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Saranan Mondal and anr. Vs. Bejoy Bhushan Ghosh - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2208 of 1976
Judge
Reported inAIR1979Cal174
ActsWest Bengal Land Reforms Act, 1956 - Sections 2(6), 8 and 8(1)
AppellantSaranan Mondal and anr.
RespondentBejoy Bhushan Ghosh
Appellant AdvocateBejoy Bhushan Ghosh, Adv.
Respondent AdvocateBhakti Bhusan Mondal, ;Bhaktipada Ghosh, ;Amlesh Kr. Banerjee and ;L.C. Bihani, Advs.
Cases Referred and South British Fire and Marine Insurance Co. v. Brajanath Shaha
Excerpt:
- .....plot no. 2109 which is adjacent to said plot no. 2055 having the longest common boundary with the land transferred, that the petitioner is accordingly entitled to pre-empt the land transferred and that he-has deposited the entire consideration money together with a further sum of rs. 150/- representing 10% of the consideration money.3. the opposite party no. 1 contested the case by filing a written statement wherein he denied the material allegations contained in the said application under section 8. his specific case is that as he purchased three plots of land and the petitioner asked for pre-emption in respect of only one of those plots the case ought to fail, that as the total consideration of rs. 1499/- was paid in respect of the three plots the pre-emption case ought to fail, that.....
Judgment:
ORDER

D.C. Chakravorti, J.

1. This Rule is directed against order dated April 5, 1976 of the learned Additional District Judge, Birbhum, whereby the learned District Judge dismissed the appeal preferred from order dated May 21, 1974 made by the learned Munsif, at Dubrajpur.

2. The present petitioner made before the said learned Munsif an application under section 8 of the West Bengal Land Reforms Act, 1955 with a view to enforcing his right of pre-emption and the case made out in the said application under Section 8 is that the opposite party No. 2 Bhanubala Dassi by a registered Kobala dated July 20, 1973, (corresponding to 4th Shravan 1380 B.S.) transferred to O.P. No. 1 for a consideration of Rs. 1499/-plots Nos. 2055, 2048 and 2076 under Khatian No. 109 within Mouza Simlakuri under P.S. Dubrajpur in the district of Birbhum, that the petitioner is the owner of Plot No. 2109 which is adjacent to said Plot No. 2055 having the longest common boundary with the land transferred, that the petitioner is accordingly entitled to pre-empt the land transferred and that he-has deposited the entire consideration money together with a further sum of Rs. 150/- representing 10% of the consideration money.

3. The opposite party No. 1 contested the case by filing a written statement wherein he denied the material allegations contained in the said application under section 8. His specific case is that as he purchased three plots of land and the petitioner asked for pre-emption in respect of only one of those plots the case ought to fail, that as the total consideration of Rs. 1499/- was paid in respect of the three plots the pre-emption case ought to fail, that Plot No. 2109 is not contiguous to Plot No. 2055, that the petitioner is not the owner of adjoining land having the longest common boundary with the land transferred, that the petitioner is in possession of lands in excess of the ceiling prescribed by law and cannot as such ask for pre-emption, that the opposite party No. 1 is the owner of Plots Nos. 2052 and 2056 which are lands contiguous to Plot No. 2055 and that the right of preemption conferred by said section 8 on the ground of vicinage imposes an unreasonable restriction on the right to hold and dispose of property guaranteed by Article 19(1)(f) of the Constitution.

4. The learned Munsif dismissed the Misc. case arising out of the said application under section 8 on the ground that section 8 of the said Act imposes an unreasonable restriction on the right to hold and dispose of property guaranteed by Article 19(1)(f) of the Constitution.

5. The appeal that was preferred by the petitioner from the decision of the learned Munsif was also dismissed by the Court of Appeal below though on grounds different from those which weighed with the learned Munsif. The Court of appeal below relying on the decision in Narayan Chandra Ghosh v. Sanat Kumar, : AIR1975Cal290 according to which the provisions of section 8 of the West Bengal Land Reforms Act were not violative of the constitutional rights guaranteed by Article 19(1)(f) of the Constitution, held that the said application under section 8 was maintainable. It, however, held that as the opposite party No. 1 herein also had land adjoining the lands sought to be pre-empted, the present application under section 8 would not lie. In this view of the matter the Court of appeal below dismissed the appeal. Hence the present application under Article 227 of the Constitution.

6. The learned lawyer for the petitioner contended that the Court of appeal below was wrong in holding that as the opposite party No. 1 also had land adjoining the lands sought to be pre-empted, an application under section 8 of the Land Reforms Act could not lie. Before I discuss the question raised on behalf of the petitioner and those raised on behalf of the Opposite Party No. 1, I consider it proper to point out that both the Courts below as also the learned lawyers representing the parties lost sight of one very important matter which alone should have resulted in failure of the application under Section 8 of the West Bengal Land Reforms Act. A persual of the application under said Section 8 would show that nowhere in the four corners of the application the petitioner did make out the case that there was transfer of a portion or share of the holding of a raiyat. Before an application under said Section 8 may lie whether on the ground of the petitioner being a co-sharer in the holding or on the ground of his possessing land adjoining such holding, it is incumbent on the petitioner to show that there was transfer of either a portion or share of a holding of a raiyat. The word 'holding' has been defined by Section 2(6) of the said Act as meaning the land or lands held by a raiyat and treated as a unit for assessment of revenue. In the present case, there is no averment in the application under Section 8 stating that there was a transfer of a share or portion of a holding of a raiyat. The application proceeded on the basis that O.P. No. 2 transferred some property mentioned in the schedule thereto and the schedule simply shows that Plots Nos. 2055, 2048 and 2075 measuring respectively .09, .05 and .04 cents of P.S. Dubrajpur Mouza Simlakuri, Khatian No. 109 were the lands transferred. Thus, when the very vital requirement of section 8 of the said Act was not found complied with, the application under section 8 should have failed on that ground only.

7. Further, under Sub-section (1) of Section 8 of the said Act, when there is a transfer of a portion or share of holding of a raiyat to any person other than a co-sharer in the holding, a co-sharer raiyat of the holding or a raiyat possessing land adjoining such holding may apply for transfer of the said portion or share of the holding to him. But that is subject to the limit mentioned in section 14M. It is significant to note that the application under section 8 of the said Act does not disclose that the lands held by the petitioner together with lands sought to be pre-empted would not exceed the ceiling of the land that can be held by the petitioner under the law.

8. In the circumstances aforesaid, the determination of the question raised by both the learned lawyers representing the parties would not be necessary. However, when certain questions were raised I consider it proper to discuss them.

9. The learned lawyer appearing on behalf of the petitioner was right in saying that under the law the Court of appeal was not justified in dismissing the application under Section 8 solely on the ground that opposite party No. 1 also held land adjacent to the lands transferred. The learned lawyer for the petitioner relied on the decision in Narayan Chandra Ghosh's case : AIR1975Cal290 (supra) and argued that the second proviso to Section 8(1) of the said Act did not contemplate a transfer to a person who was already a raiyat possessing adjoining lands and that accordingly a transferee cannot pre-empt against himself. The two provisos to Section 8(1) of the said Act are as follows :

'Provided that if a co-sharer raiyat and a raiyat possessing land adjoining such holding both apply for such transfer, the former shall have the prior right to have such portion or share of the holding transferred to him, and in such a case the deposit made by the latter shall be refunded to him: 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.'

10. In the decision referred to above S. K. Datta J., rightly pointed out that the first proviso lays down that when there are rival claimants for pre-emption, of whom one is a co-sharer in the holding concerned and the other is a raiyat possessing land adjoining that holding, the co-sharer raiyat will have the prior right to pre-empt. The learned Judge while considering the scope of the second proviso is of the opinion that both the provisos are to be read together and that under the second proviso accordingly only in case of rival claims for pre-emption the preference is to be given to the raiyat owning adjoining land having the longest common boundary with the land transferred. Thus, according to His Lordship the second proviso has no application to a case where both the pre-emptor and the pre-emptee held land adjoining the land transferred. Thus, according to the decision referred to above the second proviso is restricted in its application to the rival claims of adjoning land-holders each of whom has preferred a claim by making applications under said section 8. The two provisos, to my mind, are distinct provisos and it would not perhaps be proper to read both the provisos together while considering the scope of either of the provisos. As each proviso is an independent and distinct proviso while considering one of them the other proviso ought not to be regarded as having any bearing on the proviso under consideration. The first proviso lays down a rule of preference when the contest is one between a co-sharer raiyat and a raiyat possessing land adjoining the holding transferred. The first proviso in clear terms lays down that the co-sharer raiyat will have prior right to pre-empt where a co-sharer raiyat and a raiyat possessing land adjoining the holding concerned both apply for such transfer. The second proviso does not say that it is to apply where each of the raiyats possessing lands adjoining the holding concerned applies for transfer of such land to him. The second proviso only lays down a rule of preference which is to be applied amongst raiyats possessing land adjoining the holding transferred. In such cases, according to the second proviso preference shall be given to the raiyat holding land having the longest common boundary with the land transferred. Thus, its application is not confined to two rival adjoining land-holders both of whom have applied to exercise their right of pre-emption under Section 8. To put such a construction on the second proviso as would restrict its application to the case of the only rival claims preferred by two adjoining landholders both of whom are pre-emptors would require the introduction into the proviso of something which is not there. For, I have already pointed out that though the words 'both apply for such transfer' appear in the first proviso they are absent in the second proviso. Further, such a construction of the second proviso as is warranted by the decision referred to above would deprive a raiyat possessing adjoining land having the longest common boundary with the land transferred only because he happens to be the transferee and as such the pre-emptee. This will also be opposed to one of the objects with which this Land Reforms Act was promulgated. The consolidation of holdings is one of the avowed objects of the said Act. The second proviso requires that when the matter is one amongst raiyats possessing lands adjoining the lands transferred preference shall be given to the raiyat holding land having the longest common boundary with the land transferred. Thus, there is no reason why this proviso shall have no application when the raiyat holding adjoining land having the longest common boundary with the land transferred happens to be the transferee himself. The first proviso has its application to cases where the contest is between a co-sharer raiyat and a raiyat holding land adjoining the land transferred and each of whom applied under Section 8 with a view to exercising his right to pre-empt. But the second pro- viso while laying down a rule of preference does not require that the contesting holders of adjoining lands should be persons each of whom made an application under Section 8. They may also be persons pitted against each other as pre-emptor and pre-emptee. The absence of the words 'both apply for such transfer' in the second proviso is material. In construing a statutory provision we cannot add words not appearing therein. We have to adhere to the grammatical and ordinary sense of the words used unless such adherence leads to some absurdity, repugnance or inconsistency with the rest of the provision. This is accepted as the golden rule of construction. In the present case the grammatical and ordinary sense of the words used in the second proviso supports the view taken by me as aforesaid and does not give rise to any repugnance, absurdity or inconsistency. A departure from the grammatical and ordinary sense of the words used shall work injustice and give rise to an anomaly. If the second proviso is restricted in its application to only cases of contending pre-emptors having lands adjoining the land transferred, though the ordinary meaning of the words used does not warrant such a view, a pre-emptee holding adjoining lands having longest common boundary will have to part with the land transferred which will go to an owner of adjoining land not having the longest common boundary with the land transferred. Accordingly, I hold that the second proviso will also apply to a case where the pre-emptee and pre-emptor are both possessing lands adjoining the land transferred. In the present case, the question as to whether the pre-emptor or the pre-emptee possessed land adjoining the holding concerned and having the longest common boundary with the land transferred was not taken up and decided by either of the courts below. Further in view of the fact that the application under Section 8 was not maintainable, the question as to whe-the the pre-emptor or the pre-emptee had lands adjoining and having the longest common boundary with the land transferred is not required to be decided.

11. The learned lawyer representing the opposite party No. 1 contended that in the present case the application under Section 8 was barred by limitation. The period of limitation according to said Section 8 in the case of the pre-emptor who claims to have lands adjoining theholding concerned is four months from the date of transfer. The transfer in this case was made on July 20, 1973 and the application under Section 8 was made on November 20, 1973. So far as the question of computation of the period is concerned the learned lawyer relies on two decisions namely Abdul Latif Nomani v. Commissioner, Gorakhpur, : AIR1968All44 and South British Fire and Marine Insurance Co. v. Brajanath Shaha, (1909) ILR 36 Cal 516. The said Allahabad decision relies on the decision in said Calcutta case. In the Calcutta case the question that arose is whether a suit instituted on April 15, 1907 claiming a sum of money under an insurance policy because of a fire occurring in the midnight of October 14, 1906 was within the period of limitation when the prescribed period of limitation was six months according to the English calendar. A Full Bench of the Calcutta High Court in the case referred to above decided that the suit was not brought within the period, for the fire occurred before the midnight of October 14, 1906 and the suit was instituted on April 15, 1907, one day after the expiration of six months. There the day on which the fire occurred was excluded. If, therefore, October 14, is excluded the first calendar month commences from October 15, 1906 and the period of six months expired on April 14, 1907. According to the provisions of Section 3(27) of the Bengal General Clauses Act, 1899, 'month' shall mean a month recorded according to the British Calendar. In the present case, if the date of transfer i.e. July 20th, 1973 be excluded then the calendar month would begin from July 21, 1973, and the period of 4 months would expire on November 20, 1973. In this view of the matter it cannot be contended that the present application under Section 8 was beyond the period of limitation.

12. In view of the discussions aforesaid, I cannot but hold that the Rule ought to be discharged. The Rule is accordingly discharged. There will, however, be no order as to costs.


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