Ashalata Bairagya vs Gopal Chandra Chakraborty

Chittatosh Mookerjee, J.—On June 7, 1966, one Kali Dasi Devi executed a sale deed in respect of 25 decimals of land in dag No. 610 and 47 decimals of land in dag No. 611 comprised in khatian No. 62, mouza Kashimpur, in favour of the present Petitioner for a consideration of Rs. 1,000 on the following date, that is, June 8, 1966, the said deed was registered in the office of the Sub-Registrar, Kalna. On April 6, 1967, the present opposite party No. 1, Gopal Chandra Chakravorti, claiming to be the owner of adjoining plots, filed an application u/s 8 of the West Bengal Land Reforms Act, 1955, before the Sub-Divisional land Reforms Officer, Kalna, for an order of pre-emption. The present Petitioner contested the said case.

The Sub-Divisional Land Reforms Officer by his order dated April 21, 1970, allowed the said application u/s 8 and made an order for pre-emption in favour of the opposite party No. 1. The learned District Judge, Burdwan, dismissed the appeal preferred by the present Petitioner against the said order of the Sub-Divisional Officer, Kalna and affirmed the order for pre-emption made in favour of the opposite party No. 1.

Mr. Habibullah, learned Advocate for the Petitioner, has made twofold submissions before us. The first submission of Mr. Habibullah was that the holding in question did not comprise of agricultural lands and at least, partly it was non-agricultural in character. We are unable to accept this submission made on behalf of the Petitioner. In this case, the transfer in question and also the application for pre-emption were made before the enactment of the West Bengal Land Reforms Amendment Act, 1972. Mr. Habibullah did not argue that the definition of the expression ''land'' in Section 2(7) of the Act as amended by the above West Bengal Act XII of 1972 would be applicable. Both the Sub-Divisional Land Reforms Officer as also the learned District Judge held the holding to be agricultural in nature. Therefore, we are unable to take any other view with regard to the nature and character of the land involved in the present proceeding. Thus, the first submission made on behalf of the Petitioner fails.

The second submission made on behalf of the Petitioner was that the instant application u/s 8 of the West Bengal Land Reforms Act having been filed more than four months after the date of the transfer in question the said application u/s 8 of the Act was barred by limitation. Having given our anxious consideration to the matter, we hold that this contention of the Petitioner should be up held. Section 8 of the Land Reforms Act confers right of pre-emption upon two classes of persons, namely, co-sharers and contiguous tenants. In the instant case, we are not concerned with the right of purchase of a co-sharer tenant in the event of a portion or share of a holding of a raiyat is transferred to any other person other than a co-sharer in the holding. Accordingly, it is unnecessary for our purpose to consider the period of limitation, if any, in case of a co-sharer tenant who is not notified of such transfer in terms of Sub-section (5) of Section 5 of the West Bengal Land Reforms Act. For the same reason, we refrain from expressing any opinion as to whether in the event of such a non-notified co-sharer the provisions of Article 137 of the Limitation Act, 1963, would be applicable or not. In case of a contiguous tenant Section 8 expressly provides that he may exercise his right to purchase u/s 8 within four months from the date of transfer of a portion or a share of a holding of a raiyat to any person other than a co-sharer in the holding. Thus, Section 8 itself clearly specifies that the commencement of the period of limitation for making an application by an adjoining owner would be the date of transfer and the other termini of the said period would be expiry of four months from the date of such transfer. Unlike the case of other class of persons eligible to exercise right of purchase, namely, co-sharer tenants, Section 8 makes no reference to Sub-section (5) of Section 5 in the matter of the starting point of the period of limitation for making an application for exercise of the right of purchase by a contiguous tenant.

Mr. Mukherjee, learned Advocate for the opposite party, drew our attention to the endorsement on the certified copy of the impugned kobala in favour of the present opposite party which, inter alia, stated that the registration had been effected under the provision of the Indian Registration Act read with Section 26C of the Bengal Tenancy Act. Mr. Mukherjee further submitted that the certified copy of the sale deed did not indicate that the provisions of Section 5 of the West Bengal Land Reforms Act were complied with. We are unable to accept the submission of Mr. Mukherjee that even in case of a contiguous owner the period of limitation for making an application u/s 8 would be calculated with reference to the date on which a copy of the notice is published in the locality in terms of Sub-section (4) of Section 5. The right of purchase u/s 5 arises by transfer of a portion or a share of the holding to a person other than a co-sharer and exercise of such right of pre-emption by adjoining owners has not been made conditional or subject to the publication of the notice in terms of Section 5(4) of the Act. Mr. Mukherjee did not argue before us that in the event of such publication in terms of Section 5(4) is not made there would be no effective or valid transfer in the eye of law. Therefore, we must proceed on the basis that upon registration of the document in question, there was a transfer in favour of the Petitioner who was not a co-sharer in the holding. From the said point of time right to purchase accrued to the contiguous tenants. In this case such right of purchase was not exercised by the opposite party No. 1 within 3 period of four months from the date of transfer in question and therefore, the said application was barred by limitation.

Mr. Mukherjee, learned Advocate for the opposite party, submitted before us that in the event of Section 8 is construed in the manner above, the same may cause hardship and well neigh defeat, in a large number of cases, the claim of the adjoining owners to exercise right of preemption under the above provision. The right conferred u/s 8 is a statutory one and therefore, it has to be exercised strictly in accordance with the provisions of Section 8 and obviously no question of equity arises. Secondly, when Section 8 itself expressly provides two different starting points for computation of limitation in case of co-sharers and in case of adjoining owners, we are not prepared to read into the section something which is not there in order to give an extended period of time to the adjoining owners for exercising their right of pre-emption. It was rightly pointed out that, in any event, some period of time is bound to lapse between the date of presentation of a document of transfer for registration and the actual publication in the locality in terms of Section 5(4). Section 5(4) does not also prescribe any time limit within which such publication is to be made. Therefore, as presently advised, we are unable to hold that in case of an adjoining owner the period of limitation is to be counted not from the date of transfer but from some other point of time.

In the instant case, the learned District Judge purported to apply Article 137 of the Limitation Act, 1963. In our view, the same was clearly erroneous. Presumably, the learned District Judge was thereby seeking to apply the ratio decidendi of the decision of the Special Bench decision in Asmatali Sharip v. Mujarali Sardar 52 C.W.N. 64. In the first place, Section 26F of the Bengal Tenancy Act in the context of which the above Special Bench decision was delivered did not contemplate right of an adjoining owner to exercise right of preemption. Secondly, the principal point for consideration in Asmatali''s case was whether there was any period of limitation in case of an exercise of a right of pre-emption u/s 26F of the Bengal Tenancy Act by a non-notified co-sharer tenant and if so, which v was the appropriate provision applicable. In Asmatali''s case the Special Bench, inter alia, found that an application contemplated by Section 26F of the Bengal Tenancy Act should be regarded as an application under the CPC or, at any rate, as an application for the making of which the CPC gave authority. Accordingly, it was held that an application by a non-notified co-sharer for pre-emption u/s 26F of the Bengal Tenancy Act would be governed by Article 181 of the Limitation Act, 1908 and the Applicant had three years time from the date of transfer when the right to apply accrued.

In the instant case, the opposite party No. 1 was an adjoining owner for whom Section 6 of the West Bengal Land Reforms Act itself prescribes four months'' limitation commencing from the date of transfer. Therefore, there could be no occasion, in any event, for invoking the provision of Article 137 of the Limitation Act, 1963. Therefore, in this case, we propose not to examine the further question regarding the scope of Article 137 of the Limitation Act, 1903 and that of Article 181 of the Limitation Act, 1908, are same or not. The said question which does not arise for decision in the present case is, accordingly, left open. We may also observe that the application filed by the opposite party No. 1 was clearly barred by limitation. We may further observe that he did not even attempt to make out any case for enlargement of time or extension of time or for suspension of time under the relevant provisions of the Limitation Act. Therefore, we need not advert to the said aspects.

Although the point regarding the constitutional validity of Section 8 was taken in the application under Article 227, the said point was not urged at the time of final hearing of the Rule. We, accordingly, make this Rule absolute, set aside the orders of the learned District Judge and also of the Sub-Divisional Land Reforms Officer and dismiss the application u/s 8 of the West Bengal Land Reforms Act filed by the opposite party No. 1.

In the circumstances of the case, the parties will bear their respective costs throughout. The opposite party No. 1 will be entitled to withdraw the sum deposited by him along with his application u/s 8 of the Act.

Let the records go down as expeditiously as possible.

S.K. Bhattacharyya, J.

I agree.