within the meaning of section 29(2) of the Limitation Act. 9. A Full Bench in the case of Ranjit Kumar Dey vs. Dipti Rani Guchait & Ors. reported in 2000(1) CHN 712 , held that the Division Bench of the Hon'ble Court in the case reported in 1999 (1) CHN 365 has already decided the matter regarding application of section 5 of the Limitation Act to the proceedings under section 8 of the West Bengal Land Reforms Act. 10. reported in 2000(1) CHN 712 , held that the Division Bench of the Hon'ble Court in the case reported in 1999 (1) CHN 365 has already decided the matter regarding application of section 5 of the Limitation Act to the proceedings under section 8 of the West Bengal Land Reforms Act. 10. In the decision of Aparna Ghosh & Anr. vs. Sarupchand Roychowdhury & Ors., reported in 2005(1) CHN 140 , it has been held that it is preposterous to suggest that in the West Bengal Land Reforms Act there are indications implying that the said section 17 of the Limitation Act should be excluded from its operation in the proceedings under section 8 of the Act. It was further held that it is now well-settled that if a particular right of a person is infringed by another by taking aid of fraud, and the fact of infringement of such right is concealed from that person, in such a case so long fraud is not discovered, the delay in approaching the Court cannot stand in the way of the Court in granting appropriate relief to the person upon whom fraud has been practised. Even if section 5 of the Limitation Act does not apply to proceedings for pre-emption, the principles that fraud vitiates all transactions and nobody can take away the right of a person by practising fraud, cannot be ignored for the purpose of aiding a wrong doer. It was further held that according to section 5 of the West Bengal Land Reforms Act a duty entrusted upon the transferor of the transferee to give prior notice of such transfer to all co-sharers in the manner prescribed therein and the period of limitation for filing an application for preemption on the ground of co-sharer-ship is three months from the date of service of such notice. 11. In the case of Ratipati Bandopadhyay vs. Mrinalini Debi & Ors. reported in 2005(3) Indian Civil Cases 317, it was held that the application of section 17 of the Limitation Act cannot be excluded in case of a pre-emption proceeding. It is accepted by the learned Counsel for the petitioner-pre-emptor that the principles of section 5 of the Limitation Act do not apply to the case of preemption under section 8 of the West Bengal Land Reforms Act. The contention of Mr. It is accepted by the learned Counsel for the petitioner-pre-emptor that the principles of section 5 of the Limitation Act do not apply to the case of preemption under section 8 of the West Bengal Land Reforms Act. The contention of Mr. Bhattacharyya, learned Counsel of the petitioner is that not the section 5 of the Limitation Act but section 17 of the Limitation Act applies as• by exercising fraud the petitioner was kept out of the knowledge of the said transfer even long after expiry of the period of limitation i.e. 'four months from the date of transfer. The decision relied by the learned Counsel of the petitioner reported in 2005(1) CHN 140 relates to the application for pre-emption on the ground of co-sharer-ship. 13. In the case reported in 2005(3) Indian Civil Cases 317, this Court dealt with the application for pre-emption filed by non-notified co-sharers. 14. In view of the provisions of section 5 sub-section (5) of the West Bengal Land Reforms Act, 1955 service of notice of transfer upon all the co-sharers of the said plot of land who were not parties to the transfer is mandatory. It is also mandatory that a copy of the notice of transfer is to be served in the office of the registering office of the Court house' or the office of the Revenue Officer or to affix a copy on the plot of land. Section 5 does not contemplate service of notice upon the adjoining land owner. It is also not provided in the West Bengal Land Reforms Act that the adjoining land owner will get benefit in case of non-service and non-affixing a copy on a plot of land. If no notice is to be served upon the adjoining land-owner then question of exercising fraud upon him does not arise. 15. So, in case of pre-emption non-notified co-sharers and raiyat having land adjoining plot of land which has been transferred do not stand in the same position and the benefit available to the co-sharer raiyat cannot be claimed by the adjoining land owner or possession. 16. So, relying on. the principles laid down in the ruling reported in 2005(1) CHN 140 and 2005 (3) Indian Civil Cases 317, the petitioner cannot claim extension of the period of limitation on the ground of fraud by virtue of the provision of Article 17 of the Limitation Act. 16. So, relying on. the principles laid down in the ruling reported in 2005(1) CHN 140 and 2005 (3) Indian Civil Cases 317, the petitioner cannot claim extension of the period of limitation on the ground of fraud by virtue of the provision of Article 17 of the Limitation Act. So, the application of pre-emption not being filed by the petitioner within four months from the date of transfer is hopelessly barred by limitation and the same was liable to be dismissed and learned Appellate Court rightly set aside the order of the learned Munsif allowing the said application under section 8 of the Limitation Act. 17. This C.O. stands dismissed. 18. There will be no order as to costs. 19. Urgent xerox certified copy, if applied for, be given to the learned Advocates of the parties on usual undertaking. Revisional application dismissed.