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Promode Ranjan Banerjee v. Nirapada Mondal Opposite Party.
Factual and Procedural Background
The petitioner-appellant filed an application for pre-emption alleging he was a co-sharer of a land holding pertaining to Plot No. 3310 measuring .74 cents. Satish Chandra Pramanick, owner of an adjacent holding of .94 decimals, sold his property to Lutfar Rahaman in 1970 with an agreement for reconveyance. The right of reconveyance was transferred to the opposite party, who obtained a decree for specific performance against Lutfar Rahaman. The petitioner only became aware of this transfer on 22-9-1972 and filed an application for pre-emption on the basis of being a co-sharer, later amending the claim to pre-emption on the ground of vicinage. The initial application was dismissed for default. Subsequently, the petitioner filed a fresh application under Section 8 of the West Bengal Land Reforms Act, 1956, and sought condonation of delay under Section 5 of the Limitation Act. The learned Munsif allowed the pre-emption, but on appeal, the Additional District Judge dismissed it on the ground that the entire holding was transferred, rendering the pre-emption application not maintainable. The petitioner then filed this revisional application.
Legal Issues Presented
- Whether the petitioner, as a contiguous tenant, has the right to seek pre-emption under Section 8 of the West Bengal Land Reforms Act when the entire holding has been transferred.
- Whether the delay in filing the application for pre-emption can be condoned under Section 5 of the Limitation Act.
- Whether the principle of res judicata under Section 11, Explanation VIII of the Code of Civil Procedure bars the petitioner from filing a second application after dismissal of the first for default.
- Whether the application for pre-emption on the ground of vicinage is maintainable when the entire holding is transferred.
Arguments of the Parties
Petitioner’s Arguments
- The petitioner’s earlier application for pre-emption on the ground of contiguous ownership was dismissed for default, but this does not bar filing a fresh application with a prayer for condonation of delay under Section 5 of the Limitation Act.
- Section 8(1) of the West Bengal Land Reforms Act allows a contiguous tenant to seek pre-emption even if the entire holding is transferred.
- The Additional District Judge failed to consider the application for condonation of delay under Section 5 of the Limitation Act.
- If the Court finds fit, the matter should be remitted to the Additional District Judge for consideration of the Section 5 application.
Opposite Party’s Arguments
- Reliance on the decision in Krishnapada v. Usha Rani to argue that an application under Section 8 by an owner of contiguous land is not maintainable when the entire holding is transferred.
- The petitioner’s application is barred by limitation as he became aware of the transfer in September 1972 but filed the application only in January 1976.
- Reference to Ashalata v. Gopal Chandra to assert that limitation for pre-emption by a contiguous tenant is four months.
- The earlier application’s dismissal bars the present application under the doctrine of res judicata as per Section 11 of the CPC and Explanation VIII.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Krishnapada v. Usha Rani (1974) 78 Cal WN 779 | Pre-emption by owner of contiguous land not maintainable when entire holding transferred. | Opposite party relied on it, but court analyzed it in context of statutory interpretation. |
| Ashalata v. Gopal Chandra (1975) 1 Cal LJ 494 | Limitation period for contiguous tenant's pre-emption application is four months. | Opposite party cited it for limitation; court distinguished it based on later authority. |
| Sri Debabrata Bhowmick v. Sm. Nani Bala Some (1979) 83 Cal WN 62 | No new cause of action and no limitation when pre-emption claim amended from co-sharer to vicinage ground. | Court followed this latest Bench decision to hold no limitation bar applied. |
| Nabin Majhi v. Tela Majhi & Anr., AIR 1978 Cal 440 | Explanation VIII of Section 11 CPC applies only to courts of limited jurisdiction (Revenue, Land Acquisition, Administrative Courts). | Court held that earlier dismissal was not by a court of limited jurisdiction; res judicata did not apply. |
| Biswanath v. Smt. Subala, AIR 1962 Cal 272 | Dismissing an application for default does not decide merits; subsequent application not barred. | Court relied on it to reject res judicata argument as earlier dismissal was for default. |
| Sheodhan Singh v. D. Kunwar, AIR 1966 SC 1332 | No res judicata if earlier matter was dismissed for non-hearing on merits due to procedural defects. | Court applied this principle to hold no bar to petitioner’s second application. |
| Madan Mohan v. Sishu Bala (1972) 76 Cal WN 1058 (Full Bench) | After 14-4-1956, co-sharers become direct tenants and pre-emption cannot be claimed on co-sharer ground. | Court applied this to reject petitioner’s claim based on co-sharer status. |
Court's Reasoning and Analysis
The Court first addressed the res judicata argument, holding that the dismissal of the petitioner’s earlier application for default did not amount to a decision on merits and was not by a court of limited jurisdiction; thus, the bar of res judicata under Section 11, Explanation VIII of the CPC did not apply. Regarding limitation, the Court distinguished the earlier decision in Ashalata v. Gopal Chandra by following the later Bench decision in Sri Debabrata Bhowmick v. Sm. Nani Bala Some, which held that an amendment of the pre-emption claim from co-sharer to vicinage does not constitute a new cause of action and is not subject to limitation. However, the Court noted that the Additional District Judge did not consider the petitioner’s application for condonation of delay under Section 5 of the Limitation Act, which remains an open question.
On the question of maintainability, the Court interpreted Section 8(1) of the West Bengal Land Reforms Act strictly, observing that the right of pre-emption on the ground of vicinage applies only when a portion or share of a holding is transferred, not when the entire holding is sold. The Court emphasized that the language of the statute refers specifically to "portion or share" of the holding, and accepting the petitioner’s broader interpretation would require importing words not present in the statute, contrary to established principles of statutory interpretation.
The Court further relied on the Full Bench decision in Madan Mohan v. Sishu Bala to clarify that after 1956, co-sharers became direct tenants and pre-emption cannot be claimed on the basis of co-sharer status. The land in question constituted a separate holding, and since the entire holding was transferred, the application for pre-emption was held not maintainable.
Holding and Implications
The revisional application is dismissed.
The Court held that the application for pre-emption was not maintainable because the entire holding was transferred, and the statutory right of pre-emption under Section 8(1) of the West Bengal Land Reforms Act applies only when a portion or share of a holding is transferred. The petitioner’s argument based on co-sharer status was rejected in light of settled law. The Court also ruled that the earlier dismissal of the petitioner’s application for default did not bar filing a fresh application due to lack of a decision on merits and absence of a court of limited jurisdiction, thus rejecting the res judicata plea. Although the question of condonation of delay under the Limitation Act was noted as unresolved, the Court did not remit the matter for fresh consideration on that point. No new precedent was set; the decision applies the established principles of statutory interpretation and procedural law to the facts of this case, resulting in the dismissal of the petitioner’s revisional application.
1. The petitioner-appellant filed an application for pre-emption. The allegation is that the petitioner is a co-sharer. The land appertaining to the Plot No. 3310 measuring .74 cents constitutes a holding. Satish Chandra Pramanick was the owner of another holding having an area of .94 decimals. Satish Chandra Pramanick sold his property to one Lutfar Rahaman on 5-8-1970 for Rs. 1,500/-. There was an agreement for reconveyance of the property. The right of reconveyance was transferred to the opposite party, who instituted a suit against Lutfar Rahaman for specific performance of contract and he obtained a decree. The petitioner had no knowledge of the transfer. On 22-9-1972, he became aware of such transfer. He filed an application for pre-emption on the footing that he was a co-sharer. Subsequently, he made a prayer for preemption on the ground of vicinage. That prayer was turned down and hence, that application was not proceeded with and it was dismissed for default. Thereafter he again applied for pre-emption according to the provisions of Section 8 of the West Bengal Land Reforms Act X of 1956 on the ground of vicinage. He also put in an application under Section 5 of the Limitation Act for condonation of delay.
2. The opposite party filed an objection. The learned Munsif allowed the prayer for pre-emption.
3. An appeal was preferred by the opposite party and the same was allowed on the only ground that the entire holding had been transferred. Since a portion of the holding was not transferred, the application for preemption was not maintainable. The learned Additional District Judge dismissed the application for pre-emption. Hence this revisional application by the petitioner.
4. Mr. M.N Ghosh has contended on behalf of the petitioner that the application under Section 5 of the Limitation Act was rightly filed because in the previous application for pre-emption, he made an attempt to ask for pre-emption on the ground that he was the owner of the contiguous holding. That prayer was turned down by the Court and hence, that application, for pre-emption was dismissed on non-prosecution. Thus, there is sufficient ground for filling such second application for pre-emption. The learned Additional District Judge did not deal with the question of condoning the delay under Section 5 of the Limitation Act. The wordings of Section 8(1) of the Act “…… …or any raiyat possessing land adjoining such holding………” clearly show that when a pre-emption is asked for on the ground of vicinage, it is not necessary that there was a transfer of only a portion or share of the holding. Even if the entire holding is transferred and the petitioner happens to be the owner of the contiguous holding, he has a right to ask for preemption. It has thus, been contended that this revisional application should be allowed. If the Court thinks fit, the matter may be remitted to the Additional District Judge for deciding the merits of the application under Section 5 of the Limitation Act.
5. The learned Advocate, appearing on behalf of the opposite party, has referred to the decision of Krishnapada v. Usha Rani in (1974) 78 Cal WN 779 and contended that in view of that decision, an application under S. 8 of the Act by the owner of the contiguous land is not maintainable, when the entire land is transferred. The question of limitation stares the petitioner in the face because the petitioner's version is that he came to know of the proceedings on the 22nd Sept., 1972, whereas the present prayer for preemption was made in Jan., 1976. He has also referred to the Bench decision of Ashalata v. Gopal Chandra in (1975) 1 Cal LJ 494 to show that when an application for pre-emption is filed by a contiguous tenant, the period of limitation is only four months. Moreover, the previous case for pre-emption was dismissed. Hence, in view of the provisions of Section 11 of the CPC, the application is barred by res judicata because Expln. VIII thereof shows that any issue heard and finally decided by a Court of limited jurisdiction shall operate as res judicata in a subsequent suit, though such Court was not competent to try the subsequent suit in which such issue has been subsequently raised.
6. Let us first deal with the question of res judicata. Section 11, Explanation VIII of the Code of Civil Procedure speaks of any issue heard and finally decided by a Court of limited jurisdiction. The previous case was dismissed for default in the Court of the learned Munsif and that Court was not a Court of limited jurisdiction, as argued on behalf of the opposite party. In the Bench case of Nabin Majhi v. Tela Majhi & Anr. in AIR 1978 Cal 440 this question came up for our consideration. It has been stated that the expression, “Courts of limited jurisdiction” means Revenue Courts, Land Acquisition Courts, Administrative Courts and not ordinary Civil Courts. So this submission is without any substance.
7. Further, in the Bench case of Biswanath v. Smt. Subala in AIR 1962 Cal 272, a Bench of our Court has stated that when an application is dismissed for default, it does not involve any decision on the merits and so, filling of a second objection is not barred even if it is similar or dissimilar. In the case of Sheodhan Singh v. D. Kunwar in AIR 1966 SC 1332, Mr. Justice Wanchoo has stated that when there is no decision on the merits, that is, when the matter is not heard and finally decided because of want of jurisdiction, default, non-joinder, misjoinder, multifariousness, defective framing of the suit, technical mistake, failure to produce probate or succession certificate, failure to deposit the security for costs, for improper valuation, for non-payment of Court-fee, for want of cause of action or the suit being premature, there is no question of res judicata. Here, the previous case was dismissed for non-prosecution. So, the matter was not at all heard and finally decided within the meaning of the provisions of Section 11 of the CPC. There was no decision on the merits and hence, it must be held that the bar of res judicata is out of the way.
8. Then about the limitation. Of course, the decision of the Bench case of Ashalata v. Gopal Chandra in (1975) 1 Cal LJ 494 is in favour of the opposite party. But in the latest Bench decision of Sri Debabrata Bhowmick v. Sm. Nani Bala Some in (1979) 83 Cal WN 62, a Bench of our High Court has stated that where the petition for pre-emption is asked for on the footing that the applicant is a co-sharer and subsequently, an amendment is asked for on the ground of vicinage, it has been held that there in no new cause of action and so, there is no limitation. The views expressed in the latest Division Bench decision of Sri Debabrata Bhowmick v. Sm. Nani Bala Some will be followed. I, therefore, hold that here there is no limitation of four months. But there is a snag in this case because the learned Additional District Judge did not go into the question of the merits of the petition filed under Section 5 of the Limitation Act.
9. Lastly about the question of maintainability of the present application. Section 8(1) clearly shows that the right of pre-emption is available to a person, who is a contiguous tenant, if only a portion or share of a holding is transferred and not when the entire holding is transferred. The words ”……or any raiyat possessing land adjoining such holding may within four months of the date of such transfer, apply………… for transfer of the said portion or share of the holding” appearing in Sub-S.(1) of S. 8 of the Act have reference to the words “portion or share” appearing in the earlier part of that Sub-Section. That is also clear from the words “………apply……… for transfer of the said portion or share of the holding” appearing in the later portion of that Sub-Section. If the interpretation put by Mr. Ghosh is to be accepted, then one shall have to import some new words into that Section which are absent and the same will run counter to the established principles of interpretation of statutes.
10. Section 2(6) of the Act shows that holding means the land or lands held by a raiyat and treated as a unit for assessment of revenue. The decision arrived at in the Full Bench case of Madan Mohan v. Sishu Bala in (1972) 76 Cal WN 1058 is Clear. It has been grated in that case that after 14-4-1956, it co-shares of a holding become to be a co-sharer and each raiyat of a holding becomes a direct tenant under the State. So after that date, no preemption can be asked for on the ground that a person is a co-sharer. It has been pointed out by the opposite arty that the pre-emption was asked for recording the Plot No. 3310 having an area of .74 cents, appertaining to Khatian No. 1130. That plot has been recorded in the Khatian, Ext. 3(b), in the names of Satish's coup. They have 4 annas share in the entire jama. There are only three plots in that jama and they are separately possessed the separate groups. Hence, the submission a made on behalf of the petitioner in this respect are not accepted.
11. It is, therefore, held that the land in question constitutes a separate holding and since the entire holding was transferred, the application for pre-emption is not maintainable. Hence, this revisional application must fail.
12. The Rule is, therefore, discharged.
13. There will be no order as to costs.
14. Application dismissed.
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