Gaya Prosad Shaw vs Khagendra N Chakraborty

Mitra, J.—The petitioner sought to pre-empt the sale dated 3rd October, 1978 made by one Bankim Behari Shaw in respect of 11-5/8 decimals of land in Dag No. 697 appertaining to R. S. Khatian No. 135 in Mouza Bagpura. J.L. No. 202 under Police Station Ramnagar within the District of Midnapore, in favour of the opposite party, on the ground that the petitioner was a co-sharer in respect of the holding to which the said plot belonged and also on the ground of vicinage, u/s 8 of the West Bengal Land Reforms Act, 1955. The case as made out by the petitioner in his pre-emption application inter alia, was that the suit plot originally belonged to three persons namely, Kunja, Bankim and Rudra. Kunja had 8 annas share in the suit property while Bankim and Rudra had 4 annas share each therein. The petitioner had purchased the share of Rudra from the heirs of Rudra prior to the disputed sale and thus became a co-sharer in the suit plot along with Bankim and Kunja and hence he was entitled to pre-empt the subsequent sale made by Bankim in favour of the opposite party on 3rd October, 1978. The petitioner in his said application had further stated that the disputed land was mutually partitioned between the said three recorded owners and each of the said recorded owners was occupying his demarcated portion in the suit plot. The petitioner further stated that although the execution of the disputed sale was dated 3rd October, 1978 but registration of the same was complete on 10th November, 1981 when the said sale deed had entered into the volume-book of the registration office. The petitioner had no prior knowledge of the sale and for the first time came to know of the same on 20th October, 1982 when the opposite party tried to take possession of the disputed land. The said pre-emption application was filed on 19th November, 1982. The petitioner also filed an application u/s 5 of the Limitation Act along with the said application for pre-emption and stated that he was a non-notified co-sharer and as such the period of limitation for filing the said application would be three years from the date of knowledge. The opposite party entered appearance in the said pre-emption case which was registered as Judicial Miscellaneous Case No. 108 of 1982 of the First Court of the learned Munsif at Contai, Midnapore and filed his written statement denying and disputing the material allegations as made in the pre-emption application. The learned Munsif, by his Order No. 22 dated 14th December, 1985 dismissed the said application u/s 5 of the Limitation Act, inter alia, on the ground that the supporting affidavit was filed by the petitioner three years after the date of filing of the original application for condonation of delay and as such the affidavit dated 28th July, 1985 was not worthy of credence and the petitioner was also silent about the delay in filing the said affidavit after such a long time. Against the said order the petitioner moved this Court in revision and obtained the present Rule.

Mr. Pradip Chakraborty, learned Advocate appearing for the petitioner submits that since the petitioner was a non-notified co-sharer and since the application was also on the ground of vicinage, the time for filing the pre-emption application should be three years under article 137 of the Limitation Act from the date of registration of sale and as such the application u/s 5 of the Limitation Act was really misconceived and was filed as an abundunt caution. The application for pre-emption itself was in time and even if there was any delay, the delay was properly explained by the petitioner and the court below had acted with material irregularity in rejecting the said application u/s 5 of the Limitation Act.

Mr. Patra with Mrs. Ray appearint on behalf of the opposit party however, has contended before me that the petitioner cannot be a co-sharer in view of the Special Bench Judgment of this court reported in Madan Mohan Ghosh and Others Vs. Sishu Bala Atta and Others, and so far as the question of vicinage is concerned, the period of limitation has been fixed as four months from the date of transfer u/s 8(1) of the West Bengal Land Reforms Act, 1955 and that in a case where a pre-emptor seeks to pre-empt a sale on the ground of vicinage, Article 137 of the Limitation Act would not apply unlike in the case of a non-notified co-sharer. In support of his contention Mr. Patra relied on the decision reported in 1975 (1) CLJ 494 (Ashalata Bairagya & Anr. v. Gopal Chandra Chakraborty & Ors.), in which the Division Bench of this Bengal Land Reforms Act, (sic)1959 itself clearly specifies that the commencement of the period of limitation for making an application by an adjoining owner of the said period would be the date of expiry of 4 months from the date of such transfer. Unlike the other class of persons elegible to exercise the right Of purchase, namely, co-sharer tenants, section 8 makes no reference to sub-section (5) of Section 5 of the Act in the matter of the starting point of the period of limitation for making an application for the exercise of the right of purchase by a contiguous tenant. The right of purchase u/s 8 arises on trransfer of a portion or a share of the holding of raiyat to a person other than a co-sharer and the exercise of such right of pre-emption has not been made conditional or subject to the publication of the notice in terms of Section 5(4) of the Act, at least in the case of contiguous tenants. That being the position, it would not be wrong to proceed on the basis that upon registration of the deed, there was a transfer in favour of the petitioner who was not a co-sharer in the holding. From that point of time, the right to purchase accured to the contiguous tenants. In this case such right of purchase was not exercised by oposite party No. 1 within the period of 4 months from the date of transfer and as such the application for pre-emption was barred by limitation. The right conferred by Section 8 is a statutory right and such right 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 the case of co-sharers and also in the case of adjoining owners, it would not be right to read into the section something which is not there in order to given an extended period of time to the adjacent owners, for exercising their right of pre-emption. Therefore, in the case of an adjoining owner, the period of limitation is to be counted from the date of transfer and not from any other point of time. When Section 8 itself has prescribed four months limitation commencing from the date of transfer, there is no scope for invoking Section 137 of the Limitation Act, 1963.

Mr. Patra, further has contended that he had categorically denied that there was actual partition between the owners of the property as alleged by the petitioner, previously or subsequent to the transfer made by Rudra''s heirs in favour of the petitioner and in such a case it cannot be held that the opposite party was really holding a part of the disputed land as a contiguous owner.

Having heard the learned advocates for the respective parties, I find that there is such substance in Mr. Patra''s submissions. Undoubtedly, the petitioner cannot be held to be a co-sharer of the disputed land in view of the Special Bench decision in Madan Mohan Ghose v. Sishubala Atta (Supra), where it has been held inter alia, that after the enforcement of Chapter VI of the West Bengal Estates Acquisition Act and the vesting of interests of raiyats on and from April 14, 1956 corresponding to Baishakh 1, 1363 B.S., the co-sharer raiyets of a holding ceased to be co-sharers and each raiyat of the holding became a direct tenant under the State in respect of the land of that holding which he is entitled to retain under Sub-section (1) of Section 6 of the said Act. He is also not entitled to get protection of Article 137 and cannot also plead that no notice of transfer was served upon him as he was a contiguous owner, in view of the judgment in the case of Ashalata Bairagya v. Gopal Chandra Chakraborty (supra). On the ground of vicinage, an order for preemption should be made in respect of that plot or plots of land which is or are really contiguous to the plot or plots of land belonging to the applicant for pre-emption. The concept of pre-emption on the ground of vicinage has been introduced in the West Bengal Land Reforms Act, 1955. Such a concept was not to be found in the Bengal Tenancy Act. Reference may be made to the Division Bench decision of this Court in the case of Satish Chandra Kulia v. Kalipada Maity & Ors., reported in 1977 (2) CLJ 480. There is also no material on record before me to prove except a bare statement in the pre-emption application, which was denied by the opposite party in his written statement and/or objection, that the suit property was actually partitioned between the co-sharers previously or at any point of time and it has been held by this Court in the case of Kedarnath Panchadhoyee & Ors. v. Nagendra Nath Mahapatra & Ors., reported in 1980 (1) CLJ. 395 that in such a case it can not be said that any specific portion of the disputed holding is in possession of the pre-emptor and he is holding land adjoining the land transferred. The pre-emptor is, therefore, not entitled to pre-empt the land transferred in the present case on any acount as he is neither a co-sharer nor in possession of land adjoining to the land transferred.

Moreover, right of pre-emption is a weak right and it is not looked upon favourably by courts and, therefore, courts cannot go out of their way to help the pre-emptor. (Reference may be made to the decisions of the Supreme Court in the case of Bishan Singh and Others Vs. Khazan Singh and Another, and Radhakisan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and Others, ).

In view of my above findings, it cannot be said, that the impugned order suiters from any material irregularity inasmuch as since the petitioner had no valid claim of pre-emption either as a co-sharer or as contiguous owner even if the application u/s 5 filed by the petitioner was allowed, he was not ''entitled to get any relief in Misc. case No. 108 of 1982. Moreover, as far as the merits of the application u/s 5 of the Limitation Act are concerned, it is also hardly believable that a person who purchased land as far back as on 3rd October, 1978 and that too an agricultural land, will sit idle for more than four tears without taking possession of the same and will assert such right only on 20th October, 1982 as alleged by the petitioner in the said application. The delay, therefore, has not been properly explained in my view and there is not sufficient material before this court for condoning the delay. The Rule accordingly, is discharged without any order as to costs.

Let the records be sent down to the trial court as early as possible, (sic)it those have already been received by this court, along with a copy of this order.