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2015 DIGILAW 473 (CAL)

Narendra Kumar Singh v. Gursharan Kaur

2015-06-05

HARISH TANDON

body2015
JUDGMENT : Harish Tandon, J. 1. This revisional application is directed against a judgment and order dated 22nd December, 2014 passed by the learned Judge, Special Court-cum-Additional District Judge, Durgapur in Misc. Case No. 2 of 2013 affirming the order of dismissal dated 12th December 2012 passed by the learned Civil Judge (Jr. Division), Second Court, Durgapur in Misc. Case (pre-emption) No. 8 of 2006. 2. Both the Courts below dismissed an application under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the Act) holding that the petitioner is not a co-sharer of a raiyat in a plot of land nor is a contiguous plot holder and, therefore, cannot maintain an application under the aforesaid provision. 3. Before adjudicating the points involved in this case, the undisputed facts are adumbrated herein below: 4. Admittedly, one Mera Debi owned and possessed twenty eight cents of a land comprised in plot No. 1086, R.S. Khatian No. 521, C.S. Khatian No. 212, JL No. 87 in Mouja Debipur, P.S. Kanksa, District - Burdwan, described as a A schedule property in an application for preemption. Out of the A schedule property, the said Mira Debi sold six cents of lands (A 1 Schedule) to Subhadra Debi and Chhedi Show on the basis of the deed No. 3504/1990. In turn the said Subhadra Debi and Chhedi Shaw sold five cents (B Schedule) to Narendra Kr. Singh and Debendra Kr. Singh, the petitioners herein, by virtue of a sale deed bearing No. 5607 of 1992. 5. Subsequently, the said Mira Debi sold five cents (Schedule A-2) to Subhadra Debi on the basis of deed No. 1603 of 2000. Subhadra Debi thereafter sold five cents of land comprised in plot No. 1086 to Smt. Gursharan Kaur and Smt Manjeendar Kaur, the opposite parties herein on 16.1.2006 by executing and registering the deed before the registering authority. Admittedly, the registration was completed on 7.3.2006 and an application for pre-emption under Section 8 of the said Act on the ground of vicinage came to be filed on 12.4.2006. The petitioners thereafter took out an application for amendment of the pre-emption application on 20.3.2007 which was eventually allowed vide Order No. 17 dated. 29.6.2007 subject to the payment of costs. It is undisputed that the opposite parties received the costs and the application for preemption was amended accordingly. The petitioners thereafter took out an application for amendment of the pre-emption application on 20.3.2007 which was eventually allowed vide Order No. 17 dated. 29.6.2007 subject to the payment of costs. It is undisputed that the opposite parties received the costs and the application for preemption was amended accordingly. Resultantly, the application for preemption was founded not only on the ground of vicinity but also as a co-sharer of a raiyat in a plot of land. 6. The trial Court dismissed the pre-emption application, so far as the ground of vicinity is concerned, as the plot owned by the petitioners and the plots subsequently owned by the opposite parties are demarcated by a strip of land. The plea of co-ownership was negated on the ground of limitation by the Trial Court. Though the Appellate Court did not agree with the reasons assigned by the Trial Court on the ground of limitation, but concurs with the ultimate decisions holding that the petitioners are not the co-sharers as the entire share or entire portion of a plot of land is transferred to the opposite parties and, therefore, the application for preemption is not maintainable. 7. Both the learned advocates appearing for the parties did not raise a plea of vicinage but restricted their argument on a plea of co-sharership and, therefore, this Court can proceed to decide the aforesaid plea having abandoned the plea of vicinage. 8. Mr. Bhaskar Ghosh, the learned senior advocate for the petitioners attacks the judgment of both the Courts below by saying that once an application for amendment of the original application for pre-emption is allowed without any rider as to when the said amendment shall take effect, the law enjoins that it will relate back to the date of its institution. According to him, the registration, so far as, it relates to the purchase by the opposite parties are concerned, was completed on 7.5.2006 and the application for pre-emption having filed though initially on the ground of vicinage on 12.4.2006, the plea of limitation is not available to the opposite parties. He further submitted that the amendment was allowed subject to the payment of costs and having received the same, the opposite parties acquiesced their right to challenge the order of amendment and, therefore, the plea of limitation is not available. 9. To buttress the aforesaid submissions, Mr. He further submitted that the amendment was allowed subject to the payment of costs and having received the same, the opposite parties acquiesced their right to challenge the order of amendment and, therefore, the plea of limitation is not available. 9. To buttress the aforesaid submissions, Mr. Ghosh relied upon a judgment of the Supreme Court rendered in case of Prithi Pal Singh & Another v. Amrik Singh and Others, reported in (2013) 9 SCC 576 . He audaciously submits that though Subhadra Debi sold entire land purchased by her from Mira Debi in the year 2000 to the opposite parties in the 2006 but the said land being the partition of plot No. 1086, the petitioners are the co-sharers of the said plot of land and, therefore, is entitled to maintain the pre-emption application. In other words, it is submitted that an application for pre-emption is maintainable at the instance of the co-sharer even the entire share or entire portion is transferred to a stranger and not when the share of the portion of a plot of land is transferred. 10. Mr. Chatterjee, the learned senior advocate appearing for the opposite parties submits that when the owner of a plot of a land divested his entire right in a plot of land, the right of pre-emption is not available. In support of the aforesaid contention he relied upon a judgment of this Court delivered in case of Ratipati Bandopadhyay and Another v. Mrinalini Debi and Others, reported in 2006 (4) CHN 440 . He further submits that if the owner has sold out the demarcated portion of a land to the pre-emptor and subsequently sold the remaining portion to a preemptee, the pre-emptor does not acquire any right of pre-emption as held in case of Sk. Samser Ali v. Serina Bibi, reported in 2012 (2) CHN 694 and Sri Subal Mondal v. Sri Gopal Chandra Mondal, reported in 2014 (1) CHN (Cal) 706. 11. In reply, Mr. Chatterjee submits that the plea of limitation does not evaporate even after allowing an application for amendment and acceptance of costs if the same is not a condition precedent. Samser Ali v. Serina Bibi, reported in 2012 (2) CHN 694 and Sri Subal Mondal v. Sri Gopal Chandra Mondal, reported in 2014 (1) CHN (Cal) 706. 11. In reply, Mr. Chatterjee submits that the plea of limitation does not evaporate even after allowing an application for amendment and acceptance of costs if the same is not a condition precedent. He further submits that the order by which an application for amendment was allowed does not expressly say that the payment of costs is a condition precedent and, therefore, the acceptance thereof does not take away the right of his clients to raise a plea of limitation as held by the Supreme Court in case of Bijendra Nath Srivastava (Dead) through LRs v. Mayank Srivastava and Others, reported in AIR 1994 SC 2562 . He vehemently submits that an application for amendment incorporating the plea of co-sharership was apparently barred at the time of its presentation and, therefore, the order is a nullity. According to Mr. Chatterjee, even the costs subsequently accepted, does not invalidate the order which is per se a nullity as there cannot be any estoppel against an order which is a nullity as held by the Supreme Court in case of Ashok Layland Ltd. v. State of T.N. and Another reported, in (2004) 3 SCC 1 . He, therefore, submits that both the Courts have rejected an application for pre-emption by assigning reasons which cannot be said to be perverse and contrary to law and, therefore, the High Court in exercise of power enshrined under Article 227 of the Constitution should not interfere with such concurrent findings of facts. 12. The legal points emanate from the respective submissions are: 1. Whether an application for preemption is maintainable when the entire share or a portion of a plot of land is transferred by a raiyat or can only be maintained if a portion of a share of a plot of land is transferred by raiyat to a third party other than the co-sharer; 2. Whether the preemption is available to a purchaser of a well demarcated portion from an admitted owner who subsequently sold the remaining portion to a third party on the ground of co-sharership; 3. Whether the preemption is available to a purchaser of a well demarcated portion from an admitted owner who subsequently sold the remaining portion to a third party on the ground of co-sharership; 3. Whether the plea of limitation is available, if at the time of allowing an application for amendment, the Court did not restrict its operation from a particular date if the original application on the other ground is well within the period of limitation. Point No 1. 13. Admittedly one Mira Debi owned and possessed of twenty eight cents of a land comprised in plot No. 1086 and sold, transferred and conveyed six cents out of twenty eight cents to Subhadra Debi and Chhedi Show in the year 1990. The said Subhadra Debi and Chhedi Show sold, transferred and conveyed five cents of land out of six cents which they acquired from Mira Debi to the petitioners herein on 17.8.1992. Subsequently, Mira Debi sold further five cents of land to Subhadra Debi alone in the year 2000 which was in turn sold to the opposite party No. 1 to 2 by Subhadra Debi on 16.1.2006 at a consideration of Rs. 1,20,000/-. It appears that the remaining portion of the said Subhadra Debi and Chhedi Show was gifted to Smt. Jai Kaur, which according to the opposite party Nos. 1 and 2 is the land demarcating the plot of land owned by the petitioners and the said opposite parties. The aforesaid fact may assume importance if the plea of vicinage is taken before this Court but is not now relevant after the parties abandoned the said plea. 14. Section 8 of the Act deals with the right of purchase by a co-sharer or contiguous plot holder and bargadar if a portion or share of a plot of land of a raiyat is transferred to any other person than the persons indicated above. The Land is defined under Section 2 (7) of the said Act to mean the land of every description together with all interest and benefits arising therefrom and things attached to earth or permanently fastened to anything attached to earth. The definition of a raiyat given under Section 2 (10) of the said Act is extensive in the sense that it means a person or a institution holding land for any purpose whatsoever. The definition of a raiyat given under Section 2 (10) of the said Act is extensive in the sense that it means a person or a institution holding land for any purpose whatsoever. The broad meaning assigned to the definition of a raiyat can be well conceived because of the change in the definition as the original definition was restrictive and confined to a land held for the purpose of agriculture. 15. It is noticed from the language employed in Section 8 of the said Act that a right of purchase accrues if a portion or share of a plot of land of raiyat to transfer to any other person than a co-sharer of a raiyat in a plot of land. Such right is bestowed on three categories of persons, namely, Bargadar, Co-sharer of a raiyat in a plot of land and any raiyat possessing land adjoining to such plot of land. The expression a portion or share of a plot of land of a raiyat does not envisage that right to purchase would arise only when a portion of a share of a plot of land of a raiyat is transferred. The legislature did not make any distinction between the entire portion or entire share of a plot of land of a raiyat to be transferred nor it conveys any intention that the right to purchase can be exercised only if a portion of a share of plot of land is transferred by a raiyat to any person other than the co-sharer. If the language of the statute is clear, unambiguous and sufficiently conveys the definite meaning and the object and purpose behind its incorporation, no external aid of interpretation should be taken recourse to. This Court has an occasion to deal the aforesaid point in case of Sk. Sajhan Ali & Others v. Sk. Saber Ali & Another, in C.O. 345 of 2015 with CAN No. 2170 of 2015 delivered on March 10, 2015, held that an application for preemption is maintainable even the entire partition or entire share of plot of land is transferred or a fraction thereof to any person other than the co-sharer of a raiyat. Saber Ali & Another, in C.O. 345 of 2015 with CAN No. 2170 of 2015 delivered on March 10, 2015, held that an application for preemption is maintainable even the entire partition or entire share of plot of land is transferred or a fraction thereof to any person other than the co-sharer of a raiyat. It would be relevant to quote the excerpts from the said judgment which runs thus: "Taking the second plea, the legislators consciously incorporated the word or between the words hare and portion, which necessarily implies that if a raiyat transfers his entire portion or share in a plot of land to a person other than the co-sharer of raiyat, the preemption is permissible. 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 plot of land of a raiyat is transferred to 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 lot of land, the right of preemption can be exercised. The words used in the statute are not surplus-ages. 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 Jeyaram Educational Trust & Others v. A. G. Syed Mohideen & Others, 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. 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. 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 made to a settled rules of construction and interpretation to ascertain the true meaning of the provision." 16. This Court is of the view that an application for preemption is maintainable even when a co-sharer has divested his entire share or portion of plot of land to a third person than the raiyat. Point No. 2. 17. Admittedly, Mira Debi who owned and possessed twenty eight cents of land in plot No. 1086 sold six cents of land to Subhadra Debi and Chhedi Show in the year 1990. The said deed being exhibit 1 clearly depicts the well demarcated portion having sold through the said deed. The aforesaid purchasers, in turn, sold un-demarcated land measuring five cents out of demarcated six cents of land to the petitioners by executing the deed of sale dated 31st July, 1992. The remaining one cent of land was subsequently gifted to Jai Kaur being the member of the family of the petitioners by the said purchasers in the year 2006. The deed of gift which is exhibit A contains a description of the said land with its demarcation. Therefore, the entire six cents of land purchased by Subhadra Debi and Chhedi Show, which was demarcated by the admitted owner, i.e., Mira Debi, was sold, transferred and conveyed to the petitioners and their family members. Subhadra Debi alone purchased a further five cents of land from Mira Debi in the year 1992 and the deed of sale being exhibit 7 does not show that the said land sold by the Mira Debi was well demarcated from the remaining portion of the land retained by Mira Debi. The said five cents of land is subsequently sold to the opposite party Nos. 1 and 2 by Subhadra Debi in the year 2006. The said five cents of land is subsequently sold to the opposite party Nos. 1 and 2 by Subhadra Debi in the year 2006. In this regard the reference is made to a judgment referred by this Court in Sk. Samser Ali v. Serina Bibi (Supra), it is held that if a well demarcated portion is sold by the original owner of a plot of land, the purchaser does not became the co-sharer with the original owner in this words: "10. Having considered the respective submissions it is undisputed that the plot No. 633 comprised in 244 satak out of which 144 satak is a tank and the remaining 80 satak is an embankment. Admittedly the petitioners purchased 26 satak out of 80 satak prior to the purchase by the opposite party No. 1. The petitioner filed the record of rights before the Trial Court being Ext. 6 to show that their name has been recorded in respect of the said plot No. 633 as co-sharer. From the sale deed produced by the petitioner whereby the opposite party No. 2 sold 3 satak of land to one Manowara Bibi, the petitioner No. 2 herein. It appears that a well demarcated portion has been sold. When an original owner has sold the well-demarcated portion it does not attract section 14 and the said purchase does not become the co-sharer along with the original owner. Admittedly the remaining portion of the larger property owned by the opposite party No. 2 being the original owner sold the same to the opposite party No. 1 and this it cannot be said that a portion or a part of the plot of land was sold." 18. In case of Subal Mondal (Supra), the co-ordinate bench held: "17. The co-sharer of the raiyat in a plot of land has been defined in Section 2(6) as a person other than the raiyat who has an undemocratic interest in the plot of land along with the raiyat. If a raiyat being sole owner of the entire plot of land sells out a well demarcated portion of the land to different purchasers through different kobalas then each purchaser becomes sole owner of the demarcated portion purchased by him and none of them becomes a co-sharer of the demarcated land sold out to other purchasers. If a raiyat being sole owner of the entire plot of land sells out a well demarcated portion of the land to different purchasers through different kobalas then each purchaser becomes sole owner of the demarcated portion purchased by him and none of them becomes a co-sharer of the demarcated land sold out to other purchasers. As such, pre-emptor Gopal Chandra Mondal was not a co-sharer of Sankar Nath Mondal, vendor of the pre-emptee, relating to Sankars purchased lands." 19. It is, therefore, clear that the petitioners having purchased the well demarcated portion from Subhadra Debi and Chhedi Show who purchased the said plot of land from the admitted owner cannot be a cosharer of a raiyat. Though Section 14 of the Act recognises the incident of partition but the same has no manner of applicability if there was no co-sharer of a plot of land which was owned solely by a single person and having divested his right, title and interest in a portion of a land with full demarcation. If the petitioners cannot be a co-sharer with admitted sole owner he cannot assume such character if the remaining portion of the plot of land apart from well demarcated portion is transferred to a third party. Point No. 3 20. Section 8 of the Act provides a special period of limitation to a specified class of persons having right of purchase. The period of limitation enshrined for co-sharer of a raiyat under the aforesaid provision is three months from the date of service of notice given under sub-Section (5) of Section 5 of the said Act. Undisputedly, the transfer was completed on 7.3.2006 and an application under Section 8 of the said Act came to be filed though on the ground of vicinage on 12.4.2006. It is no doubt true that an application for amendment was taken out much beyond the period of limitation provided under the aforesaid Section but while allowing the said application, the Court did not restrict its operation from the date of the said application. Ordinarily, if the application for amendment is allowed by the Court, it would relate back to the date of institution of the original proceedings. Ordinarily, if the application for amendment is allowed by the Court, it would relate back to the date of institution of the original proceedings. The general rule is not free from exception as the court at the time of allowing an application for amendment can restrict the applicability of doctrine of relation back and permit the application for amendment to take effect from the date of the said application. 21. In case of Siddalingamma and Another v. Mamtha Shenoy, reported in (2001) 8 SCC 561 , the Apex Court held that the doctrine of relation back, which generally governs amendment of pleadings is the universal rule unless the Court by reasons excludes the applicability of the said doctrine. The aforesaid ratio is further reiterated in a subsequent decision of the Supreme Court rendered in case of Prithi Pal Singh & Another v. Amrik Singh and Others (Supra) in following words: "11. this principle has been enunciated by the Hon'ble Apex Court in Siddalingamma v. Mamtha Shenoy, wherein the Court observed: On the doctrine of relation back, which generally governs amendment of pleadings unless for reasons the court excludes the applicability of the doctrine in a given case, the petition for eviction as amended would be deemed to have been filed originally as such and the evidence shall have to be appreciated in the light of the averments made in the amended petition." 22. The Order No. 17 dated June 29, 2007 passed by the Trial Court allowing an application for amendment does not contain any fetter or restriction that the amendment is to take effect from the date of an application and not from the date of institution of the suit. The plain and simple reading of the said order simply suggest that the Trial Court allowed the application for amendment by imposing costs. Furthermore, the costs was accepted by the opposite party without any demur or objection. A plea sought to be raised before this Court that if the costs imposed by the Court is not a condition precedent for allowing an application for amendment, mere acceptance thereof does not stand alone to defeat the right to agitate the plea of limitation. 23. The opposite party relies upon a judgment of the Supreme Court in case of Bijendra Nath Srivastava (Supra), which should be noticed in this regard: 24. 23. The opposite party relies upon a judgment of the Supreme Court in case of Bijendra Nath Srivastava (Supra), which should be noticed in this regard: 24. It is categorically held that if the Court did not record that an application for amendment is allowed subject to the condition of payment of costs which partakes the character of a conditional order mere acceptance of the costs does not estopped a party from assailing the said order. 25. It would be apt to quote paragraph 20 to 21 of the said judgment, which runs thus: "20. That apart the principle of estoppel which precludes a party from assailing an order allowing a petition, subject to payment of costs where the other party has accepted the costs in pursuance of the said order applies only in those cases where the order is in the nature of a conditional order and payment of costs is a condition precedent to the petition being allowed. In such a case it is open to the party not to accept the benefit of cost and this avoid the consequence of being deprived of the right to challenge the order on merits. The said principle would not apply to a case is not a condition on which the petition is allowed and costs have been awarded independently in exercise of the discretionary power of the court to award costs because in such a case the party who has been awarded costs has no opportunity to waive his right to question the validity or correctness of the order. The decision of the Andhra Pradesh High Court in the Mental Press Work Ltd., Calcutta v. G.M. Cotton Press Co., AIR 1976 AP 205 on which reliance has been placed by the High Court proceeds on the basis that awarding of costs was, in fact an substance, a part of the entire order allowing amendment in written statement and the said order was conditional one. The decision of the Madras High Court in Pryag Dossjee v. Venkat Perumal, AIR 1933 Madras 410 and the decision of the Patna High Court in Ramcharan v. Custodian of Evacuee Property, AIR 1964 Patna 275, and M. Kapura Kaur v. Narain Singh, AIR 1949 Patna 49, on which reliance has been placed in the said judgment of the Andhra Pradesh High Court also emphasise that the orders under challenge were conditional orders and payment of costs was a condition precedent to allowing the petition. in Devaiah v. Nagappa, AIR 1965 Mysore 102, the order allowing amendment of the election petition contained a direction regarding payment of costs. It was held that the application was allowed without any condition and that the order was not a conditional order and principle of estoppel was held inapplicable. 21. A perusal of order dated May 8, 1976 shows that the said order is not a conditional order. The Civil Judge, after considering the merits has allowed the proposed amendments. The costs were awarded not as a condition precedent to allowing the amendment but by way of exercise of the discretionary power of the court to award costs to the opposite party. It may also be mentioned that the appellants did not accept the said order dated May 8, 1976. They assailed the validity of the same at the stage of final hearing before the trial court but, the said contention was rejected by the Additional District and Sessions Judge on the view that the said order had become final as regards the proceedings before him and the same could not be recalled or reviewed. Thereafter, the appellants assailed the correctness of the order dated May 8, 1976 in the appeal filed by respondents Nos. 1 and 3 in the High Court, the principle of estoppel arising from acceptance of costs so to preclude the appellants from challenging the validity of the order dated May 8, 1976 cannot, therefore, be invoked in the facts and circumstances of the present case. Since the grounds given by the High Court for upholding the order dated May 5, 1976 cannot be affirmed the amendments allowed by the said order in so far as they relate to insertion of paragraphs 52 and 53 in the objection petition filed by respondent No. 14 are set aside." 26. Since the grounds given by the High Court for upholding the order dated May 5, 1976 cannot be affirmed the amendments allowed by the said order in so far as they relate to insertion of paragraphs 52 and 53 in the objection petition filed by respondent No. 14 are set aside." 26. The order by which the application for amendment was allowed does not incorporate any words by which the said order can be brought within the purview of conditional order and, therefore, the acceptance of the costs cannot take away the right of the party to assail the said order before the appropriate forum. 27. The plea of nullity as raised by Mr. Chatterjee has no manner of applicability in the present case. In case of Ashok Leyland (Supra), the Court was considering the matter where an order passed by the Court having no jurisdiction is a nullity and not the case when the Court competent to pass an order can be branded as a nullity on the ground of limitation. Admittedly, the proceedings was initiated within the period of limitation be it on the ground of vicinage or co-sharership. If the factual foundations are in existence in the original application, the subsequent incorporation of additional relief based on the basis of the available facts cannot said to be barred by limitation. Furthermore, the Court did not exclude the applicability of doctrine of relation back while allowing an application for amendment and, therefore, it would be deemed that the additional relief is to be adjudicated and/or determined having taken at the time of institution of the said proceedings. 28. In view of the discussions made here in above, this Court does not find that both the Court below have acted illegally and with material irregularity in passing the order for application for preemption. 29. The revisional application is, therefore, fails. No costs.