Hrishikesh Chandra Ghorai vs Banabehari Paira

Siddhartha Roy Chowdhury, J

This application under Article 227 of the Constitution of India challenges the order passed by learned Additional District Judge, 3rd Court, Midnapore in Misc. Appeal No. 127 of 1997, affirming thereby the order passed by learned Civil Judge, Junior Division, 1st Court, Contai, Midnapore in J. Misc. Case No. 102 of 1981 under Section 8 of the West Bengal Land Reforms Act, 1955.

For the sake of convenience the parties to this proceeding would be referred to as they have been arrayed in the said case.

Fact of the case in brief is that by a registered katala dated 19th March, 1979, the petitioner Hrishikesh Chandra Ghorai (since deceased) purchased the properties comprised within Dag No. 97, 98, 99 and 106 under Khatian No. 185 measuring about 27 decimal of land from Amarendra Nath Paira. It is adverted further that Maheswar Paira acquired the property by virtue of a deed of partition executed on 23rd March, 1957 and became absolute owner of the same. On 21st April, 1968 Maheswar Paira executed a Nirupan Patra which was registered on 10th May, 1968. By executing the instrument Maheswar Paira transferred the property to his two sons, Amarendra Nath Paira and Debendra Nath Paira with definite demarcation, by which 28 decimal of land was allotted to Amarendra Nath Paira, which was acquired by Hrishikesh Chandra Ghorai by purchase and 27 decimal of land was given to Debendra Nath Paira. Debendra Nath Paira filed an application under Section 8 of the West Bengal Land Reforms Act in exercise of his right of preemption as co-sharer as well as adjoining land owner. It is contended by Debendra Nath Paira that there is a pond within the plot no. 99 which is a joint property.

Learned Trial Court after considering the evidence on record was pleased to allow the prayer of the preemptor Debendra Nath Paira and right title interest acquired by the stranger purchaser was directed to be devolved upon Debendra Nath Paira.

The purchaser Hrishikesh Chandra Ghorai made an unsuccessful attempt to get the said order of preemption reversed by preferring Misc. Appeal No. 127 of 1997.

Hence this application under consideration.

Mr. Tanmoy Mukherjee, learned Counsel representing the petitioner assails the impugned judgment. According to Mukherjee, learned Courts below failed to appreciate the facts of the case in its proper perspective. It is contended that the vendor of the petitioner sold and transferred his entire share in respect of property and not a portion or share in the plot of land. It is further contended that the petitioner was a bargardar under the transferee Amarendra Nath Paira. According to Mr. Mukherjee, the preferential right of preemption as given in the statute is to be followed in its letter and spirit and the claim of bargardar cannot be defeated, rather it should be given precedence over the claim of any other person. It is submitted by Mr. Mukherjee that Amarendra Nath Paira since had no co-sharer in the plot of land he transferred; he cannot be expected to transfer the property to a co-sharer in the plot of land.

Drawing my attention to the provision of Section 8, Mr. Mukherjee submits that statute says if a portion or a share of land of a raiyat is transferred to any person other than co-sharer of a raiyat in the plot of land then the bargardar, thereafter co-sharer and lastly, the adjoining plot holder raiyat may exercise their right of preemption. Therefore, existence of a co-sharer in the plot of land is a crucial component, sine qua non in order to exercise the right of preemption. Where there is no co-sharer in the plot of land, Section 8 of the West Bengal Land Reforms Act, 1955 cannot be said to have any application. That apart, Mr. Mukherjee submits that the vendor of the petitioner Amarendra Nath Paira since transferred the entire plot and not a portion or share, provision of Section 8 of the West Bengal Land Reforms Act, 1955 cannot be pressed into service to exercise a weak right of preemption.

To buttress his point Mr. Mukherjee relies upon the judgement of Co-ordinate Bench in the case of SUBOL MONDAL VS. GOPAL CHANDRA MONDAL reported in 2014 (1) CHN (Cal) 706 wherein it is held :

“20. … It has already been established that pre-emptor Gopal Chandra Mondal was not a co-sharer of the land of Sankar Nath Mondal and that there was no co-sharer in the land of Sankar Nath Mondal which was purchased by him from common owner Akshay Kumar Mondal. If that be the position then pre-emptor Gopal Chandra Mondal cannot exercise the right of pre-emption under Section 8 of the Act of 1955 even though he was an adjacent land owner of the plot of land, a portion of which was sold out by Sankar Nath Mondal to the petitioner pre-emptee by a kobala dated 25th of August, 2003. It appears that learned lower court of appeal failed to take note the principles of applicability of the right of pre-emption under Section 8 when there was no co-sharer in the plot of land, in its true perspective. As a result, the order impugned is liable to be set aside.”

Refuting such contention of Mr. Mukherjee, Mr. Haradhan Banerjee, learned Counsel representing the opposite party submits that the petitioner acquired the entire share of his predecessor-in-interest, Amarendra Nath Paira which is inclusive of his share in the pond and pond is not partiable. Therefore, there is every reason to hold that the predecessor-in-interest of the petitioner transferred the share or portion of a plot of land not his entire share. It is further contended by Mr. Banerjee that even if it is assumed that the petitioner has acquired the entire share of his predecessor-in-interest by purchase, then also the opposite party is entitled to an order of preemption. In view of the judgement of Hon’ble Apex Court in CHHANA RANI SAHA VS. MANI PAL @ KALTU PAL in Civil Appeal No. 5909 of 2009.

According to Mr. Banerjee, plain reading of the provision of Section 8 by no stretch of imagination can lead any man of ordinary prudence to hold that in absence of any co-sharer in the plot of land transferred, right of preemption cannot be exercised under Section 8 of the West Bengal Land Reforms Act. Mr. Banerjee further submits if the argument of Mr. Mukherjee is accepted then the language of Section 8 would have been incorporated by the legislature in a different manner. The language of the statute would have been “If a portion or share of a plot of land of a co-sharer of a raiyat is transferred other than a co-sharer raiyat in the plot of land.” According to Mr. Baneerjee, Court can interpret the provision of law but Court cannot read into the statute something which is not there and Court cannot legislate.

To appreciate this lis in its proper perspective we need to understand the meaning of co-sharer of a raiyat in the plot of land as defined under Section 2(6) of the West Bengal Land Reforms Act, land as defined under Section 2(7) and raiyat is defined under Section 2(10) of the West Bengal Land Reforms Act, 1955.

Sections 2(6), 2(7) and 2(10) of the West Bengal Land Reforms Act, 1955 enunciate :

“2. Definitions.—In this Act, unless there is anything repugnant in the subject or context,—

[(6) "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]

(6A) "encumbrance" means any lien, easement or other right or interest created by a raiyat on his [plot of land] or in limitation of his own interest therein, but does not include the right of the bargadar to cultivate the land of the [plot of land];

[(7) "land" means land of every description and includes tank, tank-fishery, fishery, homestead, or land used for the purpose of livestock breeding, poultry farming, dairy or land comprised in tea garden, mill, factory, workshop, orchard, hat, bazar, ferries, tolls or land having any other sairati interests and any other land together with all interests, and benefits arising out of land and things attached to the earth or permanently fastened to anything attached to earth;]

[(10) "raiyat" means a person or an institution holding land for any purpose whatsoever;]”

Admittedly, the father of the predecessor-in-interest of the petitioner as absolute owner of the properties transferred the same with definite boundaries in faovur of two of his sons. Amarendra Nath Paira, the vendor of the petitioner was one of them. Therefore Debendra Nath Paira could not have been considered as co-sharer of a raiyat in the plot of land transferred as none of them has undemarcated interest. But here in this case admittedly the petitioner also purchased share of his predecessor-in-interest in a pond comprised within plot no. 99.

Since land as defined under the West Bengal Land Reforms Act, 1955 includes tank, I feel no hesitation to hold that the petitioner by acquiring the property has elevated himself to the status of the co-sharer so far plot no. 99 is concerned.

Section 8 of the West Bengal Land Reforms Act, 1955 says :

“8. Right of purchase by co-sharer or contiguous tenant.-(1) If a portion or share of a [plot of land of a raiya] is transferred to any person other than a [co-sharer of a raiyat in the plot of land], [the bargadar in the plot of land] may, within three months of the date of such transfer, or] any [co-share of the raiyat in the plot of land] may, within three months of the service of the notice given under sub-section (5), or any raiyat possessing land [adjoining such plot of land] may, within four months of the date of such transfer, apply to the [Munsif having territorial jurisdiction,] for transfer of the said portion or [share of the plot of land] to him, subject to the limit mentioned in [section 14M,] on deposit of the consideration money together with a further sum of ten per cent of that amount:

[Provided that if the bargadar in the plot of land, a [co-sharer of raiyat in a plot of land] and a raiyat possessing land [adjoining such plot of land] apply for such transfer, the bargadar shall have the prior right to have such portion or [share of the plot of land] transferred to him, and in such a case, the deposit made by others shall be refunded to them:]

[Provided further that where the bargadar does not apply for such transfer and] a co-sharer of a raiyat in the plot of land] and a raiyat possessing land [adjoining such plot of land] both apply for such transfer, the former shall have the prior right to have such portion or [share of the plot of land] transferred to him, and in such a case, the deposit made by the latter shall be refunded to him:

[Provided also] that as amongst raiyats possessing lands [adjoining such plot of land] preference shall be given to the raiyat having the longest common boundary with the land transferred.

(2) Nothing in this section shall apply to-

(a) a transfer by exchange or by partition, or

(b) a transfer by bequest or gift, or hiba-bil-ewaz, or

(c) a mortgage mentioned in section 7,

(d) a transfer for charitable or religious purposes or both without reservation of any pecuniary benefit 12 [for any individual, or] 13[

(e) a transfer of land in favour of a bargadar in respect of such land if after such transfer, the transferee holds as a raiyat land not exceeding one acre (or 0.4047 hectare) in area in the aggregate. Explanation. All orders passed and the consequences thereof under sections 8, 9 and 10 shall be subject to the provisions of Chapter IIB.]

(3) Every application pending before a Revenue Officer at the commencement of section 7 of the West Bengal Land Reforms (Amendment) Act, 1972 shall, on such commencement, stand transferred to, and disposed of by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every such application shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provision of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972.”

Though in the first blush the submission made by Mr. Mukherjee, interpreting the provision of Section 8 of the West Bengal Land Reforms Act, appeals to the sense of the Court but upon second thought it fails to stand to the reason. Upon plain reading of provision of Section 8, it appears that if any raiyat transfers a portion or share in the plot of land, right of preemption can be invoked under Section 8 of the West Bengal Land Reforms Act, 1955. The transfer can only be kept beyond the ambit of the rigor of Section 8 of the West Bengal Land Reforms Act if the property(ies) is transferred to co-sharer in the plot of land. Otherwise, such transfer is always subject to the provision of Section 8 of the Land Reforms Act, 1955. The bargardar in such an event shall have the precedence to exercise his right of preemption over co-sharer and adjoining plot holder. In absence of any co-sharer in the plot of land such right of preemption is always available with the adjoining plot holder. Absence of co-share in the plot of land would only provide a better opportunity to the adjoining plot owner inasmuch as such adjoining plot owner shall not have to wait for the co-sharer to exercise his right of preemption. After the bargardar, the co-sharer shall have a chance to exercise his right of preemption to acquire the property so transferred. In fact, the adjoining landowner will jump the queue if there is no co-sharer in the plot of land.

In my humble opinion, absence of co-sharer in the plot of land will not fetch any benefit to the preemptee/transferee of the plot of land and he will not be able to escape or circumvent the preferential right of preemption available to bargardar or adjoining land owner.

In CHHANA RANI SAHA VS. MANI PAL @ KALTU PAL in Civil Appeal No. 5909 of 2009 Hon’ble Apex Court held :-

“(7) …..That is to say, if a land is held by two co-sharers and one of the co-sharers seeks to transfer a portion or share belonging to him to another person, the other co-sharer may claim a right of pre-emption. But this, however, does not exhaust the entire section. A similar right of pre-emption is also conferred on a raiyat, who possesses an adjoining plot of land, This is the appellant's case. There is no dispute that the appellant is a raiyat possessing adjoining plot of land and was entitled to assert his right of pre-emption. In fact he was rightly allowed the ownership of the land in question by the trial Court, since it was found the vendor did not give due notice of sale of the land to the appellant and, in fact, did not wish to sell the land to the appellant. This aspect of the matter has been completely overlooked by the High Court, which has decided the case only on the basis that the vendor did not transfer a portion or share of the land in question and the appellant was not a co-sharer.”

Hon’ble Supreme Court was pleased to uphold the right of a pre-emption conferred on a raiyat possessing an adjoining plot even when entire share is transferred. In this conspectus the judgement in Subal Mondal (supra) cannot be of any aid to the petitioner.

Mr. Mukherjee submits that in CHHANA RANI SAHA VS. MANI PAL @ KALTU PAL in Civil Appeal No. 5909 of 2009, Hon’ble Apex Court did not consider the issue of applicability of Section 8 in absence of a co-sharer in the plot of land transferred. The judgement therefore, can be said to have been passed in sub silentio. The concept of sub silentio confers jurisdiction upon this Court to decide the issue upon interpretation of Section 8 of the West Bengal Land Reforms Act.

In DELHI MUNICIPAL CORPN. VS. GURNAM KAUR reported in AIR 1989 SC 38 Hon’ble Supreme Court held :-

“11. ……Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. explains the concept of sub silentio at p. 153 in these words:

"A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.”

Since from attending facts of the case it is admitted that the petitioner by the deed in question has acquired undivided share in respect of one of the plots of land he purchased, the opposite parties being the legal heirs of Debendra Nath Paira being the adjacent landowner, in my view are entitled to get an order under Section 8 of the West Bengal Land Reforms Act, 1955, particularly when the petitioner despite claiming to be the bargardar under Amarendra Nath Paira his vendor, he failed to prove such fact.

In my humble opinion, the judgement of Hon’ble Supreme Court in Chhana Rani Saha (supra) is not silent as to the applicability of Section 8 of the Act, in absence of co-sharer in the plot of land transferred, though not explicitly eloquent.

I fail to inspire myself to accept the interpretation of Section 8 of the Act as made by Mr. Mukherjee. My view is thus in conflict with the view of the Co-ordinate Bench in Subal Mondal (supra).

It would not be appropriate on the part of this Court to express a view contrary to what has already been taken in the judgement in Subal Mondal vs. Gopal Chandra Mondal reported in 2014 (1) CHN (Cal) 706 by a Co-ordinate Bench of this Court. Judicial discipline demands that the matter be decided by a Larger Bench.

Let the record be placed before the Hon’ble the Chief Justice for appropriate direction in view of the dissent having been made in this case.