Smt. Karuna Sardar v. Sri Gopal Sardar Opposite Party.

1. This is a revisional application under Section 115 of the Code of Civil Procedure directed against the order dated 16th July, 1990 passed in Misc. Appeal No. 96 of 1988 arising out of Misc. Case No. 56 of 1985 under Section 8 of the W.B.L.R Act.

2. The present petitioner filed a case for pre-emption against the Opposite Party Gopal Chandra Halder in respect of Plot No. 1368 under Khatian No. 1638 of Mouza Jorehat, P.S Sankrail on the ground of vicinage. According to her she purchased five decimals of land of Plot No. 1366 of Khatian No. 423 of the same Mouza by two Sale Deeds namely one dated 28.7.66 and the other dated ??? The transfer that gave rise to the pre-emption case against the Opposite Party took place on 17.8.79 The Opposite Party raised objection that the case was barred by limitation and the purchase of the petitioner was subsequent to the purchase of the Opposite Party. The learned Trial Court did not accept the plea of limitation but found that the purchase by the petitioner took place in 1981, when Page: 291the purchase to be pre-empted took place in 1979 and on the last ground the learned Trial Court dismissed the case. There was a Misc. Appeal before the learned Additional District Judge and the learned Appellate Court found that the finding of the Trial Court on the point of limitation was erroneous and that when the entire plot was purchased by the Opposite Party, no question of pre-emption as co-sharer could be raised. And the learned Appellate Court also dismissed the Appeal. On being aggrieved by the judgments of dismissal passed by both the Courts below the present revisional application has been filed before this Court. It is submitted by the learned Advocate for the Appellant-Petitioner that when in Appeal, the findings on the question of limitation was not challenged, the Appellate Court was not free to re-open that question. The question of limitation is a question of law and definitely the Appellate Court can look into such question even if it is not raised before it. The second point placed before me by the learned Advocate for the petitioner is that, the learned Appellate Court committed error by holding that the entire plot has been transferred and as such no question of pre-emption on the ground of co-sharership could be there. I find, that the claim of preemption in the instant case is not based on co-sharership but on the ground of vicinage. It has been mentioned in the judgment of the Trial Court that by the purchase of 1966 which was prior to the transfer to be pre-empted was in respect of two decimals of land and the common boundary was very small. Of course, the subsequent purchase in 1981 provided a longer common boundary, but that purchase of 1981 was subsequent to the transfer to be pre-empted and the benefit of such purchase cannot be claimed by the petitioner. That apart Section 8 begins with “If a portion or share of a holding of a Rayot is transferred to any person other than a co-sharer in the holding, any co-sharer Rayot of the holding may exercise the right of pre-emption”. Thus, it is clear from the language of Section 8 of the W.B.L.R Act that the right of pre-emption accrues only if a portion or share of a holding is transferred to a stranger and as such it keeps out of the ambit of the right of pre-emption, the case, where the entire holding is transferred. Page: 292In the instant case, the learned First Appellate Court observed in his judgment that as the entire plot in question i.e Plot No. 1368 was purchased by the Opposite Party, the pre-emption case is not maintainable. ‘Entire holding’ does not mean one single plot. Specially, after 14.4.81 i.e when the amended Section 25 of the W.B.L.H.R Act came into force, the definition of holding as it was contained in Section 2(6) of the W.B.L.R Act has been radically changed. The holding does not mean only land held by Rayot as a unit for assessment of revenue as contemplated before such amendment. Now, it means, all the lands held by a Rayot irrespective of place where such lands are situated within West Bengal. This Misc. Case for pre-emption was started in 1985 i.e after the introduction of the amendment in Section 26 of the W.B.L.H.R Act and in view of the unreported decision passed by Hon'ble Mr. Justice M.M Dutta and Hon'ble Mr. Justice J.N Chowdhury in the case of (1) Debendra Nath Kharak v. Rekha Paul in C.O No. 2225 of 1984, the present petitioner is not debarred from claiming the right of pre-emption on the basis of earlier purchase in 1966 which land is contiguous to the plot of land to be pre-empted. Regarding the question of limitation it is already observed that it being a question of law it can be agitated at any time even before the Appellate Court. If not agitated by the party, the Court can examine the issue suo motu. The learned Trial Court i.e the Munsif held that the instant pre-emption case was filed within three years from the date of knowledge of the petitioner about the disputed transfer. It is submitted by the learned Advocate for the Opposite Party that the statutory limit prescribed by the Statute is four months from the date of transfer. The learned Advocate has also referred to me the decision of the Division Bench of this Court passed by Hon'ble Mr. Justice Chittatosh Mookherjee and Hon'ble Mr. Justice Sachindra Nath Bhattacharjee reported in (2) 1975 (1) CLJ at page 494. It is laid down that the right of preemption is a statutory right and such right has to be exercised strictly in accordance with the provision of Section 8 and obviously no question of equity arises and finally it is held by that decision that in case of contiguous land owner there is no scope for invoking Section 137 of the Limitation Act to extend the right of limitation. Another aspect will be relevant in this context that under the Old Article 181, Limitation Act of 1908, the law was applicable only to applications under the Code of Civil Procedure. But in view of the changed definition of the words ‘application’ and ‘applicant’ in Section 2(a) and 2(b) of the Limitation Act of 1963, Article 137 of the Page: 293Limitation Act, 1963 which corresponds to Old Article 181, should apply to applications under any act. This view has been laid down by the Supreme Court in (3) Kerala State Electricity Board v. T.P Kunha Liumma reported in (1976) 4 SCC 634 : AIR 1977 SC 282. It must be noted that prior to 12.2.1971 application for pre-emption was decided by Revenue Officers, not by Courts and according to that Supreme Court Decision, Limitation Act applies to proceedings in Court So, Article 137 of the Limitation Act was not applicable to any proceeding for preemption pending before Revenue Officer. But after the Amendment of 1971 of the W.B.L.R Act, the words ‘Revenue Officer’ have been substituted by the word ‘Munsif which is undoubtedly a Court according to the Bengal, Agra and Assam Civil Court Act. Thus, it can be deduced from the above discussion and specially the interpretation of Article 137 as given by the Apex Court, the benefit under Article 137 may also be extended to the case of a contiguous land holder in the matter of pre-emption. Law is not a wondering ghost. It has definitely its roots in the society and the interpretation of the law should be done in such away that it ensures equitable Justice administered according to the principle of natural Justice. In case of a co-sharer Rayot with notice of transfer the period of limitation is three months and in case of a non-notified co-sharer the period of limitation is three years from the date of knowledge. But we notice a definite and distinct departure from such equitable and natural principle of Justice in the case of a contiguous land holder. The period in such case has been fixed by the Statute as four months from the date of transfer. The question, therefore, remains, how the contiguous land holder who is not a party to the transfer, who is not entitled to get a notice of such transfer like a co-sharer can exercise that right or be asked to exercise such right within four months from the date of transfer about which he has got no knowledge? There are numerous instances where taking advantage of this particular provision the stranger transferee keeping the fact of transfer concealed deprives the contiguous land owner his statutory right of pre-emption and ultimately thereby defeating the purpose of the law of pre-emption, which purpose is to prevent sub-division and fragmentation of the holding and also preventing the stranger to put his steps into the family land. But contiguous Rayot thus has never any positive knowledge about the fact of transfer to a stranger. In my considered opinion, the position of a contiguous land holder is nothing better than that of a non-notified co-sharer. So, if the statute extends the benefit of limitation of three years from the date of knowledge to a non-notified co-sharer, definitely the principle of equity and natural Justice demand that similar benefit should Page: 294be extended to a contiguous land bolder. The law of pre-emption creates a valuable statutory right in favour of the co-sharer as well as a contiguous land holder. But such right becomes ineffective in case of a contiguous land holder as the Statute limits the period of limitation to four months from the date of transfer turning Justice into mockery. For example, if a person transfers a portion of his holding at Patna and the document of transfer is registered at the Office of the Registrar of Assurance, Calcutta and after such registration or transfer the transferee does not take any step to take possession and in this way one year is passed, and thereafter the stranger transferee takes physical possession of the land so transferred; the contiguous land holder of that plot will be deprived of his right of pre-emption as he would not be able to know about the transfer within one year and as such he would not be able to file the pre-emption petition within four months from the date of such transfer. Thus, this particular statutory provision of four months contains the seeds of fraud. The statutory provision can easily be defeated by an act of private person with immunity. Therefore, to meet the ends of Justice the same benefit of limitation of three years from the date of knowledge as in the case of non-notified co-sharer should be extended to the holder of the contiguous land in the matter of exercising the right of preemption. This view was also enunciated in case of (4) Chandrasekhar v. Vaidyanath reported in AIR 1982 Calcutta at page 6. It is well-settled that the legislature never creates any law which is infructuous on provides an easy handle to a scheming person to defeat the intention of legislature by avoiding the statutory provision by indigenous ingenuinity. Accordingly, it is held that the learned Munsif i.e the Trial Court has served the true purpose of Justice by condoning the delay in filing the pre-emption case and extending the benefit of limitation of three years from the date of knowledge of the contiguous land holder. I do not like to interfere with that finding. Rather, the finding of the learned Appellate Court on this particular point is more mechanics and devoid of the principle of natural Justice. As such, that finding is overruled. It is also held that the petitioner is entitled to get the order of pre-emption on the basis of purchase in 1966. In the result, the impugned order passed by the learned Appellate Court as well as by the Trial Court dismissing the prayer for pre-emption both are set aside. The case should go down to the learned Appellate Court for deciding the matter afresh in the light of the observation made above as expeditiously as possible. The Revisional application is thus disposed of.

3. S.K.G