Calcutta High Court (Appellete Side)
Gour Hari Das vs Smt. Jharna Rani Das on 4 September, 2024
1
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
C.O. 2306 of 2017
Gour Hari Das
Vs.
Smt. Jharna Rani Das
For the petitioner :Mr. Jayanta Das, Adv.
Ms. Soumita Ghosh, Adv.
For the Opposite Party :Mr. Prasenjit Mukherjee, Adv.
Heard On :07.08.2024, 08.08.2024,
30.08.2024
Order On : 04.09.2024
Bibhas Ranjan De, J. :
1. This revision application was filed under Article 227 of the
Constitution of India challenging the judgment and order dated
30.03.2017 passed by Ld. Additional District Judge, 2 nd Court
Contai, in connection with Misc. Appeal No. 4 of 2016 wherein
Ld. Judge affirmed the order dated 28.08.2015 passed by the
Ld. Civil Judge (Junior Division), 1st Court, Contai.
2. The Judicial Misc. Case no. 5 of 2012 was initiated on an
application under Section 8 of the West Bengal Land Reforms
Act, (for short WBLR Act) and that application was allowed.
3. The order passed by Ld. Civil Judge (Junior Division) in J.
Misc. Case No. 5 of 2012 was assailed in misc appeal no. 4 of
2016 wherein Ld. Additional District Judge set aside the order
dated 28.08.2015 passed in J. Misc. Case no. 5 of 2012.
4. Ld. Counsel, Mr. Jayanta Das, appearing on behalf of the pre-
emptor/ petitioner herein has contended that the claim of pre-
emption on the ground of co-sharer ship was an issue before
the Trial Court as well as appellate Court.
5. Accordingly Ld. Counsel appearing on behalf of the petitioner
has submitted that issue of co-sharer is pending before the
Larger Bench of this Court and the instant revision application
cannot be taken up for disposal prior to disposal of the pending
issue of co-sharership by the Larger Bench of this Court.
6. Ld. Counsel, Mr. Das has submitted that though there was a
pleading on behalf of the petitioner/pre-emptor claiming pre-
emption as a co-sharer as well as adjoining plot owner but the
Ld. Counsel appearing on behalf of the petitioner/pre-emptor
not pressed the issue of co-sharer at the time of argument
which can not bind his client/petitioner herein.
7. In support of his contention, Mr. Das has taken assistance of
the following cases:-
Electronics Corporation of India Ltd. And others vs.
Secretary, Revenue Department, Govt. of Andhra
Pradesh and others reported in (1999) 4 Supreme Court
Cases 458
Central Council for Research in Ayurveda and Siddha
and another reported in (2001) 5 Supreme Court Cases
Himalayan Coop. Group Housing Society vs. Balwan
Singh and others reported in (2015) 7 Supreme Court
Cases 373
8. In the case of Electronics Corporation of India Ltd (supra)
Mr. Das, Ld. Counsel has highlighted the following
paragraphs:-
"20. Learned counsel then submitted that in any
event, the recovery of non-agricultural assessment in
respect of the said land could not have been effected
from the appellant Company by reason of the
application of the principle of promissory estoppel. In
this behalf he referred to a letter dated 7-2-1967
addressed by the Under-Secretary to the Government of
India to the Secretary of the Government of Andhra
Pradesh, Industries Department, in regard to the
"transfer of land to the Department of Atomic Energy for
the location of the electronics plant and other plants".
The letter stated that it had been agreed by the State
Government that this land would be exempt from the
levy of tax under the Act "irrespective of whether the
plants are managed departmentally or through a public
sector undertaking". The letter requested that
"notifications exempting the lands already handed over
to the Department of Atomic Energy or to be handed over
in future from levy of tax under Andhra Pradesh Act 14
of 1963, while vesting in the Department of Atomic
Energy or in public sector projects would also require to
be issued". The issuance of the same was, therefore,
requested. In reply, the Deputy Secretary of the
Government of Andhra Pradesh, Industries Department,
stated on 17-10-1967 that "no separate notification is
required exempting the land given to the Atomic Energy
Department for establishment of Atomic Energy Complex
at Hyderabad from payment of non-agricultural
assessment under the A.P. Non-Agricultural Assessment
Act so long as the units are run by the Government of
India in public sector". It was contended by learned
counsel that the appellant Company had acted upon this
promise. Accordingly, the State Government was bound
by its promise and was estopped from going back upon
it.
21. There are two short answers to this contention.
In the first place, there can be no estoppel against a
statute. In the second place, the letter dated 17-10-1967
needs to be carefully read. It says that no notification
was required for exempting the land from payment of
non-agricultural assessment "so long as the units are
run by the Government of India in public sector". The
appellant Company is a separate and distinct legal
entity that runs its own industry. The letter dated 17-10-
1967 cannot be read as promising exemption to
companies, though their shares be held wholly by the
Union of India."
9. Next Mr. Das has relied on paragraphs no. 12, 13 & 14 of the
case of Central Council for Research (supra) which are as
follows:-
"12. In the instant case, the selection was made by
the Departmental Promotion Committee. The Committee
must have considered all relevant facts including the
inter se merit and ability of the candidates and
prepared the select list on that basis. The respondent,
though senior in comparison to other candidates,
secured a lower place in the select list, evidently
because the principle of "merit-cum-seniority" had been
applied by the Departmental Promotion Committee. The
respondent has no grievance that there were any mala
fides on the part of the Departmental Promotion
Committee. The only contention urged by the respondent
is that the Departmental Promotion Committee did not
follow the principle of "seniority-cum-fitness". In the
High Court, the appellants herein failed to point out that
the promotion is in respect of a "selection post" and the
principle to be applied is "merit-cum-seniority". Had the
appellants pointed out the true position, the learned
Single Judge would not have granted relief in favour of
the respondent. If the learned counsel has made an
admission or concession inadvertently or under a
mistaken impression of law, it is not binding on his
client and the same cannot enure to the benefit of any
party.
13. This Court in Uptron India Ltd. v. Shammi
Bhan [(1998) 6 SCC 538 : 1998 SCC (L&S) 1601 : AIR
1998 SC 1681] pointed out that a wrong concession on
question of law made by counsel is not binding on his
client and such concession cannot constitute a just
ground for a binding precedent.
14. Therefore, even if the appellants had mistakenly
contended in the High Court that the principle of
seniority-cum-fitness was to be followed for promotion to
the post of Research Officer, the departmental rules
clearly show that the promotion was in respect of a
"selection post" and the promotion was to be made on
the basis of the inter se merit of the eligible candidates.
In that view of the matter, the respondent was not
entitled to get promotion to the post of Research Officer
on the strength of her seniority alone. The seniority list
prepared by the Departmental Promotion Committee
was not challenged by the respondent on other grounds
and we also do not find any ground to assail that select
list. Thus, the writ petition is liable to be dismissed by
setting aside the orders made therein and in the writ
appeal arising therefrom. Therefore, the appeal
succeeds and is allowed, however, without costs."
10. Before parting with, Mr. Das has highlighted paragraph
no. 22 of the case of Himalayan Coop. Group Housing
Society (supra) wherein it was held that:-
" 22. Apart from the above, in our view lawyers are
perceived to be their client's agents. The law of agency
may not strictly apply to the client-lawyer's relationship
as lawyers or agents, lawyers have certain authority
and certain duties. Because lawyers are also
fiduciaries, their duties will sometimes be more
demanding than those imposed on other agents. The
authority-agency status affords the lawyers to act for
the client on the subject-matter of the retainer. One of
the most basic principles of the lawyer-client
relationship is that lawyers owe fiduciary duties to their
clients. As part of those duties, lawyers assume all the
traditional duties that agents owe to their principals
and, thus, have to respect the client's autonomy to make
decisions at a minimum, as to the objectives of the
representation. Thus, according to generally accepted
notions of professional responsibility, lawyers should
follow the client's instructions rather than substitute
their judgment for that of the client. The law is now well
settled that a lawyer must be specifically authorised to
settle and compromise a claim, that merely on the basis
of his employment he has no implied or ostensible
authority to bind his client to a compromise/settlement.
To put it alternatively that a lawyer by virtue of
retention, has the authority to choose the means for
achieving the client's legal goal, while the client has the
right to decide on what the goal will be. If the decision in
question falls within those that clearly belong to the
client, the lawyer's conduct in failing to consult the client
or in making the decision for the client, is more likely to
constitute ineffective assistance of counsel."
11. Per contra, Ld. Counsel, Mr. Prasenjit Mukherjee,
appearing on behalf of the pre-emptee/ opposite party has
submitted that the issue of co-sharer was not pressed by the
petitioner/preemptor in both the Trial Court as well as the
Appellate Court. It is further submitted that the issue of co-
sharer, accordingly, was never dealt with either by the Trial
Court or by the Appellate Court. Therefore, it is contended that
pendency of issue of co-sharer before the Larger Bench of this
Court cannot stand in the way of disposal of the instant
revision application wherein only issue of claiming pre-emption
on the ground of adjoining plot owner is under challenge.
12. In support of this contention, Mr. Mukherjee has relied
on a couple of cases:-
State of Maharashtra vs. Ramdas Shrinivas Nayak and
another reported in (1982) 2 Supreme Court Cases 463
Himalayan Coop. Group Housing Society vs. Balwan
Singh and others reported in (2015) 7 Supreme Court
Cases 373
13. Mr. Mukherjee through the case of Ramdas Shrinivas
Nayak (supra) has tried to shift the attention of this Court in
his favour by specifically relying on paragraph no. 4 which
runs as follows:-
"4. When we drew the attention of the learned Attorney-
General to the concession made before the High Court,
Shri A.K. Sen, who appeared for the State of
Maharashtra before the High Court and led the
arguments for the respondents there and who appeared
for Shri Antulay before us intervened and protested that
he never made any such concession and invited us to
peruse the written submissions made by him in the High
Court. We are afraid that we cannot launch into an
enquiry as to what transpired in the High Court. It is
simply not done. Public policy bars us. Judicial decorum
restrains us. Matters of judicial record are
unquestionable. They are not open to doubt. Judges
cannot be dragged into the arena. "Judgments cannot
be treated as mere counters in the game of litigation." [
Per Lord Atkinson in Somasundaram
Chetty v. Subramanian Chetty, AIR 1926 PC 136 : 99 IC
742] We are bound to accept the statement of the
Judges recorded in their judgment, as to what
transpired in court. We cannot allow the statement
of the Judges to be contradicted by statements at
the Bar or by affidavit and other evidence. If the
Judges say in their judgment that something was
done, said or admitted before them, that has to be
the last word on the subject. The principle is well-
settled that statements of fact as to what
transpired at the hearing, recorded in the
judgment of the court, are conclusive of the facts
so stated and no one can contradict such
statements by affidavit or other evidence. If a
party thinks that the happenings in court have
been wrongly recorded in a judgment, it is
incumbent upon the party, while the matter is still
fresh in the minds of the Judges, to call the
attention of the very Judges who have made the
record to the fact that the statement made with
regard to his conduct was a statement that had
been made in error. [ Per Lord Buckmaster in Madhu
Sudan Chowdhri v. Chandrabati Chowdhrain, AIR 1917
PC 30 : 42 IC 527] That is the only way to have the
record corrected. If no such step is taken, the matter
must necessarily end there. Of course a party may resile
and an appellate court may permit him in rare and
appropriate cases to resile from a concession on the
ground that the concession was made on a wrong
appreciation of the law and had led to gross injustice;
but, he may not call in question the very fact of making
the concession as recorded in the judgment."
14. Before concluding Mr. Mukherjee has relied on the
paragraph no. 8 of Himalayan Coop. Group Housing Society
(supra) which is to the effect that:-
"8. Being of the firm view, that, the appellant Society
had not authorised the learned counsel who had
appeared for them before the writ court to make any
concession in favour of the respondents had preferred
review petitions against the aforesaid common judgment
and order of the writ court. The said review petitions
were confined to the limited question of feasibility of
implementation of the directions issued by the writ court
in the impugned judgment and order. The High Court
after considering the merits of the review petitions has
dismissed the same by its order dated 12-10-2012."
Findings of this Court:-
15. In course of argument, Mr. Das has referred to a specific
portion of observation of the Trial Court in with J. Misc. Case
No. 5 of 2012 which is quoted below:-
"...Balai Chandra Das while in possession of that 23
decimals of property in the west, vide deed no.
7508/2011(Exhibit No. 7 & Exhibit No. F), sold 20
decimals of property out of 23 decimals in favour of O.P.
As such, petitioner being the adjoining plot owner
claimed pre-emption over that property. In the
application the petitioner though claimed also as co-
sharer but during argument he dropped this plea as
after the partition of their properties with his brother
they cannot be regarded as co-sharer. ..."
16. That apart, Mr. Das has further relied on a portion of
observation recorded in Misc. Appeal no. 4 of 2016 which is to
the effect that:-
"... It appears from the aforesaid provisions of law that
if a Portion or share of a plot of land of a raiyat is
transferred to any person other than co-sharer of a
raiyat in the plot of land then three categories of
persons, namely, bargadar, co-sharer of a raiyat in the
plot of land and any raiyat possessing adjoining land to
such plot of land may apply for pre-emption within
stipulated time and on fulfillment of other conditions as
have been mentioned in the said section.
Further, the term 'plot of land' of a raiyat is defined
under Section 2(6) of the Act which runs as follows:
"Co-sharer of a raiyat in a plot of land means a person,
other than the raiyat, who has an undemarcated
interest in the plot of land along with the raiyat". The
term 'raiyat' is defined under Section 2(10) of the Act
which runs as follows:
"Raiyat means a person or an institution holding land
for any process, whatsoever".
Section 8 (1) of the Act starts with the wordings" If a
portion of 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" which implies that the plot of
land is under co-sharership and if a portion or share of
a plot of a land of a raiyat is transferred to any person
other than a co-sharer of a raiyat then only the
bardadar at the first instance or co-sharer of a raiyat in
the plot of land in the second instance or lastly any
raiyat possessing land adjoining such plot of land may
apply for pre posting and concerned Court within time
stipulated in the said provision. Therefore, it seems to
me that if the plot of land has no co-sharer, the
bargadar or the other person whose status has been
mentioned in the said section cannot apply for pre-
emption under Section 8(1) of the Act. In other words,
the term "the co- sharer of a raiyat in a plot of land"
means when a plot of land belongs to more than a raiyat
each of them is a co-sharer of a raiyat in the plot of land
with the other, so long as such co-sharer has un-
demarcated interest. Therefore, if there is a partition
amongst the co-sharer raiyats in a plot of land and each
of them gets a demarcated portion of the said plot, then
he ceased to be a co-sharer of a raiyat in that plot of
land. So, it is only a co-sharer of a raiyat in that plot of
land who has an un-demarcated interest in that plot is
entitled to exercise the right of preemption under Section
8(1) of the Act.
In the present case, plot no.326 measuring 59
decimals of land originally belonged to Nabin Chandra
Pradhan and the entire plot was allotted to his son
Kirtibas by a deed of partition. Kirtibas on his turn sold
demarcated 36 decimals of land of Plot No.326 to the
respondent Gourhari Das and his brother Nityananda
Das by Extbt.4 and on the same day he sold
demarcated 23 decimals of land to Surendra Nath Das
by Extbt.A. Therefore, both Gourhari Das and
Nityananda Das ceased to be co-sharer in respect of Plot
No.326 as they purchased the demarcated share by
Extbt.4. Similarly, Surendra Nath Das also ceased to be
a co-sharer of Plot No,326 as he purchased demarcated
23 decimals of land of Plot No.326. Further, after demise
of Surendra Nath Das a partition deed (Extbt.6) was
executed amongst his legal heirs and by the said
partition deed Balai Chandra Das got the entire 23
decimals of land which was purchased by Surendrs
Nath Das by Extbt.A. When Balai Chandra Das sold the
suit plot i.e. 20 decimals to the present appellant by
Extbt.7 there was no co-sharer in respect of plot of land
held by him as a raiyat. If that be so, the submission of
the Ld. Lawyer appearing for the appellant seems to be
convincing that as there was no co-sharer in respect of
land held by Balai Chandra Das as a raiyat the
provision of Section 8(1) of the Act is not attracted. If the
land held by Balai Chandra Das as a raiyat was under
co-sharership and if Balai Chandra Das transferred a
share or portion to any person other than a co- sharer
raiyat in the plot in question, then right of preemption for
the respondent would accrue in absence of any claim of
bargadar or any co-sharer of the land held by Balai
Chandra Das.
In this context, I rely upon a judgment of the Hon'ble
High Court, Calcutta reported in 1970 C. L. J. 349. In
the said case, a question arose as to whether an
adjacent land owner can exercise the right of preemption
in case of transfer of a portion of a holding where there
was no co-sharers in the said holding. The Hon'ble Court
in reply to the said question has observed as follows:
"In view of the expression any person other than a
co- sharer", the section contemplates that the holding
must be hold under joint ownership and not under the
ownership of single individual. This is also apparent
from the first proviso to section 8 (1) of the Act, which
provides that a co-sharer raiyat will have preferential
right as against a contiguous tenant to have such
portion or share of the holding transferred to him, where
both of them are applicants at the same time. The
section restricts the owner's unfettered right of sale and
compels him to sell the share or portion of the holding
either to his co-sharer or to contiguous tenant, as the
case may be. It is now an accepted legal principle that
where the provision of a statute providing for right of
pre- emption shackles the freedom of transfer, the same
should be strictly construed and, unless a case strictly
within the provision, claim for pre-emption should not be
allowed. Section 8 (1) of the Act construed in the light of
of the aforesaid legal principle, leaves no room for doubt
that the holding, a share or portion of which is
transferred, must be hold under joint ownership. The
contention of Mr. Bhunia that even though there is no
cosharer of the holding the contiguous raiyat has the
right of pre-emption in case of a transfer of a share or
portion of the holding, is overruled".
The Hon'ble High Court has also relied upon the
aforesaid decision in the case of Subal Mondal versus
Gopal Chandra Mondal reported in 2014 (1) CHN (CAL)
706.
Be it mentioned that I have carefully considered the
case laws cited by the Ld. Lawyer for the respondent.
The said case laws have laid down the general principle
of pre-emption but those case laws are not applicable in
the facts and circumstances of the instant case.
In the aforesaid circumstances, I am of the view that as
the land held by Balai Chandra Das was not under joint
ownership, transfer of share or portion of the said plot
would not come under the pre-emption claim of the
respondent who is not even a contiguous land owner.
The Learned Trial Court has not considered the
aforesaid factual and legal aspect in his finding and as
such, the judgment passed by the Learned Trial Court is
liable to be set aside."
17. On the other hand, Mr. Mukherjee has referred to a
portion of argument advanced on behalf of the opposite party
therein in connection with the Misc Case No. 5 of 2012 which
stands as follows:-
"... (2)C.O. 1275 of 2013, this decision is not relevant to
the present case as here petitioner is not embarking on
the claim of pre-emption as co-sharer..."
18. Mr. Mukherjee has also relied on a portion of judgment
recorded in Misc. Appeal no. 4 of 2016 which runs as follows:-
"Ld. Lawyer of the respondent has drawn my attention
to the provision of Section 8, 2 (6) and 2(10) of the Act.
According to him, Section 8 of the Act has not restricted
the right of adjoining raiyat to claim pre-emption even if
there is no co-sharer in the plot of land. In respect of his
contention he has relied upon decisions reported in 90
C. W. N., 22, 2004 (4) CHN 349, 2005 (2) CHN 139 and
2014 (1) CH N (CAL) 706."
19. Mr. Das relying on the ratio decidendi of the cases
referred to above has submitted that a client is not bound by a
statement or admission made by his counsel in Court which he
or his lawyer was not authorized to make.
20. On the other hand, opposite party relying on the case of
Ramdas Shrinivas Nayak (supra) has submitted that it is
settled law that in case of such admission by the Ld. Counsel
appearing on behalf of his client, it is incumbent upon that
client, while the matter is still fresh in the minds of the Judges,
to call the attention of that very Judge who has made the
record to the fact that the statement made with regard to his
conduct was a statement that had been made in error. That is
the only way to have the record corrected.
21. Therefore, while Mr. Das dealt with the principle that a
client is not bound by a statement or admission made by his
counsel in Court, Mr. Mukherjee, on the other hand, dealt with
the principle regarding when a client is incumbent to take
steps for necessary correction in such case of erroneous
admission, before the very Judge.
22. But, in the observation of the Ld. Appellate Court in
Misc. Appeal no. 4 of 2016 referred to hereinabove, it has come
to my notice that although during recording his decision Ld.
Appellate Court pointed out that the issue of co-sharership was
waived by the respondent therein and remarked that the Ld.
Trial Court should have assigned specific reason in respect of
his findings but still continued to proceed with the issue of co-
sharership.
23. On the other hand, it is settled that if an issue is not
pressed in the trial court then the appellate court is bound to
decide only those issues that have been pressed before it. If an
issue is not raised in the Trial Court, the Appellate Court
typically cannot entertain it in accordance with the Principle of
Waiver of Rights. When a party does not press an issue before
the trial court, it is generally considered that they have waived
their right to raise that issue later. This principle is supported
by the observation that if an issue is not pressed, it is
presumed that the party has abandoned it.
24. In the light of the aforesaid discussion, it can be safe to
conclude that issues not pressed in the Trial Court cannot be
raised in the Appellate Court due to the principle of waiver.
25. But, even though the Appellate Court discussed about
the issue of co-sharership in spite of the same being not
pressed in the Trial Court, I cannot take into account the
observation made by the Appellate Court with special regard to
the issue of Co-sharership in the light of the expressed
observation made by the Hon'ble Apex Court in this regard in
the case of Ramdas Shrinivas Nayak (supra).
26. Therefore, at this stage, I am not inclined to subscribe to
the view of Mr. Das that the issue of co-sharer is already
involved in the Misc. Appeal being no. 04 of 2016.
27. In that view of the matter, it cannot be said that the
instant revision application cannot be taken up for hearing
while the particular issue of co-sharer is under consideration
before the Hon'ble Larger Bench of this Court.
28. Therefore, this Court is absolutely free from any clutches
to take up the instant revision application for hearing.
Accordingly, the instant revision application being no. C.O.
2306 of 2017 be listed for hearing on 25.09.2024.
29. All parties to this revisional application shall act on the
server copy of this order downloaded from the official website of
this Court.
[BIBHAS RANJAN DE, J.]
