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2015 DIGILAW 343 (CAL)

Chand Mahammad v. Abdus Sattar

2015-04-10

ARIJIT BANERJEE

body2015
Judgment :- Arijit Banerjee, J. 1. In this revisional application the petitioner challenges the judgment and order dated 30th May, 2013 passed by the Ld. Additional District and Sessions Judge, 5th Court at Malda in Misc. Appeal No. 36 of 2012 reversing the judgment and order dated 20th June, 2012 passed by the Ld. Civil Judge (Junior Division), 1st Court at Malda in Misc. Case No. 63 of 2008. The brief facts are as follows. 2. The property in question originally belonged to one Jiyaruddin Sk. He died sometime in 1982-83 leaving his three sons namely Md. Ali, Kurban Ali and Chand Md. as his legal heirs who came into joint possession of the said property. Kurban Ali died leaving his two sons namely Harun and Sahidul as his legal heirs who inherited his 1/3rd share in the said property. 3. By a registered deed of partition dated 5th February, 1993, the sons and grandsons of Jiyaruddin, the original owner, partitioned the entire property. The petitioner got ‘Ga’ schedule property, the sons of Kurban Ali namely Harun and Sahidul received the ‘Kha’ schedule property and Md. Ali received the ‘Ka’ schedule property by virtue of the said partition deed. Thereafter, Harun and Sahidul amicably partitioned the ‘Kha’ schedule property and Sahidul became the owner of the suit property. 4. Sahidul transferred the suit property in favour of the opposite parties by executing a registered deed of sale dated 19th August, 2008 for a consideration of Rs. 1,86,912/-. The petitioner is a contiguous land owner owning land adjacent to the southern and eastern side of the suit property. The petitioner filed an application under Section 8 of the West Bengal Land Reforms Act being Misc. Case No. 63 of 2008 before the Ld. Civil Judge (Junior Division) 1st Court at Malda for pre-empting the said transfer. 5. During the pendency of the said Misc. Case, the transferee, Sahidul, filed a suit being OC Suit No. 343 of 2008 in the court of the Ld. Civil Judge (Senior Division) at Malda against the transferees being the opposite parties, pre-emptees herein. 6. Before the Ld. Trial Judge, the opposite parties contended that no transfer of the suit property had taken place. The impugned sale was not an out and out sale but was in substance a loan transaction. As such, they prayed for dismissal of the preemption case. The Ld. 6. Before the Ld. Trial Judge, the opposite parties contended that no transfer of the suit property had taken place. The impugned sale was not an out and out sale but was in substance a loan transaction. As such, they prayed for dismissal of the preemption case. The Ld. Trial judge held that no evidence was adduced by the opposite parties in support of the contention that there was, in fact, no sale/transfer of the suit property but that it was a loan transaction. The Ld. Judge rejected the contention of the opposite parties and allowed the petitioner’s pre-emption application by a judgment and order dated 20th June, 2012. 7. The opposite parties preferred an appeal being Misc. Appeal No. 36 of 2012 before the Ld. Additional District and Sessions Judge, 5th Court, Malda. Before the Ld. Appellate Court, the opposite parties/appellants filed an application under Order 41 Rule 27 of the Code of Civil Procedure for bringing on record by way of additional evidence a compromise decree passed in OC Suit No. 343 of 2008 which was filed by the transferor of the suit property against the transferees. Under the said compromise decree the deed of sale executed by the transferor of the suit property in favour of the transferees stood cancelled on the basis that the transaction between the transferor and the transferees was, in fact, a loan transaction and there was no intention on the part of the transferor to sale the suit property to the transferees. The transferor having repaid the loan, the deed of sale stood cancelled. The Ld. Appellate Court allowed the application under Order 41 Rule 27 of the Code of Civil Procedure and took the said compromise decree on record. 8. The Ld. Appellate Court went to hold that since the deed of sale in respect of the suit property stood cancelled in terms of the compromise decree, it cannot be said that there was transfer of the suit property and as such no right of pre-emption arose in favour of the petitioner. The Appellate Court allowed the appeal and reversed the judgment and order of the Ld. Trial Court. Being aggrieved, the petitioner/pre-emptor is before this court by way of the instant revisional application. 9. Appearing on behalf of the petitioner, Mr. Bidyut Banerjee, Ld. The Appellate Court allowed the appeal and reversed the judgment and order of the Ld. Trial Court. Being aggrieved, the petitioner/pre-emptor is before this court by way of the instant revisional application. 9. Appearing on behalf of the petitioner, Mr. Bidyut Banerjee, Ld. Senior Counsel submitted that once a registered deed of sale was executed by Sahidul in favour of the opposite parties/preemptees, the title in the suit property stood transferred to the opposite parties. This gave rise to a right of pre-emption in favour of the petitioner who is a contiguous land owner. Subsequent reconveyance of the suit property in favour of the Sahidul or cancellation of the registered deed of sale under the terms of the compromise decree would not defeat such right of pre-emption. Mr. Banerjee, referred to Section 9 (2) of the West Bengal Land Reforms Act, 1955 which is set out hereunder:- “S.9 (2) When any person acquires the right, title and interest of the transferee in (such plot of land) by succession or otherwise, the right, title and interest acquired by him shall be subject to the right conferred by sub-Section (1) of Section 8 on a (co-sharer of a raiyat in a plot of land) or a raiyat possessing (land adjoining the plot of land or bargadar).” 10. Mr. Banerjee submitted that the term ‘any person’ in Section 9 (2) of the said Act would include the original owner who acquires the suit property by succession or otherwise. The word ‘otherwise’ would include by re-conveyance or by any other means. In this connection, Mr. Banerjee relied on a decision of this Court in the case of Basanti Bala Sarkar -vs.- Ramkrishna Mondal reported in 1985 (II) CHN 232 . At paragraph 13 of the said judgment this Court held that Section 9 (2) of the 1955 Act applies to any person who acquires the interest of the transferee, irrespective of the fact whether he does so by succession or ‘otherwise’. In the absence of any limiting factor, the term ‘otherwise’ will include a co-sharer who acquires title of the transferee by re-purchase. Mr. Banerjee also relied on a decision of this Court in the case of Brajendra Nath Patra -vs.- Asis Kumar Patra reported in 1991 (I) CHN 11 . In that case the petitioner and the opposite party no. 6 were co-owners in respect of the land in question. Mr. Banerjee also relied on a decision of this Court in the case of Brajendra Nath Patra -vs.- Asis Kumar Patra reported in 1991 (I) CHN 11 . In that case the petitioner and the opposite party no. 6 were co-owners in respect of the land in question. By a sale deed dated 19th August, 1978 the opposite party no. 6 transferred his share of the land out of the plot to opposite party nos. 1 to 5 without service of any notice upon the petitioner who, after obtaining a certified copy of the deed of transfer, filed an application for pre-emption in February, 1981. The case of the opposite party nos. 1 to 6 was that the transfer in question was not an out and out sale but a loan transaction and on the date of the alleged transfer, an agreement for reconveyance was also executed by and between the parties, the loan having been repaid in January, 1981. The Ld. Trial Court allowed the pre-emption application with a finding that the deed of re-conveyance was of a date during the pendency of the preemption proceeding and as such, all subsequent transactions were subject to the right of pre-emption. The lower Appellate Court reversed the decision of the Trial Court holding that when the opposite party no. 6 had regained his title, right and possession by virtue of the deed of re-conveyance, it could not be held that the petitioner had any subsisting right of pre-emption since the right of pre-emption must subsist even up to the appellate stage of the pre-emption proceeding. Allowing the revisional application against the Ld. Lower Appellate Court’s judgment and order this court held that Section 9(2) of the West Bengal Land Reforms Act makes it explicit that when any person acquires the right, title and interest of the transferee by succession or otherwise, the right, title and interest acquired by him shall be subject to the right conferred by Section 8(1) of the said Act. The right conferred by the provisions of Section 9(2) of the Act must prevail over other rights in this regard. 11. Mr. The right conferred by the provisions of Section 9(2) of the Act must prevail over other rights in this regard. 11. Mr. Banerjee further submitted that in any event, the suit that was filed under the Bengal Money Lenders Act being OC Suit No. 343 of 2008 was a collusive suit filed by way of an afterthought and subterfuge, only to try and defeat the petitioner’s right of preemption. 12. Appearing on behalf of the opposite parties, Mr. Bhattacharyya, Ld. Counsel placed before this court the application Under Section 8 of the West Bengal Land Reforms Act as also the written objection filed thereto. He also placed the plaint in OC Suit No. 343 of 2008 and the compromise decree. He submitted that by reason of the compromise decree it must be held, and the Lower Appellate Court rightly held, that no right, title and interest in the suit property passed to the transferees. Since there was no transfer, no right of pre-emption arose in favour of the petitioner. He prayed that the revisional application should be dismissed as being wholly meritless. 13. I have considered the rival contentions of the parties. There is no dispute that a registered sale deed was executed by Sahidul in favour of the opposite parties in respect of the suit property. By reason of execution of such sale deed, the suit property stood transferred to the opposite parties. This immediately gave rise to a right of pre-emption in favour of the petitioner who admittedly is a contiguous land owner. It appears that subsequently Sahidul filed a suit under Section 36 of the Bengal Money Lenders Act against the transferees and in the said suit the parties entered into a compromise to the effect that the transaction between Sahidul and the transferees was a loan transaction and such loan having been repaid the deed of sale stands cancelled. On the basis of such compromise the Court below in seisin of the suit passed a decree. Such decree was passed subsequent to the institution of the pre-emption application of the petitioner. The effect of the decree would at best be that the right, title and interest in the suit property stood re-conveyed to Sahidul. The decree did not declare the sale deed to be void ab initio. Cancellation of the sale deed would take effect from the date of the decree. The effect of the decree would at best be that the right, title and interest in the suit property stood re-conveyed to Sahidul. The decree did not declare the sale deed to be void ab initio. Cancellation of the sale deed would take effect from the date of the decree. Such decree, in my view, could not affect the subsisting right of preemption of the petitioner in view of the provisions of Section 9 (2) of the 1955 Act as interpreted by the two decisions of this Court referred to hereinabove. In my opinion, the Ld. Lower Appellate Court erred in law in proceeding on the basis that the sale of the suit property in favour of the opposite parties was a nullity and no interest in the suit property ever passed to the opposite parties. 14. If the effect of the compromise decree passed in OC Suit No. 343 of 2008 is that the right, title and interest in the suit property reverted back to Sahidul, then the same will be subject to the petitioner’s right of pre-emption. How the petitioner will exercise such right of pre-emption is for the petitioner to decide as Sahidul is not a party to the instant proceeding. 15. In view of the aforesaid, I am of the view that the judgment and order of the Ld. Lower Appellate Court suffers from an error of law apparent on the face of it and if the same is allowed to stand, unwarranted miscarriage of justice will be caused to the petitioner. As such, this application succeeds. The Ld. Lower Appellate Court’s order is set aside and the judgment of the order of the Ld. Trial Court is restored. 16. This revisional application is accordingly disposed of.