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2016 DIGILAW 154 (CAL)

Jayanta Kumar Jana v. Mina Rani Panja

2016-02-10

ASHOKE KUMAR DASADHIKARI

body2016
JUDGMENT : Ashoke Kumar Dasadhikari, J. These three revisional applications are taken up together since the issues involved in three revisional applications are same and relates to sale of same plot of land purchased by the opposite parties in these three revisional applications by three separate sale Deeds. 2. Learned appellate Court in Misc. Appeal No.33 of 2007 reversed the order of learned Civil Judge (Junior Division), Haldia thereby quashing the order of preemption granted in favour of the petitioners/pre-emptors and also rejected two appeals filed by the petitioners/pre-emptors against the order of learned trial Court passed in respect of two other purchasers i.e., minor son of Amar Krishna Panja viz. Subhankar Panja and his wife, Smt. Mina Rani Pradhan. 3. In the present case, one Bagala Prosad Pradhan was the transferor in respect of plot No.28 within mouza Dakhin Baisnabchak., He transferred the entire plot by three separate sale Deeds executed and registered in favour of the opposite party viz. Amar Krishna Panja for four decimals and three decimals to his minor son, Subhankar Panja and three decimals to his wife, Smt. Mina Rani Pradhan and all three Deeds were registered on 27th August, 1997. Learned trial Court allowed pre-emption against Amar Krishna Panja since the portion purchased by Amar Krishna Panja involved in P. Misc. Case No.72 of 1997 is adjacent the boundary of petitioners’ plot No.47 and 48. So far the portions purchased by his son and wife by to separate sale Deeds are not adjacent to petitioners’ aforementioned plots. Therefore, applications for pre-emption for those two shares involved in Misc. Case No.73 of 1997 and P. Misc. Case No.74 of 1997 were dismissed. 4. Learned appellate Court set aside the order of pre-emption against Amar Krishna Panja the pre-emptee and dismissed the appeals filed by Sri Jayanta Kumar Panja & others against Subhankar Panja and Smt, Mina Rani Pradhan on two grounds. 5. The first ground for allowing the appeal filed by Amar Krishna Panja and dismissal of two appeals filed by the petitioners/pre-emptors was that the transfer of three separate portions of the same plot of land being plot no.28 within mouza Dakhin Baisnabchak by three separate registered sale Deeds of same date. 6. 5. The first ground for allowing the appeal filed by Amar Krishna Panja and dismissal of two appeals filed by the petitioners/pre-emptors was that the transfer of three separate portions of the same plot of land being plot no.28 within mouza Dakhin Baisnabchak by three separate registered sale Deeds of same date. 6. Learned Court below held in view of different decisions of this Hon’ble High Court and Hon’ble Apex Court the date of execution is not the relevant date, rather the date of registration of their sale deeds are the relevant date for consideration. Learned Court below found that the entire plot was sold to the family of three members viz. husband, wife and son in three separate shares amounts to single transfer in view of the decision of this Hon’ble High Court and in case of such transfer of the entire holding the pre-emptor even if he is an owner of adjoining holding is not entitled to get an order of pre-emption in his favour. 7. The Appellate Judge considered the transfer made in favour of the three members of the family on the same date is a transfer in entirety and held since entire plot of land was transferred, petitioners/pre-emptors are not entitled to get an order of pre-emption in their favour on the ground of vicinage. 8. Dr. Mondal, learned counsel appearing for the petitioners submits that petitioners are admittedly adjoining owners. He submits that relevant date for consideration is the date of execution, not the date of registration of the sale Deeds. 9. Dr. Mondal submits in case of Amar Krishna Panja, (husband) sale Deed was executed on 26th July 1993 for an area of three decimals of the aforementioned plot. He submits there is part transfer and the date of execution being the relevant date. Learned appellate Court below ought not to have allowed the appeal filed by Sri Panja accepting the date of registration as the material date. 10. Dr. Mondal submits once the order of execution is accepted then there would be a partial transfer and the petitioners being the adjoining owners is entitled to get pre-emption in their favour on the ground of vicinage. 10. Dr. Mondal submits once the order of execution is accepted then there would be a partial transfer and the petitioners being the adjoining owners is entitled to get pre-emption in their favour on the ground of vicinage. Similarly, in two other appeals preferred by the petitioners against the order of the learned Civil Judge applying same principle the adjoining owners/petitioners are entitled to get pre-emption in respect of both shares sold by two separate sale Deeds in favour of his minor son and also his wife Sri Panja. 11. Dr. Mondal submits the relevant and material date is the date of execution, which is admittedly different in the instant case. The husband’s date of execution is 26th July 1993 whereas the son and wife, date of execution of sale Deed is 27th July 1993. 12. Dr. Mondal relied upon a judgment reported in 1970 CLJ 349 (Sri Bhuban Chandra Samanta v. Jamini Bhusan Kar & Ors). He submits that petitioners being the contiguous raiyat have a right of pre-emption in case of transfer of a share or portion of the entire holding. He submits that in this judgment the learned Single Judge have held that the date of execution would be relevant date. He has referred paragraph 4 of the judgment, which reads as follows: - 4. It was next contended by Mr. Bhunia that although the transfer by the Kobalas were made on the same day and although all the kobalas were registered on the same day, as soon as the first transfer was made by the opposite party No.2, in favour of opposite party No.1, the opposite party No.1, the transferee, became the cosharer of the transferor, the opposite party No.2, and the subsequent transfers not having been made in favour of opposite party No.1 who became the co-sharer, the petitioner being a contiguous raiyat was entitled to pre-empt the subsequent transferee who were all strangers. Attractive though the contention is, I am unable to accept the same. As aforesaid, the opposite party No.2 executed six kobalas, all on April 6, 1964, thereby transferring the entire holding to different transferees in specific portions. The right of pre-emption arises only out of a valid and complete sale. Attractive though the contention is, I am unable to accept the same. As aforesaid, the opposite party No.2 executed six kobalas, all on April 6, 1964, thereby transferring the entire holding to different transferees in specific portions. The right of pre-emption arises only out of a valid and complete sale. A sale of immovable property is not complete until the registration of the document of sale is completed, and the registration of the document of sale is not complete till the document to be registered has been copied out in the records of the Registration Office as provided in Section 61 of the Registration Act, Vide Ram Saran Lall v. Mst. Domini Kuer, (1962) 2 SCR 474 . In the instant cases, the kobalas were registered on the same day and there is no evidence at what point of time each document was copied in the records of the Registration Office. It has, however, been argued that each of the kobalas bears a serial number put by the registering authority at the time it was copied in the registration records. From the serial numbers of the kobalas, the order in which they were registered can be ascertained and as soon as that is done, it can be said with definite certainty which of these kobalas was registered first, so that the transferee under that kobalas will be the first transferee in point of time. Similarly the point of time in respect of the other kobalas can also be found. Even assuming that it is possible to ascertain the order of registration of the said kobalas, the contention of Mr. Bhunia cannot be accepted. When a raiyat transfers the entire holding to different persons in specific shares or portions, the transfer deeds having been executed on the same day and registered simultaneously on the same day and not on different dates, such transfers, in my view, are tantamount to a single transfer in respect of the entire holding, as if the transferees jointly purchased the holding by a single document, each purchasing a specific share or portion, so that there is no question of any right of pre-emption of a raiyat possessing land adjoining the holding, under Section 8 (1) of the Act. In the result these rules are discharged. But in the circumstances there will be no order for cost. 13. Dr. In the result these rules are discharged. But in the circumstances there will be no order for cost. 13. Dr. Mondal submits if the learned Court accept the date of execution of the sale Deed in the first transfer then the subsequent transfers by execution of two separate Deeds in favour of wife and son would also establish a right in favour of the petitioners and they would be entitled to get pre-emption for those two portions of land. 14. Dr. Mondal submits in view of the fact that the sale deeds were executed on different dates. Learned appellate Court ought not have allowed the appeal preferred by the husband, Sri Panja and dismissed the appeals preferred by the petitioners against rejection of pre-emption application filed against wife and son of Sri Panja . 15. Dr. Mondal submits that the impugned orders are to be set aside by this Hon’ble Court and matters be sent back for re-adjudication or this Court can grant pre-emption in favour of the petitioners in respect of three separate plots purchased in favour of Sri Panja and his son and wife. 16. On the contrary, Mr. Sahoo, learned counsel appearing for the stranger purchaser submitted that the relevant date for consideration is the date of registration. The law is well settled for few decades. He has referred judgment delivered by Division Bench of this Hon’ble Court reported in 60 CHN (Gostor Behari Das v. Rajabala Devi & Anr) page 59. 17. Mr. Sahoo submitted that the date of accrual of right of pre-emption is not the date of execution of the Deed of sale or any earlier date but the date when the Deed of sale is registered and title effectively passes. 18. Mr. Sahoo submitted that the aforementioned case was under Section 26F of Bengal Tenancy Act (Act VII of 1885). In this case the Hon’ble Division Bench following several decision of this Hon’ble High Court specifically held that the date of registration is the material date. The same view was taken by a Single Judge of this Hon’ble Court in a case reported in 1977 (1) CLJ page 92. 19. Mr. Sahoo submitted that the Deed becoming effective when registration was completed within the meaning of Sections 60 & 61 of Registration Act not before that. The same view was taken by a Single Judge of this Hon’ble Court in a case reported in 1977 (1) CLJ page 92. 19. Mr. Sahoo submitted that the Deed becoming effective when registration was completed within the meaning of Sections 60 & 61 of Registration Act not before that. He cited the latest judgment of the Hon’ble Apex Court on this point reported in (2006) 10 SCC page 404 (Chandrika Singh (Dead) through LRS. v. Arvind Kumar Singh (Dead) by LRS. & Ors). 20. Mr. Sahoo submitted that the pre-emptor can be permitted to file preemption application within three months from the date of registration of transfer Deed and the right of pre-emption accrues only when the Deed of transfer is registered. He submitted that there is no dispute on the point that if entire plot of land is transferred by sale to three members of a family on the same date when all three sale Deeds were registered that would be treated single transfer. In case of such transfer of the entire plot the adjoining plot owner cannot claim any right of pre-emption. 21. Mr. Sahoo submitted since the law is well-settled upto the Hon’ble Apex Court there is no question of accepting the date of purchase as a material date for consideration of pre-emption application. He further submitted that the judgment and order passed by the learned appellate Court in all three cases are lawful and valid and it could not be interfered with. According to him, these revisional applications must be dismissed. 22. Having heard the submissions made by learned counsel Dr. Mondal and Mr. Sahoo appearing for the respective parties in appears that the only question to be considered by this Hon’ble High Court whether the date of execution of the sale Deed is the material date to be accepted for granting pre-emption in favour of the pre-emptors or whether the date of registration would be the material date for consideration to grant pre-emption in favour of the pre-emptors. 23. In my considered opinion this point is well-settled even upto Hon’ble Apex Court that the relevant and material date for starting limitation is the date of registration of the sale Deed. 23. In my considered opinion this point is well-settled even upto Hon’ble Apex Court that the relevant and material date for starting limitation is the date of registration of the sale Deed. Since all three Deeds were registered on the same date and the entire plot of land was transferred in the portions to the husband, wife and son, that would be treated as single transfer which is also settled before this Hon’ble Court. Therefore, the adjoining owners would not be entitled to claim in the property in pre-emption allegedly claiming three separate transfers. 24. However, judgement cited by Mr. Sahoo is very relevant. The relevant paragraph 59 & 60 in Gosto Behari Das (Supra) reported in 60 CHN is quoted herein below: - “It appears, however, from the decided cases that section 47 of the Registration Act has been construed as limited to successive transfers of the same property. Where different properties have been transferred by different instruments or whether the contest is with a third party, the decisions have been in accordance with the plain meaning of section 49 of the Registration Act or the relevant section of the Transfer of Property Act. Those decisions proceed on the view that where title to immovable property cannot be affected except by a registered instrument an instrument purporting to affect title can only operate when registration has been completed and, therefore, when there is a competition between two documents executed on different dates, but concerning different properties, each should be taken as taking effect from the date of its registration. Decisions which have taken this view are the cases of Gobardhan Bar v. Gunadhar Bar, (44 C.W.N.802) and Naresh Chandra Dutt v. Girish Chandra Das, (61 C.L.J. 360). In fact the former followed the latter. The case in 61 C.L.J. 360, is in its own turn based, so far as this point is concerned upon a decision of the Madras High Court in the case of Veerappa Chetty v. Kadirasan Chetty, [ (1913) 24 M.L.J., 664 ]. 25. The relevant portion of the judgment which is very relevant in the case of Malay Kumar Bera (Supra) paragraph 6 & 7 are quoted below: - “Unless the registration is completed under Section 61 of the Registration Act, 1908, a transfer of a share or portion of a riayati holding would be still inchoate. 25. The relevant portion of the judgment which is very relevant in the case of Malay Kumar Bera (Supra) paragraph 6 & 7 are quoted below: - “Unless the registration is completed under Section 61 of the Registration Act, 1908, a transfer of a share or portion of a riayati holding would be still inchoate. Therefore, the period of limitation prescribed by Section 8(1) for making a pre-emption application by a contiguous tenant begins to run when the registration of the document is completed and the transfer becomes effective. The above question is now concluded by the decision of the Supreme Court in Hiralal Agarwal v. Rampadarath Singh & Others, AIR 1969 SC 244 . In the said case the Supreme Court dealt with the question of accrual of the right of re-conveyance under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1962. Shelat, J. delivering the judgment of the Court observed that under Section 16(2) and (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, no transfer takes place unless deed is registered. Registration is complete only when the certificate under Section 60. Registration Act is given and the endorsement and copying out the said certificate under Section 61 of the Registration Act are made.” 26. The relevant portion of the judgment delivered by the Hon’ble Apex Court in case of Chandrika Singh (Supra) through legal heirs is quoted below: - “As noted hereinbefore, the first sale deed was executed on 10.8.1983 in favour of Paras Sah, which was registered on 14.6.1984. Therefore, it cannot be disputed that the sale deed registered on 14.6.1984 could be pre-empted only within three months from 14.6.1984. Admittedly, in this case, the application for pre-emption was filed on 17.7.1984 i.e., well within the limitation period of 3 months. At the same time, it is also not in disputed that the second sale deed, which was executed by Paras Sah in favour Ghurla Kuer for a consideration of Rs 4000 was registered on 31.8.1984, that is, after the registration of the first sale deed and after the pre-emption application, under section 16(3) of the Act, was filed by the appellant, on 17.7.1984. Further, under Section 16(2) of the Act, a sale is complete only when the document of transfer is registered and unless the registration is complete under section 60 of the Registration Act, the transfer of the land in question would still be inchoate. From a plain reading of Section 16(3) of the Act it is clear that a pre-emptor can only be permitted to file the pre-emption application within 3 months from the date of registration of transfer deed. Therefore, the right to file the pre-emption application under Section 16(3) of the Act accrues only when the registration the document is completed. In Radhakisan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi this Court held that where a statute provides for a right of pre-emption, it will accrue only when the transfer of the land takes place and such transfer is not complete before the deed is registered. Accordingly, this Court held that an application for pre-emption filed before the sale deed was registered, would be premature. This view was appreciated again by this Court in Ram Saran Lall v. Domini Kuer. Further, in Hiralal Agrawal v. Rampadarath Singh Shelat, J. (as His Lordship then was), clearly observed that under Sections 16(2) and (3) of the Act, no transfer takes place unless the deed is registered. Registration is complete when the certificate under the provisions of the Registration Act is issued. That being the position, we are of the view that the right of reconveyance accrues to the pre-emptor only on the date of the completion of the registration of the transfer deed and an application for pre-emption under Section 16(3) of the Act filed before such date would be premature. Therefore, we hold that the preemptor, Chandrika Singh, appellant herein, was entitled to file the pre-emption application against Paras Sah, only after the first sale deed was registered on 14.6.1984 and not before that date. It is clear that the registration of the sale deed executed in favour of Smt. Ghurla Kuer by Paras Sah was not complete and effective, for want of registration, when the application for pre-emption, filed by Chandrika Singh. Accordingly, we do not find any reason to hold that the application for pre-emption, filed by Chandrika Singh could not be maintained against Paras Sah, the first transferee.” 27. Accordingly, we do not find any reason to hold that the application for pre-emption, filed by Chandrika Singh could not be maintained against Paras Sah, the first transferee.” 27. For all the aforementioned reasons, I find there is no merits in the revisional applications filed by the petitioners/pre-emptors and as such all the applications are dismissed. 28. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.