Parameswar Bera vs Bhagabat Chandra Maity

Basudev Panigrahi, J.—The instant revisional application is directed against the judgment or order dated May 5, 1994 passed by the learned Additional District Judge, 5th Court, Midnapur in Misc. Appeal No. 95/92 reversing the judgment passed by the Munsif at Dantan in Judicial Misc. Case No. 71/89. The Petitioner has, inter alia, stated that the opposite parties 1 to 4 filed an application u/s 8 of the West Bengal Land Reforms Act which was registered as a Misc. Case No. 71/89 against this, Petitioner and the opposite party No. 5 for pre-emption in the Court of the learned Munsif at Dantan. It was further claimed by the opposite parties 1 to 4 that they are the continuous and adjacent plot owners of plot No. 233, i.e. the property in dispute. The opposite party No. 5 transferred a portion of plot No. 233 by a registered Kobala dated July 4, 1983 to the Petitioner who happened to be a stranger without consent and/or notice to the opposite parties 1 to 4. When the opposite parties No. 1 to 4 came to know of the alleged transfer on October 27, 1989 after taking certified copy of the same from the sub-Register''s Office they filed an application u/s 8 of the West Bengal Land Reforms Act. The Petitioner after service of notice filed written objection, inter alia, refuting ali the material! allegations contained therein. It is stated that the opposite party No. 1 was fully aware, of the transaction which had taken place between the Petitioner and the opposite party no. 5. The transaction was settled at the intervention of the opposite party No. 1. The Petitioner was a bargadar prior to his purchase under the opposite party No. 5 and he used to deliver produce to the opposite party No. 5 after obtaining proper receipt. The Petitioner does not own land more than one acre as such, the opposite parties 1 to 4 are not in any way entitled to claim pre-emption. The learned Munsif on hearing the parties was, however, not inclined to allow the application of the opposite parties 1 to 4 and thus, their prayer was rejected. Against the aforesaid judgment and/or order the opposite parties 1 to 4 preferred an appeal in the Court of learned District Judge, Midnapore and in the event of transfer of the proceeding to the Court of Additional District Judge, 5th Court, Midnapur it was heard and disposed of by the Additional District Judge by reversing the judgment of the learned Munsif. Therefore, being aggrieved by and dissatisfied with the judgment and/or order of the learned Additional District Judge, 5th Court the Petitioner preferred this revision.

Mr. Roy Chowdhury, the learned Counsel appearing for the Petitioner, has strongly urged that in this case the appellate Court has gone wrong in allowing the application filed by the opposite parties. It is further contended that since the Petitioner was a Bargadar before his purchase from Smt. Hemanta Kumari Dayee the opposite party cannot claim pre-emption from him. The Petitioner owned less than one acre of land and, therefore, the purchase made by him as a Bargadar confers a special right u/s 8E of the Act. The trial Court in the instant case after appraisal of evidence had reached at the correct conclusion holding the Petitioner as a Bargadar who owned less than one acre of land. The Petitioner also in the alternative laid a claim that he was an adjoining owner of the disputed premises, but both the Courts below have not discussed about ''the right of the Petitioner on the ground of adjoining ownership. Mr. Roy Chowdhury also questioned the property of the jurisdiction assumed by the Courts below while deciding Bargadar right claimed by the Petitioner. He indicated that when such a dispute arises as to the claim of a person as a Bargadar such question usually has to be decided by an officer empowered u/s 18 of the West Bengal Land Reforms Act.

Mr. Bhattacharyya, the learned Advocate appearing for the pre-emptor/opposite party has drawn my attention that the question of Bargadar right can be decided by the learned Munsif who has acted as a an authority under the Act while deciding an application u/s 8 of the West Bengal Land Reforms Act. Therefore, the learned Munsif as well as the appellate authority are quite competent to examine the contention of the Petitioner relating to Bargadari right. The Petitioner after having submitted to the jurisdiction cannot subsequently be allowed to turn round and say that both the forums are devoid of jurisdiction for deciding such an issue. When the question arises with regard to the Bargadari right under Chapter 111 of the Act, such question shall have to be decided by an officer specially empowered in that behalf. But if such question arises for consideration incidentally while deciding the rights, and liabilities of the parties the authority cannot be said to have lost their jurisdiction. The Munsif, while acting as an authority, under the provision of Section 8 of the Act cannot be regarded as a Civil Court so as to bring it within the mischief of Section 21(3) of the Act. Mr. Bhattacharjee further, has taken me through the averments of the petition filed u/s 8 of the Act and also written objection filed by the Petitioner. In the written objection though the Petitioner has taken a stand that he too is a contiguous owner but in support of his plea he has stated before the authority that he owned only two decimal in plots No. 108/835. It is true that this point was not discussed by both the courts below but there are even sufficient materials before us for deciding contiguous ownership of the Petitioner vis-�-vis the pre-emptor/opposite party. The pre-emptor/opposite party has larger extent of land who have preferential right of pre-emption over the Petitioner.

Admittedly, the pre-emptor/opposite parties has land in plot Nos. 222 and 224. The application was filed by the pre-emptor claiming right of pre-emption of plot No. 223 on account of his contiguous ownership in plot Nos. 222 and 224. Therefore, his right as a contiguous owner claiming right of pre-emption cannot; however, be questioned by the pre-emptee. Only stand has been taken by pre-emptee is that he too is a contiguous owner owning two decimals of land in plot No. 108/835. It is true that he is also a contiguous owner of the disputed plot No. 223 but while deciding the claim of two contiguous owners regarding the right of preemption it is to be seen as to which of the adjoining. Owner raiyat has the longest common boundary with the land transferred. In the instant case, the pre-emptor/opposite party has admittedly longest common boundary with the land transferred therefore the opposite party preemptor has an edge over the claim of the Petitioner. In this respect, it is necessary to quote Section 8:

Right of purchase by co-sharer or contiguous tenant: (1) If a portion or share of a holding of a raiyat is transferred to any person other than a co-sharer in the holding, any co-sharer raiyat of the holding may, within three months of the service of the notice given under Sub-section (5) of Section 5 or any raiyat possessing land adjoining such holding, 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 holding to him, subject to the limit mentioned in (Section 14-M), on deposit of the consideration money together with a further sum of ten per cent of that amount.

Provided further that as amongst raiyats possessing lands adjoining such holding preference shall be given to the raiyat having the longest common boundary with the land transferred.

Mr. Roy Chowdhury has invited my attention that while deciding the right of the pre-emptor as a Bargadar the appellate Court fell into error in not sending the dispute to an authority competent to decide Bargadari right u/s 18 of the Act. He has indicated that as per the provision of the Section 21 of the Act the Criminal Court as well as the Civil Court having competent jurisdiction do not seize the jurisdiction. In order to appreciate the contention of Mr. Roy Chowdhury it is necessary to quote Section 18 of the Act.

Jurisdiction to decide certain disputes.

(1) Every dispute between a bargadar and the person whose land he cultivates in respect of any of the following matters, namely:

(a) division or delivery of the produce.

(aa) recovery of produce u/s 16A.

(b) termination of cultivation by the bargadar.

(c) Omitted.

shall be decided by such officer or authority as the State Government may appoint:

Provided that no application for decision of any dispute shall be entertained unless such application is presented to the officer or authority within three years from the date" on which the claim falls or becomes due.

(2) If in deciding any dispute referred to in Sub-section (1) or otherwise any question arises as to. whether a person is a bargadar or not and to whom the share of the produce is deliverable, such question shall be determined by the officer or authority mentioned in Sub-section (1).

On a careful reading of the Sub-section 2 of Section 18 there is no room for doubt that while deciding a dispute between the Bargadar and a person whose land he cultivates, it is only the officer or the authority stated in the section competent to decide such a dispute. Whether such exercise of jurisdiction by any other authority while deciding the rights of a Bargadar is barred or not needs to be carefully examined in the instant case. Mr. Roy Chowdhury has placed Section 21 of the Act for consideration.

(1)... proceeding in respect of any matter mentioned in Sections 17, 18, 19B and 20B.

(3) If any question as to whether a person is or is not a bargadar arises in the course of any suit case, appeal or other proceedings before any Civil or Criminal Court, the Court shall refer it to the officer or authority mentioned in Sub-section (1) of Section 18 (for decision and such Court shall dispose of the suit, case, appeal or. other proceedings in accordance with the decision communicated to it by the officer or authority mentioned in Sub-section (1) of Section 18 to whom the question was referred).

I am not oblicious to the position that when a matter concerning the Bargadar interest of a person requires to be decided under Sections 17, 18, 19B and 20B, it has to be decided by the authority or the officer specially empowered thereto and not by the Civil Court. This identical question has appeared before the Court more often than not in other decisions. Reported in Anglo India Jute Mills Co. Ltd. Vs. Sarjoo Prasad Singh, that when the question arises as to whether a person is a tenant or not, it is not the intention of the legislature to confer upon the statutory authority the jurisdiction to decide such controversial question as to title of the property. The jurisdiction conferred upon the Bhagchas Officer is of a limited character. He can decide only disputes referred to in Sections 17 and 18 of the Act and it is only in respect of those matters the jurisdiction of the Civil Court has been ousted.

While the Munsif acting as an authority u/s 8 of the Act it is to be seriously examined whether he is regarded as a Civil Court or a Court having special jurisdiction. The aforementioned question came for consideration before a Special Bench of this Court in the case of Tarapada Shome v. Parbati Charan Sarkar 1983 (2) C.L.J. 44, it is held:

The jurisdiction of the Munsif and that of the District Judge u/s 8(1) and Section 9(6) of the West Bengal Land Reforms Act have been fixed by the Notification of the State Government u/s 13(1) of the Bengal, Agra and Assam Civil Courts Act, 1887 and the West Bengal Land Reforms Act has merely conferred special jurisdiction on them. That being so, while dealing with pre-emption proceedings under the West Bengal Land Reforms Act, the Munsif and the District Judge function as Courts of special jurisdiction. Therefore, in view of the special provisions contained in the West Bengal Land Reforms Act, the Munsif having territorial jurisdiction is competent to entertain a pre-emption application u/s 8(1) of the said Act even when the amount of consideration for such a transfer exceeds the extent of pecuniary limits fixed Section 19 of the Bengal, Agra and Assam Civil Courts Act.

Again the same question appeared to have been considered in another decision in Beharilal Santa v. Bishnupada Pattanayak 79 C.W.N. 103 it is held:

The expression ''Munsif having territorial jurisdiction'' in Section 8 of the West Bengal Land Reforms Act, 1955, does not refer to the Munsif as a persona designata but refers to the Munsif as a Court.

A Munsif dealing with an application under the aforesaid Section 8 can exercise inherent jurisdiction u/s 151 of the CPC to grant an injunction in an appropriate case.

Before amendment of Section 19 of the Act the Munsif was vested with the appellate power against the order passed, by a revenue officer. While hearing of an appeal, the learned Munsif was of the opinion that the case required reconsideration and accordingly he remitted the same to the learned revenue officer the propriety of the order was carefully considered by this Court. It was urged by the Petitioner in that case that the Munsif while acting as a Court could not have sent the appeal on remand as Rule 7 did not specifically authorise him for remitting the matter to the revenue officer. This Court after examining the contention of the parties held that the Munsif functioning as a Court under the provision of the Act may be regarded as a Court having special jurisdiction. While deciding the question as to whether the Munsif has been vested with the powers of the Civil Court when he resolves a dispute u/s 8 of the Act, it is necessary to consider the provision of the Section 57 of the Act. For this purpose Section 57 has been quoted hereunder:

Powers of officers dealing with proceedings under this Act.

Rules made thereunder, any officer in dealing with proceedings under this Act shall exercise the powers of a Civil Court under the Code of Civil Procedure, 1908 (Act v. of 1908) for the purpose of -

(a) summoning and enforcing the attendance of any person and examining him on oath as a witness,

(b) requiring the discovery and production of any document or record,

(c) receiving evidence on affidavits,

(d) requisitioning any public record or copy thereof from any Court or office,

(e) issuing commission for the examination of witnesses or documents,

(f) enforcing or executing orders including an order for restoration of possession as if such orders were decrees of a Civil Court,

(g) remanding any case or proceedings to the officer from whose decree the appeal is preferred, and such officer shall record the substance of the evidence, if any, taken by him.

On a careful reading of the provision it does not admit to any other inference than holding that the learned Munsif while deciding the dispute u/s 8 shall be regarded as a Court having special jurisdiction but not that of a Civil Court as has been indicated under the provision of Bengal, Agra and Assam Civil Courts Act? 1887. Under Sub-section 2 of Section 61 of the Act the legislature in its wisdom has laid down as to which of the authorities under the provisions of this Act shall have exclusive jurisdiction to enquire into and decide any question relating to land in connection with any matter which is required to be enquired into or decided by any prescribed authority or other officer or authority under the provisions of the Act has excluded the Civil Court from the Section. Therefore, it leaves no ambiguity to hold that the learned Munsif while deciding the case u/s 8 of the Act cannot be regarded as a Civil Court but shall be treated as a Court having special jurisdiction or as prescribed authority as the case may be. In the above circumstances, the question of Bargadari right when it is to be decided by a Court u/s 8 of the Act it is not necessary to refer the matter to the Bhagchas officer.

Accordingly, I am unable to subscribe with the submission of the learned advocate appearing for the Petitioner that the question of Bargadari right should be referred to an officer or the authority appointed by the State Government in this behalf u/s 18 of the Act. In the result, considering the case of the Petitioner, from any angle I do not find there is any merit in this application, and, thus, it is dismissed but in the circumstances without costs.