Dwarka Nath Bayen vs Satan Bayen

P.N. Mookerjee, J.—This appeal is by the Plaintiff and it arises out of a suit for a declaration that an order passed by the Collector u/s 4 of the West Bengal Alienation of Land (Temporary Provisions) Act, 1954 (W.B. XXXVII of 1954), in respect of the disputed land was void, inoperative, illegal" and without jurisdiction and for a perpetual injunction to restrain the Defendant from interfering with the possession of the Plaintiff therein on the basis of that order.

The suit has been dismissed by both the Courts below. Hence, this Second Appeal by the Plaintiff.

The relevant facts lie within a short compass. The Plaintiff pre-empted the disputed transfer of the suit property from the original transferee u/s 26F of the Bengal Tenancy Act and was in possession of the same at the date of the relative application u/s 4 of the above Act. Notice was issued to him of the said proceedings and, in pursuance of the same, he appeared therein and, eventually, the Collector''s order directed restoration of the disputed land to the Respondent No. 1 on payment of certain compensation to the Plaintiff-Appellant as determined by the Collector.

The first contention raised before us in support of this appeal is to the effect that the Plaintiff being the pre-emptor would not come within the meaning as description of ''transferee'' under the aforesaid Section 4.

We are unable to accept this argument. As pre-emptor he becomes entitled to the right, title and interest of the original transferee under the relative transfer and would be a representative or'' successor of the said transferee within the meaning of Section 2(5), so as to attract the same with full effect. Indeed, it is not deputed that, if the original transferee had transferred the disputed property by a private sale or transfer, the said subsequent transferee would come within the mischief of the aforesaid Section 4 read with Section 5. If that be so, there is no question that the pre-emptor also would come within its mischief as, from what we have said above, the pre-emptor cannot stand in any different position from a private transferee in regard to the disputed matter. Indeed, the only difference between the two cases would be that, in the case of a private transferee, it would be a voluntary transfer, while in the case of pre-emption it would be a statutory transfer or compulsory transfer under the statute, but that difference would not materially affect the preemptor''s representative or similar representative character. We would, therefore, reject the above submission in support of this appeal.

The other point, which was sought to be raised by Mr. Sarkar in support of this appeal, was to the effect that the Collector''s order does not show on what materials he was satisfied under Clause (b) of Section 4 that the impugned transfer would come within the purview of the said section. We do not think, however, that that is a matter open for consideration in this suit. From the order of the Collector it is quite evident that'' he was satisfied on the point and his satisfaction cannot be collaterally challenged. This point, also, in support of the appeal would, accordingly, fail over the above point of view being fully supported by Section 7 of the Act.

In the result, all the contentions urged in support of this appeal would fail and this appeal would be dismissed.

There will be no order for costs in this Court.

Amiya K. Mookerji, J.

I agree.