Calcutta High Court (Appellete Side)

Rash Behari Ghosh & Ors vs Bhabani Prasad Ghosh & Ors on 10 August, 2022

     IN THE HIGH COURT AT CALCUTTA
                 Civil Revisional Jurisdiction
                        (Appellate Side)
                           C.O. 141 of 1997
                                  with
                         I.A. No. CAN/7/2020
                      (Old No. CAN/1408/2020)

                      Rash Behari Ghosh & Ors.

                                   Vs.

                  Bhabani Prasad Ghosh & Ors.

Before: The Hon'ble Justice Arijit Banerjee

For the Petitioners             : Mr. Pinaki Ranjan Mitra, Adv.
                                  Mr. Jaydip Basu, Adv.
                                  Mr. Sugata Mukhopadhyay, Adv.

For the Opposite party          : Mr. Rwitendra Banerjee, Adv.
                                  Mr. Shibasis Chatterjee, Adv.
                                  Mr. Sandip Kundu, Adv.

Heard On                        : 09.12.2021, 24.02.2021, 10.03.2021
                                  12.05.2022 & 23.06.2022

CAV On                          : 14.07.2022

Judgment On                     : 10.08.2022


Arijit Banerjee, J.:


1.

This revisional application is directed against an order dated October

4, 1996, passed by the learned Additional District Judge, 2nd Court, Howrah

in Misc. Appeal no. 166 of 1992 arising out of an order dated May 29, 1992

passed by the learned Munsif, Additional Court, Uluberia in L.R. Case no.

59 of 1988.

2. The relevant facts of the case are as follows.

3. Plot no. 1121 of Mauza Banitabla, P.S. - Uluberia, District - Howrah,

was sold by One Ajit Ghosh and Ors. to petitioner nos. 1 to 8 and the

predecessors-in-interest of the other petitioners by sale deed dated

December 12, 1985. One Tarak Das Ghosh filed L.R. Case no. 1 of 1987 in

the Court of learned Munsif, Uluberia, Howrah, under Section 8 of the West

Bengal Land Reforms Act, 1955, to pre-empt the said sale on the ground

that he is a co-sharer raiyat and also on the ground of vicinage, claiming

that he had the longest common boundary with the disputed land. Although

the land in question was sold in favour of the petitioners at and for a

consideration of Rs. 6,000/-, Tarak deposited only Rs. 1,100/- claiming that

Rs. 6,000/- shown in the sale deed was an inflated figure. The petitioners

herein contested the said L.R. Case by filing written statement wherein they

denied the material averments made in the application for pre-emption.

4. The said case was transferred to learned Munsif, Additional Court,

Uluberia and was renumbered as L.R. Case no 59 of 1988. By an order

dated May 29, 1992, the learned First Court allowed the application for pre-

emption.

5. The petitioners filed an appeal against the said order before the

learned Additional District Judge, 2nd Court, Howrah, being Misc. Appeal

No. 166 of 1992. By a judgment and order dated October 4, 1996, the

appellate Court dismissed the appeal filed by the present petitioners. That

order is the subject matter of challenge in the present revisional application.

6. I have heard learned Counsel for the respective parties at length and

have given anxious consideration to the arguments advanced on behalf of

the parties.

7. The learned First Court negated the contention of the pre-emptor that

he was a co-sharer. However, it was held that the pre-emptor was a

boundary man and the purchasers were strangers. The prayer for pre-

emption was allowed on the basis of vicinage. The pre-emptor or

subsequently his successors-in-interest did not challenge the finding of the

First Court that the pre-emptor was not a co-sharer. Such finding has

therefore attained finality. The First Court also negated the pre-emptor's

contention that the amount of Rs. Six thousand shown in the sale deed as

consideration for the disputed land was an inflated amount. However, the

pre-emptor was allowed to deposit the balance consideration money plus 10

per cent of the said amount within two months from the date of the order.

8. The Appellate Court affirmed the order of the Trial Court. It held that

the appellants could not establish their plea that the disputed land is

separated by a canal from the land of the pre-emptor.

9. Before me, in this revisional application, the following points were

urged by learned Advocate for the petitioners:-

(i) No right of pre-emption arose in this case as the under sold his

entire land to the purchaser.

(ii) In the absence of the pre-emptor depositing the entire

consideration money shown in the impugned sale deed plus 10 per

cent thereof, the application for pre-emption was not maintainable.

(iii) The learned Munsif had no jurisdiction to entertain or allow

the application and then permit the plaintiff/pre-emptor to deposit

the balance sum of money within 2 months.

10. Learned Advocate for the opposite party disputed each of the above

contentions and submitted that the orders of the Trial Court and the

Appellate Court do not call for intervention.

11. In my considered opinion, each of the points argued on behalf of the

petitioner has merits. Section 8 of the West Bengal Land Reforms Act, 1955

(in short, 'the said Act') in so far as the same is relevant for the present

purpose reads as follows:-

"8. Right of purchase by co-sharer or contiguous tenant.-(1) If a

portion or share of a [plot of land of a raiyat] is transferred to any

person other than a [co-sharer of a raiyat in the plot of land], [the

bargadar in the plot of land] may, within three months of the date

of such transfer, or] any [co-sharer of a raiyat in the plot of land]

may, within three months of the service of the notice given under

sub-section (5) of Section 5, or any raiyat possessing land

[adjoining such plot of land] may, within four months of the date of

such transfer, apply to the [Munsif having territorial jurisdiction,]

for transfer of the said portion or [share of the plot of land] to him,

subject to the limit mentioned in [section 14M,] on deposit of the

consideration money together with a further sum of ten per cent of

that amount:"

12. A bare perusal of the aforesaid provision would show that it

contemplates transfer of "a portion or share of a plot of land" of a raiyat. If

the entire plot of land is transferred, the right of pre-emption would not

arise under Section 8. If any authority is required for this proposition, one

may refer to Sri Bhuban Chandra Samanta v. Jamini Bhusan Kar &

Ors.: 1970 CLJ Page. 349 and also Apurba Sarkar v. Arabinda

Adhikary: 2019(5) CHN (CAL) 464.

13. The decision in the case of Saranan Mondal & Anr. v. Bejoy

Bhushan Ghosh: AIR 1979 CAL 174 is an authority for the proposition

that before an application under Section 8 of the 1955 Act may be

entertained, whether on the ground of the petitioner being a co-sharer in the

plot of land or on the ground of he possessing adjoining land, it is

incumbent on him to show that there was transfer of either a portion or

share of a plot of land of a raiyat. At paragraph 6 of the reported judgment,

the Court held as follows:-

"6. The learned lawyer for the petitioner contended that the Court

of appeal below was wrong in holding that as the opposite party

No. 1 also had land adjoining the lands sought to be pre-empted,

an application under Section 8 of the Land Reforms Act could not

lie. Before I discuss the question raised on behalf of the petitioner

and those raised on behalf of the Opposite Party No. 1, I consider

it proper to point out that both the Courts below as also the

learned lawyers representing the parties lost sight of one very

important matter which alone should have resulted in failure of

the application under Section 8 of the West Bengal Land Reforms

Act. A perusal of the application under said Section 8 would show

that nowhere in the four corners of the application the petitioner

did make out the case that there was transfer of a portion or share

of the holding of a raiyat. Before an application under said section

8 may lie whether on the ground of the petitioner being a co-sharer

in the holding or on the ground of his possessing land adjoining

such holding, it is incumbent on the petitioner to show that there

was transfer of either a portion or share of a holding of a raiyat.

The word "holding" has been defined by Section 2(6) of the said Act

as meaning the land or lands held by a raiyat and treated as a unit

for assessment of revenue. In the preset case, there is no averment

in the application under Section 8 stating that there was a transfer

of a share or portion of a holding of a raiyat. The application

proceeded on the basis that O.P. No. 2 transferred some property

mentioned in the schedule thereto and the schedule simply shows

that Plots Nos. 2055, 2048 and 2075 measuring respectively .09,

.05 and .04 cents of P.S. Dubrajpur Mouza Simlakuri, Khaitan No.

109 were the lands transferred. Thus, when the very vital

requirement of Section 8 of the said Act was not found complied

with, the application under Section 8 should have failed on that

ground."

14. The words 'plot of land' came to be substituted for the word 'holding'

by Act (XXXI) of 2000 with retrospective effect from 07.08.1969. But that

would make no difference and the principle of law would remain the same.

15. The other two issues are connected in as much as if the learned

Munsif could not have entertained the application for pre-emption, the

question of allowing the application and then permitting the plaintiff/pre-

emptor to deposit the balance sum of money within 2 months, could not

arise.

16. The point as to whether or not deposit of the consideration amount

mentioned in the impugned transfer deed plus 10 per cent of such amount

is a pre-condition for maintainability of an application for pre-emption

under Section 8 of the 1955 Act, is no more res integra. The Hon'ble

Supreme Court, in its decision in the case of Barasat Eye Hospital and

Ors. v. Kaustabh Mondal: (2019) 19 SCC 767, at paragraph 35 of the

reported judgment held as follows:-

"35. As we have discussed above, once the time period to exercise

a right is sacrosanct, then the deposit of the full amount within

the time is also sacrosanct. The two go hand-in-hand. It is not a

case where an application has been filed within time and the

amount is deficient, but the balance amount has been deposited

within the time meant for the exercise of right. We are saying so as

such an eventuality may arise, but in that case, the right under

the application would be triggered off on deposit of the amount

which, in turn, would be within the time stipulated for triggering

the right. That not having happened, we are of the view that there

cannot be any extension of time granted to the respondent now, to

exercise such a right. This is, of course, apart from the fact that

this speculative exercise on behalf of the respondent has

continued for the last fourteen years, by deposit of 50% of the

amount."

It is clear from the above aforesaid judgment that unless the plaintiff/pre-

emptor deposits the requisite amount as mandated by statute, his

application for pre-emption under Section 8 of the 1955 Act would not be

maintainable.

17. A learned Judge of this Court in the case of Sk. Abdul Odud Ali v.

Emanulla Khan and Others: 2021 SCC OnLine Cal 2078 has interpreted

the aforesaid decision of the Hon'ble Supreme Court as laying down that the

pre-condition of deposit of the transaction amount along with statutory

interest of 10 per cent for maintainability of a pre-emption application

applies only when the application is on the basis of vicinage. The learned

Judge differed with the decision of another learned Judge in the case of

Smt. Kamala Rani Roy & Ors. v. Sri Sambhu Sen & Ors.: 2021(1) ICC

740 (Cal.) and has referred the following question to a larger Bench;-

"Whether a pre-emption application under Section 8 of the West

Bengal Land Reforms Act, 1955, on the ground of co-sharership,

can be rejected at the outset as not maintainable if the application

is accompanied by a deposit of an amount less than the

consideration shown in the sale deed sought to be pre-empted,

along with the statutory interest of 10%, on the allegation that the

price shown in the deed was inflated and the actual consideration

money paid according to the pre-emptor is the lesser amount

deposited with the pre-emption application and that no notice

under Section 5 of the said Act was served on the co-sharer/pre-

emptor."