Ayub Khan vs Mahadeb Dolui

Harish Tandon, J.—Those four revisional applications arise from a proceeding initiated u/s 8 of the West Bengal Land Reforms Act, at the instance of the different purchasers against the common petitioner challenging the judgment of affirmance passed by the Additional District Judge, Fast Track Court, Uluberia in Miscellaneous Appeal No. 4 of 2008. Originally, the property in question, comprised in R.S. Khatian No. 434 and R.S. Dag No. 1024 under Mouza - Karatberia, J.L. No. 64, Police Station - Uluberia, District - Howrah measuring 103 Satak i.e. 1 Acre 3 Satak belonged to one Promotha Nath Ghosh since deceased. The said owner died intestate leaving behind four sons namely Ashoke Kumar Ghosh, Amiya Kumar Ghosh, Ajit Kumar Ghosh and Ashim Kumar Ghosh. In the L.R. Record, the said R.S. Khatian No. 434 was recorded to have been proportionately divided in the names of the said four heirs, in the manner, that the Ashoke Kumar Ghosh is holding 23 Satak under Khatian No. 45 Dag No. 837, Amiya Kumar Ghosh under Khatian No. 39 Dag No. 837 measuring 23 Satak of land, Ajit Kumar Ghosh under Khatian No. 3 Dag No. 837 measuring 25 Satak of land and Ashim Kumar Ghosh under Khatian No. 47 Dag No. 837 measuring 26 Satak of land. By oral settlement and/or arrangement, the aforesaid four owners settled among themselves and the Ajit Kumar Ghosh was agreed to hold 39 Satak of land, Ashim Kumar Ghosh 31 Satak of land, Ashoke Kumar Ghosh 16� Satak of land and Amiya Kumar Ghosh shall hold 16� Satak of land out of the total area of land namely 1 Acre 3 Satak.

The said Ajit Kumar Ghosh sold, transferred and conveyed the said 39 Satak of land to Ayub Khan by executing the sale deed on September 27, 2001 which was registered in the office of the Registrar on November 7, 2001. Simultaneously, therewith the other three brothers also executed the sale deed on the same date which were also registered on the same date divesting their entire shares in favour of the transferees. The said transferees after acquiring the said property are possessing the same and also doing cultivation therein.

Four different and separate application u/s 8 of the West Bengal Land Reforms Act are filed by the opposite party against the said transferees of the four brothers praying for an Order for preemption, on the plea, that he is recorded bargadar in respect of the properties of the said four brothers. On the basis of the aforesaid applications, four separate cases were registered and have been separately heard and were ultimately allowed by the Trial Court. The four separate and distinct appeals filed by the pre-emptees are also dismissed and the pre-emptees of each case have filed the aforesaid four revisional applications before this Court.

The learned Advocate appearing for all the petitioners in the aforesaid revisional applications challenges the finding of both the Courts in contending that the application for pre-emption is hopelessly barred by limitation. It is further submitted that the pre-emptor is not the bargadar and, therefore, is not entitled to claim the preemption u/s 8 of the West Bengal Land Reforms Act. It is strenuously argued that the entire plot of land was sold on one day by four different deeds and, therefore, the application for preemption is not maintainable. Lastly it is submitted that when a dispute is raised, whether the preemptor is a bargadar or not, the Court is in competent to decide the said dispute and should have referred the said issue u/s 21(3) of the said Act to the Revenue Officer.

In spite of the service, no one appears on behalf of the preemptor. Therefore, this Court proceeds to decide the matter in his absence.

The preemption application is founded on the sole assertion that the preemptor being a bargadar is entitled to the preemption u/s 8 of the West Bengal Land Reforms Act. The Trial Court held that the limitation for making an application u/s 8 of the said Act commences from the date of the completion of the transfer and not from the date of the execution thereof.

Though feebly but the petitioner raises a point that the Limitation should reckon from the date of an execution and not from the date of the completion of the transfer. The aforesaid point is settled and does not require a moment''s scrutiny. The catena of judgment rendered on the aforesaid point laid down that the Limitation as enshrined u/s 8 of the said Act would start from the date of the completion of the transfer and not from the date of the execution thereof.

In Gosto Behari Das Vs. Smt. Rajabala Dei and Another, the Division Bench held "the date of accrual of the right of preemption is not the date of execution of the deed of sale or any earlier deed, but the date when the deed of sale is registered and title effectively passes". The said proposition was further reiterated in case of Sabitri Bala Ray Vs. Gouri Sankar Dutta, where it is held that even, where the execution was done prior to the date of presentation of the deed for registration, the time would commence for the purpose of limitation as enshrined u/s 8 of the said Act from the date of the completion of the transaction.

In the instant case, both the Courts concurrently found that the transaction was completed on February 03, 2002 and the application for preemption was filed on March 22, 2002 i.e. well within the period of three months as provided under the said provision.

Therefore, this point does not require any further scrutiny and the point which is raised is not tenable.

Further point is taken that section 8(2) of the said Act excludes the right of the bargadar to claim preemption if after the transfer of the land, it exceeds 1 Acre in area in aggregate. Section 8(1) of the said Act provides that if a portion or share of a plot of land of a raiyat is transferred to any person other than the co-sharer in the plot of land, the bargadar in the plot of land may within the time prescribed therein, apply to the munsif, having territorial jurisdiction for transfer of the said portion or share of plot of land to him, subject to the limit mentioned in section 14M on deposit of the consideration money together with further sum of at the rate 10% of that amount. Section 14M provides a ceiling limit which should be considered at the time of dealing an application for preemption u/s 8 of the said Act, as the same is subject thereof. The Court while passing an Order of preemption should consider the actual quantum of land which the preemptor holds on the date of an application and should not have left it upon for the Revenue Officer to decide the same. The word "subject to the limit prescribed in section 14M" controls the right of the preemptor and unless there is a recording of satisfaction, the application for preemption should not have been decided by the Court. Therefore, there should be a determination whether the land sought to be preempted if allowed, would exceed the ceiling limit. Section MM was introduced u/s 8 of the said Act. Subsequently, by the West Bengal Land Reforms (Amendment Act, 1972) Act, the determination relating to ceiling area is required to be determined u/s 14T(3) of the said Act by the Revenue Officer, section 14T(3) of the said Act bars the jurisdiction of the Civil Court to decide or deal with any question or to determine any matter required to be decided or dealt with or to be determined by the Revenue Officer or other specified authority. Conferment of the jurisdiction upon the Munsiff, having territorial jurisdiction to deal with an application u/s 8 of the said Act as a Court of the special jurisdiction and, therefore, comes within the ambit of the Civil Court in all respect. There were the divergences of opinion whether the Court should allow an application for preemption if it would exceed the ceiling limit provided u/s MM of the said Act. The Division Bench in case of Ismail Sekh vs. Fasiruddin Mondal have set at rest, the aforesaid anomalous situation in observing that the "expression subject to the limit mentioned in u/s 14M" in section 8(1) qualifies the nature of right which would acquire by the preemptor in respect of the said plot of land and does not require the Munsif to determine the ceiling before making an Order for preemption, but it should harmoniously be construed to mean that the said Order of preemption shall be subject to the limitations prescribed by section 14M of Chapter-II of the Act.

Therefore, this Court also does not find any merit in the submission of the petitioner that the preemption application should be dismissed as the land sought to preempt would exceed the ceiling limit.

This Court finds force in the submission of the petitioner that the Court cannot usurp the jurisdiction to decide the dispute whether the preemptor is a bargadar or not. The preemptor has filed the L.R. record of right no. 39 which is marked exhibit 3 in respect of the Dag No. 1024, in support of his contention that he has been recorded as bargadar in respect of 25 Satak of land comprised in the said Dag. The Trial Court recorded that in a finally published record of right, more precisely, in the Montabyo Column, the name of the preemptor is recorded as "Dakhalkar" and have proceeded to hold that it is synonymous and/or akin to bargadar. The Appellate Court has merely confirmed the said finding without recording its own.

A person found in possession does not necessarily mean that he is a bargadar. Although, it may lead to one of such presumption but where serious dispute is raised relating to the status of the preemptor as bargadar and such dispute cannot be ruled out on the admitted document but requires an inquiry, the Court should not have taken up the task upon himself but should have referred such question to the prescribed authority for determination u/s 21(3) of the said Act which also bars the jurisdiction of the Civil Court to entertain such question.

A person may possess the land on different status other than the bargadar which has been defined u/s 2(2) of the said Act to mean a person who under the system generally known as Adhi, Barga or Bhag cultivates the land of another person on condition of delivering a share of produce of such land to that person. It further appears that an application u/s 21 of the said Act was taken out, but there is no reflection in the Order of both the Courts below whether the same was dismissed or is kept pending. Since this Court has found that a serious dispute relating to the question whether the preemptor is a bargadar or not and merely on the basis of the recording in the L.R. record of right as ''Dakhalkar'' does not lead to a supposition that he is a bargadar. Therefore, such question should have been referred to the prescribed authority u/s 21(3) of the said Act and the Trial Court substantially erred in law in allowing the application for preemption. This Court, therefore, finds that such important matter has been dealt by both the Courts below in a casual and routine manner and, therefore, Order impugned in this revisional application is liable to be set aside.

There is another aspect in the matter. A pure question of law has been raised before this Court that the entire plot of land was sold by execution of four different deeds and, therefore, the preemption u/s 8 of the said Act does not lie. This Court finds that the said point was neither canvassed before both the Courts below nor there is any discussion in the impugned judgment on the said issue. Although, the point could have decided by this Court treating the same, as the pure question of law, as the necessary facts already exist but, this Court refrain from doing the same as this Court thinks that the question relating to the status of the preemptor as bargadar should have been referred to the prescribed authority and the Court after receiving the decision should have proceeded to decide the matter.

This Court proposes to remand the matter to the Trial Court for passing an appropriate Order for referring the dispute relating to the determination of the status of the preemptor as bargadar to the prescribed authority u/s 21(3) of the said Act and after having communicated with the decision by the said prescribed authority, shall decide the application for preemption whether, the same cannot be allowed or not. While doing so, the Trial Court shall further determine the question relating to the transfer of the entire land in its entirety as well.

The revisional application, therefore, succeeds in the light of the observations made hereinabove. The judgment and Order of both the Courts below are hereby set aside.

The matter is remanded to the Trial Court to reconsider the said application in the light of the observations made hereinabove.

However, there shall be no Order as to costs. Urgent photostat certified copy of this Order, if applied for, be given to the parties on priority basis.