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2015 DIGILAW 413 (CAL)

Abdur Rahman v. Sk. Abu Bakar

2015-05-08

HARISH TANDON

body2015
JUDGMENT : Harish Tandon, J. This revisional application is directed against judgment dated 18th December, 2014 passed by the learned Additional District Judge, 3rd Court, Hooghly in Preemption Miscellaneous Appeal No. 38 of 2013 affirming the judgment dated 28th February, 2013 passed by the learned Civil Judge (Junior Division), 2nd Court, Hooghly in Preemption Case No. 04 of 2008. 2. The preemptor as a co-sharer of a raiyat filed an application under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as 'said Act') seeking preemption against the petitioner herein, who purchased the share of the other co-sharers/raiyats for valuable consideration. 3. The fact emerged from the aforesaid application is that the said property was purchased jointly by the petitioner and the proforma opposite party no. 2 by virtue of sale deeds being nos. 4273 and 4274 for the year 1986 from one Mr. Tyunjoy Roy and were jointly in possession thereof. It is further alleged that the Record of Right reveals that their names are recorded to the extent of half share each under L. R. Khatian No. 756/1 and 147 respectively. 4. In paragraph 3 of the said application, it is categorically stated that the property purchased by the petitioner and the proforma opposite party no. 2, though by separate deeds, is a joint property and no partition has been effected, but the parties by amicable agreement are enjoying their respective possessions exclusively. 5. It further bone out from the said application that a suit for partition being Title Suit No. 317 of 2007 is pending before the Court of learned Civil Judge (Senior Division), 1st Court, Hooghly at Chinsurah. The proforma opposite party no. 2 sold, transferred and conveyed his share to the opposite party no. 1 herein for a consideration of Rs. 1,75,000/-, which is not in consonance with the market value and have been exaggerated to avoid the preemption under the aforesaid Act. 6. The subsequent purchaser, the opposite party no. 1, in the written statement denied the assertion of amicable arrangement, which could be culled out from paragraph 8 of the written objection. It was a simple denial without any categorical statements made in this regard. 7. 6. The subsequent purchaser, the opposite party no. 1, in the written statement denied the assertion of amicable arrangement, which could be culled out from paragraph 8 of the written objection. It was a simple denial without any categorical statements made in this regard. 7. The preemption application was considered by the Trial Court on a limited compass as to whether Section 8 of the said Act can be invoked by the cosharer/raiyat, if the entire share or portion of a plot of land is transferred by a co-sharer/raiyat to a stranger. Both the Courts concurrently held that if the entire share or the portion of the plot of land was transferred by the cosharer/raiyat, the application for preemption under Section 8 of the said Act is not maintainable. 8. Both the learned advocates representing the respective parties are in unison that the point agitated and considered by both the Courts below is restricted on the entertainability of an application under Section 8 of the said Act on the aforesaid point of law. 9. This Court had an occasion to consider the identical point in the case of Biswanath Sarkar & Anr. v. Sunit Kumar Saha, reported in (2013)3 WBLR (Cal) 271 and after noticing the language employed in Section 8 of the said Act, more particularly, the word "or" in between the words "share" and "portion" held that even if the entire share is transferred by the co-sharer/raiyat, an application under Section 8 of the said Act is maintainable at the instance of the cosharer/raiyat in these words: "19. Having considered the respective submission is, Section 8 of the West Bengal Land Reforms Act, 1955 relates to the right of preemption of a bargadar, co-sharer raiyat and the contiguous plot holder, in case a portion or share of a plot of land of a raiyat is transferred to any person, other than the co-sharer. Proviso attached to the said Section contains the order of the precedence whereas sub-section (2) provides the exception where the pre-emption cannot be claimed under the said provision. 20. The expression "portion or share of a plot of land of a raiyat" leaves no room of doubt that if the entire property is sold by the raiyat, the pre-emption cannot be claimed under Section 8 of the said Act." 10. 20. The expression "portion or share of a plot of land of a raiyat" leaves no room of doubt that if the entire property is sold by the raiyat, the pre-emption cannot be claimed under Section 8 of the said Act." 10. The aforesaid proposition is reiterated by me in another case being CO 345 of 2015 (Sk. Sajhan Ali & Ors. v. Sk. Saber Ali & Anr.), decided on 10th March, 2015, noticing the other judgments of the Co-ordinate Bench operating in the field and held that the words used in the statute are not surpluses and the Court should not add or subtract any word when bare reading of the language employed therein is unambiguous, clear, explicit and conveys the intention of the legislature. It would be apt to quote the relevant extracts from the unreported judgment, which are reproduced herein below: "In case of Kinkar Mahato (supra) though the Court in paragraph 14 thereof recorded that the right of preemption can be exercised when a portion or share of a plot of land of a raiyat is transferred to a person other than the co-sharer raiyat, but held that it is only when a co-sharer raiyat transfers a portion of a share of the plot of land, the right of preemption can be exercised. The words used in the statute are not surplusages. The Court should not add or subtract any word used in the Section as each word carries a definite object behind its incorporation. If the word 'of' is used in stead of the word 'or' it is opposed to an intendment of the legislature and shall restricts its applicability to a special class of cases which, the legislature never intended. The Apex Court in case of Sri Jayaram Educational Trust & Ors. v. A.G. Syed Mohideen & Ors., reported in (2010) 2 SCC 513 held the word 'or' has a special significance and may not necessarily be used as disjunctive but inclusive as both the eventualities are well conceived. The word 'or' in its generic term is a particle used to connect words, phrases or classes representing alternatives. The word 'or' is at times used to join terms when either one or the other or both are indicated. The word 'or' in its generic term is a particle used to connect words, phrases or classes representing alternatives. The word 'or' is at times used to join terms when either one or the other or both are indicated. It is well settled that a provision of a statute should be read, as it is in a natural manner, plain and straight without adding, substituting or omitting any words. It is only when such plain and straight reading or ascribing the natural and normal meaning to the words on such reading, leads to ambiguity, vagueness, uncertainty or absurdity which would be opposed to the legislative intendment, recourse can be make to a settled rules of construction and interpretation to ascertain the true meaning of the provision." 11. This Court, therefore, hastened to say that the application for preemption under Section 8 of the said Act is maintainable and entertain able at the instance of the co-sharer/raiyat even after the sale of the entire portion or entire share by the other co-sharers/raiyats. 12. This Court, therefore, finds that both the Courts below went wrong in dismissing the application for preemption solely on the ground that it is not maintainable. 13. However, the learned advocate for the opposite party no. 1 wanted to invite the attention of this Court on the factual matrix by drawing inspiration from the averments made in paragraph 3 of the application filed by the petitioner and sought to be contend that if the parties have amicably separated their portions by an agreement, it would be presumed that the plot of land was partitioned and, therefore, the petitioner does not retain the character of a co-sharer/raiyat. 14. There is a distinction between an arrangement made by the parties in respect of a joint property by which they enjoyed exclusive possession than the partition. Section 14 of the said Act does not recognise any other form of the partition except the one indicated in sub-section (1) thereof. It clearly provides that the partition of a plot of land amongst the co-sharers of a raiyat shall be made either by (a) registered instrument or (b) a decree or order of the Court. 15. Section 14 of the said Act does not recognise any other form of the partition except the one indicated in sub-section (1) thereof. It clearly provides that the partition of a plot of land amongst the co-sharers of a raiyat shall be made either by (a) registered instrument or (b) a decree or order of the Court. 15. Admittedly, the agreement is not produced before the Trial Court and, therefore, it cannot be reasonably inferred whether such an agreement pertains the character of the partition deed or whether the said agreement was registered before the Registering Authority. 16. Even after denying the existence of the amicable agreement in paragraph 8 of the written objection, the learned advocate for the opposite party no. 1 harps upon the averments made in paragraph 3 taking contrary stand to what was taken before the Court below. 17. It cannot be reasonably inferred that the amicable agreement was, in fact, a deed of partition and was duly registered with the Registering Authority under Section 17 of the Registration Act. 18. The other points, which the learned advocate for the opposite party took before this Court that an application under Section 8 of the said Act is not maintainable and/or entertain able unless the entire consideration money is deposited by the preemptor. 19. The aforesaid point appears to have been inspired from a judgment of the Co-ordinate Bench rendered in case of Susanta Jadav v. Rupchand Dhar, reported in 2013(2) CHN 453 . The ratio, which could be culled out from the said report is indicated in paragraph 13 thereof, providing that an application under Section 8 of the said Act cannot be rejected on the ground of any short deposit. It is profitable to quote paragraph 13, which runs thus: "In view of the aforesaid decisions such application filed under Section 8 of the West Bengal Land Reforms Act, 1955 cannot be rejected on the ground of any short deposit. The learned Civil Judge, in fact, did not dismiss the said application on the ground of short deposit but required the petitioner to pay the balance amount. This discretion of the learned Civil Judge has resulted in the present revisional application." 20. The same Hon'ble Judge delivered a subsequent judgment reported in 2013(3) CHN 140 reiterating the ration as laid down in the above noted report. 21. This discretion of the learned Civil Judge has resulted in the present revisional application." 20. The same Hon'ble Judge delivered a subsequent judgment reported in 2013(3) CHN 140 reiterating the ration as laid down in the above noted report. 21. There is no difficulty that an application under Section 8 of the said Act is maintainable even when the short deposit is made and if a dispute is raised to the actual market value being less than what is shown as consideration money in the deed, it is a duty of the Court to determine and/or ascertain the same. It does not appear that the parties took the aforesaid plea before both the Courts below as both the parties restricted their arguments on the core issue as indicated in the earlier part of my judgment and once they have abandoned such issue, which is essentially an issue of fact, it cannot be agitated before the revisional Court for the first time. 22. This Court, therefore, finds that the Trial Court acted illegally and with material irregularity in rejected an application under Section 8 of the said Act filed by the petitioner. 23. Both the orders, i.e., order of Court of Appeal below as well as the learned Munsif, are hereby set aside. The application under Section 8 of the said Act stands allowed. 24. With these observations, the revisional application is disposed of. 25. There will be no order as to costs.