Maloy Kumar Bera vs Rabindra Nath Bera

Chittatosh Mookerjee, J.—On October 10, 1966, Surendralal Sinha Choudhury and Jyotirindralal Sinha Choudhury executed a sale deed in favour of the Petitioner minor Maloy Kumar Bera represented by his guardian Sm. Renuka Bera conveying 1 acre 7 decimals of land comprised in plots Nos. 3879, 3881, 3892 and 3889 appertaining to khatian No. 622, mouza Lakshmi, P.S. Khejuria, dist. Midnapore. The said kobala was presented for registration on November 17, 1966. The endorsements and certificates referred to and mentioned in Sections 59 and 60 of the Registration Act and thereafter, copies in the margin of the relevant register book in terms of Section 61 of the Registration Act were completed on December 19, 1966.

On April 3, 1967, Rabindranath Bera, who is the opposite party in the present Rule, filed in the office of the Revenue Officer, Contai, an application u/s 8 of the West Bengal Land Reforms Act, 1955, alleging that he was a co-sharer tenant of the raiyati holding comprised in khatian No. 622, mouza Lakshmi, P.S. Khejuri. He also claimed to be a contiguous tenant. He alleged that minor Maloy Kumar Bera was not a co-sharer and therefore, he was entitled to pre-empt the aforesaid transfer made by Surendralal Sinha Choudhury and Jyotirindralal Sinha Choudhury in favour of Maloy Kumar Bera. The vendee Maloy Kumar Bera opposed the said pre-emption application filed by Rabindranath Bera. Subsequently, the case was transferred to the Court of Munsif, First Court, Contai. The learned Munsif, First Court, Contai, by his order dated April 10, 1973, dismissed the pre-emption application filed by Rabindranath Bera finding that the real purchaser was Sudhindranath Bera, the father of the minor Maloy Kumar Bera, who was only his benamdar. The said Sudhindranath Bera was already a co-sharer tenant of the jama and therefore, the provision of Section 8 of the West Bengal Land Reforms Act did not apply in the case.

Rabindranath Bera being aggrieved by the said order preferred a miscellaneous appeal. The learned District Judge, Midnapore, by his order dated April 19, 1974, dismissed the said appeal. The learned District Judge held that the pre-emptor was not a co-sharer tenant of the holding on the date of transfer in question. Therefore, the preempter was not entitled to claim pre-emption as a co-sharer of the holding. The learned District Judge also agreed with the conclusion arrived at the learned Munsif that Sudhindranath Bera, the father of Maloy Kumar Bera, was the real purchaser of the disputed properties, but he held that in view of the Full Bench decision of this Court in Madan Mohan Ghosh and Others Vs. Sishu Bala Atta and Others, Bala Sudhindranath was no longer a co-sharer. The pre-emptor was found to be admittedly a contiguous tenant owning lands adjoining the disputed properties. But his application was held to be barred by limitation. The District fudge took November 17, 1966 as the date of the transfer whereas the pre-emption application was fled on April 3, 1967, i.e. more than four months after the date of the transfer.

Thereafter, Rabindranath Bera filed an application purported to be under Order 47, Rule 1 of the CPC for review of the judgment dated August 30, 1974, passed by the learned District Judge, Midnapore, dismissing the Misc. Appeal No. 139 of 1973. On July 29, 1975, the learned District Judge, Midnapore, allowed the said review application. He allowed the Misc. Appeal No. 139 of 1973 and allowed Rabindranath''s prayer as a contiguous tenant u/s 8(1) of the Land Reforms Act against the opposite party in respect of the properties described in the schedule of the petition. The learned District Judge held that his predecessor-in-office had committed an error apparent on the face of record by taking November 17, 1966, as the date of transfer. The effective date of registration of the kobala in favour of Maloy Kumar Bera was December 19, 1966, when provisions of Section 61 of the Indian Registration Act were complied with and the pre-emption application was filed within four months from the said date of completion of the registration of the kobala. Hence the pre-emption application was wrongly held to be barred by limitation. The learned District Judge accordingly found that the pre-emptor as an owner of adjoining lands was entitled to succeed.

Maloy Kumar Bera being aggrieved by the said review order obtained in C.R. 3213 of 1975. The learned Advocate for the Petitioner in C.R. 3213 of 1975 has submitted that the order of the learned District Judge was without jurisdiction. In the first place, he submits that the learned District Judge acting as the appellate authority u/s 9(6) of the West Bengal Land Reforms Act does not function as a civil Court and the provisions of Order 47 of the CPC are not applicable. According to Mr. Panda, law does not recognize inherent power of a Court or Tribunal to review its judgment. Therefore, the review made by the learned District Judge of the order of his predecessor-in-office dismissing the appeal of Rabindranath Bera was without jurisdiction. The learned Advocate for the Petitioner also submitted that the pre-emption application in question was barred by limitation. Mr. Mukherjee, learned Advocate for the opposite party in C.R. 3213 of 1975, on the other hand, submitted that the order of the learned District Judge dated August 30, 1974, dismissing the misc. appeal preferred by his client was erroneous on the face of record in so far as it was held that the pre-emption application in question was barred by limitation. Mr. Mukherjee further submitted that since the review application filed by his client before the learned District Judge had succeeded, his client could not move this Court against the said order of the learned District Judge dated August 30, 1974. In case the impugned review order dated July 29, 1975, is held to be incompetent, Mr. Mukherjee prayed that his client may be allowed to challenge the order dated August 30, 1974, of the learned District Judge, Midnapore, dismissing the Misc. Appeal No. 139 of 1973.

I find that the learned District Judge, Midnapore, in his order dated August 30, 1974, had committed an error apparent on the face of record in holding that the impugned transfer in favour of Maloy Kumar Bera was made on November 17, 1966. Section 5(1) of the West Bengal Land Reforms Act enjoins that a transfer of the holding of a raiyat or a share or a portion thereon shall be made by an instrument which must be registered. In the instant case, endorsements were made and certificates were copied in the relevant register in terms of Sections 60 and 61 of the Registration Act, 1908 on December 19, 1966. Section 61(2) of the Registration Act provides that thereupon the registration shall be deemed to have been complete. A right of pre-emption u/s 8 of the West Bengal Land Reforms Act arises when there is a complete transfer of a share or a portion of a raiyati holding in favour of a person other than a co-sharer tenant. Section 8(1) read with Section 5 of the West Bengal Land Reforms Act clearly intends that only upon completion of the registration of the document of transfer of a share or portion of a holding of a raiyat, the rights of co-sharer tenants and contiguous tenants to pre-empt would accrue. Unless the registration is completed u/s 61 of the Registration Act, 1908, a transfer of a share or portion of a raiyati holding would be still inchoate. Therefore, the period of limitation prescribed by Section 8(1) for making a pre-emption application by a contiguous tenant begins to run when the registration of the document is completed and the transfer becomes effective.

Above question is now concluded by the decision of the Supreme Court in Hiralal Agrawal etc. Vs. Rampadarath Singh and Others, etc., . In the said case the Supreme Court dealt with the question of accrual of right of re-conveyance u/s 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1962. Shelat J. delivering the judgment of the Court observed that u/s 16(2) and (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, no transfer takes place unless deed is registered. Registration is complete only when the certificate u/s 60, Registration Act, is given and the endorsement and copying out the said certificate u/s 61 of the Registration Act are made. It follows, therefore, that the right of re-conveyance accrues to the Applicant only on the date of completion of registration of the transfer and an application u/s 16 presented to the Collector before such date would be premature. The learned Judge in para. 11 of his judgment rejected the argument made on the basis of Section 47 of the Registration Act that once registration is effected the title under the sale deed relates back to the date of execution of the sale deed so as not to render an application presented prior to the completion of registration as premature. The decision of the Supreme Court in Hiralal Agrawal etc. Vs. Rampadarath Singh and Others, etc., is binding upon me and therefore, I hold that in the instant case the right of pre-emption u/s 8 accrued only on the completion of the registration of the deed u/s 61 of the Registration Act and the application of Rabindranath Bera, the opposite party in C.R. 3213 of 1975, having been presented within four months of the said date of transfer, the same was not barred by limitation.

Sub-section (6) of Section 9 of the West Bengal Land Reforms Act, as subsequently amended by the West Bengal Act I of 1971, provides that any person aggrieved by an order may prefer an appeal to the District Judge. The said Sub-section (6) of Section 9 further provides that the fees to be paid by the parties and the procedure to be followed by the appellate authority shall be as may be prescribed. The West Bengal Land Reforms Rules, however, do not prescribe detailed procedure for such appeal u/s 9(6) of the Act. Rule 29(1) merely lays down that every appeal under die Act, the procedure for which has not been prescribed elsewhere in the Rules, shall be filed in the form of a memorandum and shall be signed and verified by the Appellant in the manner provided in Sub-rules (2) and (3) of Rule 15 of Order VI of Schedule I of the Code of Civil Procedure, 1908. It shall be accompanied by an authenticated copy of the order appealed against. Sub-rules (2) and (3) of Rule 29 only deal with payments of court-fees and process fees. But these rules do not expressly extend the provisions of the CPC relating to appeals and review to appeals u/s 9(6) of the West Bengal Land Reforms Act. Lahiri and Mitter JJ. in Rai Harendranath Chaudhuri Vs. Sm. Daulatmani Chaudhurani, held that the District Judge exercising powers u/s 27 of the Calcutta Thika Tenancy Act, 1949, is a Court of special jurisdiction and is governed not by the procedure laid down by the CPC but by the special procedure prescribed by the Calcutta Thika Tenancy Act and the Rules. As such, an appeal before him cannot be treated as under the CPC within the meaning of Article 152 of the Limitation Act, 1908, so as to attract the applicability of Section 5 of the Limitation Act, 1908. It may be, however, noted that unlike s.27 of the Calcutta Thika Tenancy Act, 1949, neither Section 9(6) nor the prescribed rules contain detailed procedure for disposal of an appeal against a pre-emption order u/s 8. I do not propose to finally decide in the present rule whether in these circumstances the dicta of the Privy Council in State v. Chelikani Rama Rao L.R. 43 IndAp 180 and Adai Kappa v. Chandra Sekhar L.R. 74 IndAp 264 would be applicable. The same would depend upon the question whether an appeal u/s 9(6) is to one of the ordinary Courts of the country. When the special Act and the Rules do not circumscribe this appellate powers, it may be then contended that the appellate Court has to decide the appeal according to the Code of Civil Procedure.

In the instant case, on August 30, 1974, I issued a suo motu rule in the exercise of my powers under Article 227 of the Constitution asking the parties to show cause why the appellate order dated August 30, 1974, passed by the learned District Judge, Midnapore, in Misc. Appeal No. 139 of 1973 shall not be set aside. The parties in C.R. 3213 of 1975 waived service of the said suo motu rule. After adjournment, I have heard the matters.

In view of the decision of the Supreme Court in Hiralal Agarwal v. Rampadarath Singh Supra the learned Advocate for Maloy Kumar Bera did not seriously dispute the order of the learned District Judge dated August 30, 1974, that the pre-emption application u/s 8 filed by Rabindranath Bera was barred by limitation and was erroneous on the face of record. The said application as already stated having been made within four months from the date of completion of the registration was filed within the time prescribed by Section 8(1). Therefore, the order dismissing the appeal was not sustainable in law.

Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of Maloy Kumar Bera, further contended before me that in the instant case the real purchaser was himself an adjoining owner. Therefore, in terms of the second proviso to Section 8(1) of the West Bengal Land Reforms Act, his purchase was not liable to be preempted by any other adjoining owner. Secondly, Mr. Banerjee submitted that in the instant case three out of six plots conveyed in favour of the Petitioner were recorded as pukur in the finally published revisional records of rights. After the amendment of the definition of the expression ''land'' appearing in Section 2(7) of the West Bengal Land Reforms Act, these tanks were no longer agricultural lands and therefore, no order of pre-emption u/s 8 could be made in respect of these tanks.

Section 8(1) confers right of purchase on co-sharers and contiguous tenants when a portion or a share of a holding of a raiyati is transferred to any person other than a co-sharer. Sub-section (1) of Section 8 does not expressly or by necessary implication lay down that a transfer of a portion or a share of a raiyati holding to a contiguous tenant would not be subject to right of pre-emption u/s 8(1). The provisos to Section 8(1) dealt with questions of priority in case of plurality of pre-emption application and precedence among them. Under the first proviso a co-sharer raiyat has a prior claim over a contiguous tenant in the matter of pre-emption u/s 8(1). The second proviso deals with the question of priority amongst contiguous tenants. Preemptors among contiguous tenants, one having the longest common boundary with the land transferred has a preferential right of pre-emption over another contiguous tenant. The second proviso does not further lay down that in case there is a transfer of a share or portion of raiyati holding to a contiguous tenant another contiguous tenant cannot pre-empt. In view of the clear language of the statute it is not necessary for me to consider whether the object of Section 8(1) is to provide for consolidation of raiyati holdings and to prevent their fragmentation and whether the same is likely to be defeated if one contiguous tenant can pre-empt a purchase made by another contiguous tenant. If this be a causes omissus, it is for the Legislature to amend the law.

Mr. Banerjee contended that the amendment of the definition of the expression ''land'' in Section 2(7) meant that the three tanks in question ceased to be part of agricultural holding and therefore, the pre-emptor was no longer a contiguous tenant in respect of the said tanks. According to Mr. Banerjee, a person must be a co-sharer not only at the date of transfer but also at the date of the order for pre-emption is made. In this connection he referred to the decision of the Supreme Court in Indian Aluminium Company Vs. Kerala State Electricity Board, . Therefore, the amendment of the definition of land did not operate against him and so far as the pending preemption application was concerned, all the plots of lands must be considered as agricultural lands subject to exercise of right of preemption u/s 8. Similarly, the said amendment, the absence of any contrary intention expressed in the amending acts did not also affect any investigation, legal proceeding or remedy in respect of such right of pre-emption and the corresponding obligation or liability of the purchaser. Further, such legal proceeding or remedy in terms of Section 8 of the Bengal General Clauses Act could be lawfully continued to be enforced as if the repealing Act had not been passed. It is unnecessary to refer to various reported cases and it would be sufficient to cite the Supreme Court decision in Garikapatti Veeraya Vs. N. Subbiah Choudhury, .

The pre-emptor was admittedly a contiguous tenant of the holding which comprised all the plots in respect of which the preemption was made at the date of the transfer and also on the date of the filing of the pre-emption application the said plots including those recorded as tanks formed parts of a raiyati holding and the transfer of a share or portion thereof gave rise to a right of pre-emption u/s 8. The subsequent amendment of the definition of the expression ''land'' was made retrospectively only up to February 12, 1972 and the same did not deprive the rights of pre-emption which had accrued prior to the date of the commencement of the said amendment. In terms of Section 8 of the Bengal General Clauses Act, notwithstanding the change of law such right of the pre-emptor in the instant case, being a vested one continued to subsist. In the instant case, the holding in question recorded as a raiyati holding. The kobala obtained by Maloy Kumar Bera is also described as raiyati. The purpose for which the tenancy is held and not the actual user of the different plots of lands comprised in the said holding; would determine the nature and the character of the tenancy. Tudged by such test at the relevant date, all lands comprised in the holding in question being agricultural lands in character were subject to provisions of Section 8 of the West Bengal Land Reforms Article See in this connection the decision of M.M. Dutt J. in Ram Kumar Kajoria v. Vhadra Engineering (India) Ltd. 76 C.W.N. 427 (429-30).

A Full Bench of this Court in Jatindranath De v. Jetu Mahato 50 C.W.N. 502 held that the right of pre-emption of a co-sharer landlord which accrued u/s 26F of the Bengal Tenancy Act as it stood before Bengal Tenancy (Amendment) Act, 1938, was not taken away by the said amending Act of 1938 and was saved u/s 8 of the Bengal General Clauses Act. The Full Bench further held that the old procedure was also saved. The said Full Bench decision in Jitendranath De v. Jetu Mahato clearly supports the above view taken by me.

Thus, all the contentions against the exercise of right of pre-emption fail. I, accordingly, dispose of the Rule in the following terms:

I set aside the order dated August 30, 1974, dismissing the Misc. Appeal No. 139 of 1973 passed by the learned District Judge, Midnapore and restore the order passed by the learned Munsif, Contai, dismissing the Misc. Case No. 115 of 1972 passed on April 10, 1973. I allow the application u/s 8 of the West Bengal Land Reforms Act filed by Rabindranath Bera. In the above view no further order is necessary in respect of the order No. 33 dated July 29, 1973, passed by the learned District Judge, Midnapore, in Misc. Appeal No. 139 of 1973. The purchaser opposite party would be entitled to withdraw the money deposited by the pre-emptor.

There will be no order as to costs in this Court.