Krishna Chandra Pramanik and Others vs Hari Sadhan Sahana

Anil K Sen, J.—These two revisional applications arise out of as many pre-emption proceedings. Since both of them involve a common question as to whether an application for pre-emption filed on the basis of an inchoate right, should be dismissed on the ground of non-maintainability notwithstanding the fact that such a right matured as an effective right pending the proceeding, we have heard them together. There is no dispute about the material facts and they may be set out shortly. In C. 0.2141 of 1981, the petitioners claiming themselves to be co-sharers fited an implication for pre-emption u/s 8 of the West Bengal Land Reforms Act against the opposite party in respect of a sale in his favour of. 48 acres of land appertaining to Plot No 646 Khatian 682 of Mouza Badanganj. P. S. Goghat, District-24 Pargenas The sale deed was executed on June 14,1974 and the same was presented for registration on June 15 1974. The registration was made complete u/s 61 of the Registration Act on April 12, 1976, hut in the meantime on August 26, 1974 the application for pre-emption was tiled Though the application came up for hearing long after the date of completion of registration, the learned Munsif by his order dated May 31, 1979, dismissed the application solely on the ground that the application as filed was premature. On an appeal, the learned Subordinate Judge affirmed the said order of the learned Munsif. According to the learned subordinate judge. The fact that registration was made complete pending the proceeding is inconsequential because he thought on the authority of the decision of this court in the case of Kalipada Ghosh v. Dulal Chandra Ghosh 82 CWN 951, the right to pre-empt must exist both on the date of the application and on the date of the order. Feeling aggrieved, the pre-emptors have preferred the present revisional application.

In C. R. 326 of 1980, the petitioner purchased a portion of R. S. Plot No 1523 Khatian 169 Mouza Kutubpur Fulbari, P. S. English bazar Maida on April 30, 1976, and on that date the sale deed was presented for registration. Such registration, however was not made complete until 1981 and in the meantime on April 25, 1977, the opposite party filed the application for pre-emption u/s 24 of the West Bengal Non-Agricultural Tenancy Act. Such application was allowed on contest by the learned Subordinate Judge by an order dated May 8, 1978, and an appeal by the preempted petitioner failed and was dismissed on August 9,1979. Feeling aggrieved the pre emptea has obtained the above Rule on a revisional application raising a point that since registration was not complete when the application was filed or the orders were passed by the courts below, the application should have been dismissed. in this rule another point on merits had also been raised which would be referred to hereinafter in our judgment.

In view of the facts set out hereinbefore, it is undisputed that on the date the respective two applications for pre-emption were filed, the registration of the respective sale deeds had not been completed in terms of section 61 of the Registration Act. It is also not in dispute that a right of pre-emption either u/s 8 of the West Bengal Land Reforms Act or u/s 24 of the West Bengal Non-Agricultural Tenancy Act accrues when the land is transferred and that such transfer can be made only by a registered document. Such being the position it is now well settled that such right of pre-emption does not become mature until the registration is made complete on fulfilment of all the formalities u/s 61 of the Registration Act. Reference may be made to the decisions of the Supreme Court in the cases of Ram Saran Lall and Others Vs. Mst. Domini Kuer and Others, and Hiralal Agrawal etc. Vs. Rampadarath Singh and Others, etc., and the decision of this court in the case of Malay Kumar -v-Rabindra Nath 1977(1) CLJ 92. It must, therefore, be held that in both the cases now under consideration, the pre-emptors had no accrued right to claim pre-emption on the day they filed their respective applications for pre-emption. But registration being made complete pending the proceeding the further question that now arises for our consideration is what is the effect thereof. While according to Mr. S. Roy-chowdhury appearing for the pre-emptee-petitioner in the second case, notwithstanding such competition, the application should be dismissed as it was initiated without any right or locus standi by the pre-emptor, according to Mr. Sakti Nath Mukherjee appearing for the pro-emptor petitioner in the first case there is no justification for dismissing the application on Such a ground when the right itself gets matured pending the application and that right is sought to be enforced by the application. The controversy raised undoubedly deserves serious consideration.

Though under either of the two statutes conferring right of pre-emption now under consideration, the right of pre emption arises only on an effective transfer yet there is no express statutory bar on the tribunal entertaining an application for enforcement of such a right except upon effective completion of such transfer. If, as in the present cases, an application for pre-emption had been filed at a time when the registration had not been made complete, the application must be held to be based upon an inchoate right liable to be dismissed as such if it is not matured by the time it is to be disposed But there is no reason to hold that such presentation attaches such an indelible infirmity to the application that notwithstanding the subsequent maturity of the right, the same must be thrown out. If by throwing out such an application, the court enforces the pre-emptor to file a fresh one, what really is the difference in substance between such a step and the step of treating the application as an effective one only from the date of maturity of the right.

Strong reliance is placed by Mr. Roy-chowdhury on the decision of the Supreme Court in the case of Radhakisan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and Others, in support of his contention that the court should not take cognizance of subsequent maturity of the right, if the application itself was filed and the proceeding initiated at a time the applicant had no right. It is said that the Supreme Court overruled a similar prayer made in the above case on behalf of the pre-emptor on the ground that the right of pre emption being a weak right and not being looked upon with favour by courts, the court will not go out of its way to help the pre-emptor. In the case before the Supreme Court the facts were somewhat different. There pre-emption was applied for when the parties had merely entered into an agreement for sale. Though several months there after pending the proceeding, the sale was executed and registered, Supreme Court refused to take cognizance of such sale because-on the application such sale was not being pre-empted and further because in the mean while there being conversion of the land from agricultural to non-agricultural site, that would stand in the way of claiming any right of pre-emption. Though incidentally it was also observed that since the right of pre-emption is not favoured by court, it would not go out of its way to help the plaintiff that must be read in the particular context of facts.

Mr. Mukherjee on the other hand relied on the Supreme Court decison in the case of Hiralal Agrawal etc. Vs. Rampadarath Singh and Others, etc., where the application for preemption though filed on a day when the registration was yet to be made complete, the interim order u/s 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act was passed after completion of registration and such an order was upheld by the Supreme Court. According to Mr. Roychowdhury this decision cannot support Mr. Mukherjee because in the case the Supreme Court on review of facts found that the application it self was not actually entertained by the Collector before completion of the registration though it was formally presented in Collector''s office on a prior date. But it has been rightly pointed out by Mr. Mukherjee that such a finding had to be recorded because under the Rules, the Collector could not entertain the application unless a copy of the registered sale deed was annexed thereto.

To us it appears that the point now raised before us has not been covered by either of the decisions of the Supreme Court relied on by either of the parties and should be decided on its own merits. Before we proceed to do so, we should, however, consider the reason assigned by the learned Subordinate Judge in high order under challenge in CO. 2141 of 1981. He relied on the decision of this court in the case of Kalipada Ghosh v- Dulal Chandra Ghosh (supra) where a learned single Judge had held that a person claiming preemption in order to succeed must have the right of pre-emption not only at the time of sale of the land by the owner but also at the time of institution of the suit for preemption and also at the time of passing the decree. In that case the learned Judge was merely following the principle made clear by Sanderson, C. J, & Mookerjee, J, in the case of Nuri Mian -v- Ambica Singh 20 CWN 1099. But the real import of these decisions is that the pre-emptor must maintain his qualification entitling him to pre-emptor from the date of the sale upto the date of decree or order for pre-emtion (Vide Bhagwan Das (Dead) by Lrs. and Others Vs. Chet Ram, ). But these decisions are no authority for the proposition that where the pre-emptor maintains such a qualification throughout but by mistake or otherwise presents his application or plaint on a premature date, such an application or plaint cannot be dealt with as one presented after the date of maturity By doing so, the court is not really dispensing with fulfilment of any of the requirements so laid down as erroneously thought of by the learned Subordinate Judge.

The point raised, in our view, must be decided in the light of principles underlying Order 7 Rule 7 of the Code of Civil Procedure. In the case of Raicharan v. Biswanath 20 CU 107 it was laid down by Sir Asutosh Mukherji that though the general rule is that a suit must be tried in all its stages on the cause of action as it existed at the date of its commencement, there is an exception to that Rule. A court may take notice of events which have happened since the institution and afford relief to parties on the basis of altered conditions when it is shown that the original relief claimed has by reason of subsequent change of circumstances become in appropriate or that it is necessary to base the decision of the court on the altered circumstances in order to shorten the litigation or to do complete justice between the parties. This view finds support from the decision of the Federal Court in the case of Lachmeshwar P. Sukul. Keshawarlal Chowdhury AIR 1941 SC 84 and the decision of the Supreme Court in the case of Dalchand and Others Vs. Delhi Improvement Trust (Now Delhi Development Authority) New Delhi, . Mr. Mukherjee drew our attention to a number of decisions of different High Courts to show how relief had been given to the plaintiff even in cases where his right to the relief had not matured on date of the institution of the suit but it so matured during the pendency of the suit. These decisions are obviously based on the above principle. It being a rule of procedure to be followed by the court, we find no reason why it should not be equally applicable to proceedings for pre-emption. Though it was contended by Mr. Roychowdhury that sucn a principle should not be extended to help a pre-emptor since his is a weak right not favoured by courts, we are unable to accept such a suggestion. However weak the right may be, it is a right conferred by the statute and is not meant to be frustrated on unsubstantial technicalities. In cases like the present one, if the claim of the pre-emptor is not otherwise barred on the date of its maturity pending the proceeding, by throwing out the application merely on the ground that such a right was not matured on the date of commencement of the proceeding, the court would only encourage a fresh proceeding and lengthen the litigation, No other useful purpose would be served thereby. This precisely should be avoided as pointed out by Sir Asutosh Mookerji in the case of Raicharan v. Biswanath (supra). In the case of Nuri Mian (supra) this court look into consideration subsequent events in a pre-emption case though against the pre-emptor. The same procedure was adopted by the Privy Council in the case of Hans Nath v. Ragho Pershad Singh, AIR 1932 PC 57 where the Privy Council approved the view that the validity of the claim of pre-emption must be judged on facts existing on the date when a decree has to be passed. Again in the case of Siddheswari Prosad v. Gendu Mia CLJ 27 an application for pre-emption u/s 26F of the Bengal Tenancy Act was filed without the necessary deposite which was to be made under subsection (2) at the time of making the application. Such deposit, however, being made on a subsequent day but within the period of limitation for making the application for preemption, a question was raised whether the application should be dismissed for the deposit not being made simultaneously with the filing of the application; D. N, Mitter. J, held that it should not be so dismissed but the application should be treated to be one made on the date of deposit. This view was approved by R. C, Miner, J. in the case of Sachindra v. Trailakyanath 40 CWN 1023. We think the same principle should be followed in cases like the one now under consideration and though the application for pre-emption was premature on the date when it was made, it must be treated as one made on the date when the applicant''s right did mature. For these reasons we must decide the point raised in favour of the pre-emptor by upholding the contention of Mr. Mukherjee and overruling that of Mr. Roy-chowdhury.

In the result, the revisional application in C.0. 2141 of 1981 succeeds and is allowed. The orders passed by the two court below are set aside. The application for pre-emption which had not been dealt with on its merits by either of the two courts below, is remanded to the trial court for rehearing treating it to be one filed on April 12,1975.

So far as C R. 326 of 1980 is concerned, though the point of maintainability raised by Mr. Roychowdury must fail, yet it is necessary to consider another point raised by the pre-emptee on merits. Evidence adduced by the parties indicate that a number of persons instituted 0.C. Suit No. 181 of 1975 claiming tenancy right in respect of the disputed Plot No. 1523 Khatian 169 which was purchased as between the pre-emptor and the pre emptee. The pre-emptor was party defendant No. 1 in that suit and it was the pre-emptee who by paying a sum of Rs. 3,000/- had that suit settled with plaintiffs who on accepting the said sum relinquished vacant possession to the pre-emptor and the pre-emptee in respect of portion purchased by them respectively. In that view, it was contended on behalf of the pre-emptee that, it must be held that the pre-emptor had waived his right of pre-emption and in any event in claiming pre-emption, the pre-emptor must pay the said sum of Rs. 3,000/- along with consideration for the sale. Such a. contention was overruled by the two courts below. It was held that since the pre-emptor was not a signatory to the petition of compromise on the basis of which the suit was settled, it cannot be held that the pre-emptor had in any way waived his right of preemption. it was further held that in law the pre-emptee cannot claim payment of any amount, spent for either improving the property or rendering free the title by purchase from the pre emptee. In our view, however, the courts below failed to take note of the fact that though the pre-emptor was not a party to the petition of compromise, he was a party to the suit, being the first defendant therein. Though not joining the others in filing the petition of compromise ne was taking the full benefit of it when it is found that he acknowledged in writing delivery of vacant possession of the portion sold to him as a result of such compromise. He was standing, by when the purchaser of the other portion acting on his purchase was entering into a settlement with the plaintiffs and purchasing of all claims put forward by them to the entire plot for rendering the title free and secure vacant possession thereof by paying the sum of Rs. 3000/-, The suit having been compromised he took delivery of possession of the portion purchased by him on May 4, 1970, and thus obtained the benefit of the settlement and one year thereafter instituted the proceeding for preemption, not asserting his right all the time which passed in between. Such a conduct of the pre-emptor surely warrants a reasonable inference of relinquishment of his right of pre-emption. The fact that lie was not a signatory to the petition of compromise is wholly inconsequential. In our view, this defence of the pre-emptee should succeed and it was wrongly overruled by the courts below. On this ground, therefore, the revisions application succeeds and the Rule is made absolute. The order for preemption passed by the two courts being set aside, the application for pre-emption stands dismissed. Parties do bear their costs throughout. Leave under Article 133(1) is prayed for and is refused.

B.C. Chakrabarti, J.

I agree.