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Dhurjati Mohan Das and ors. Vs. Balai Chandra Das and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.R. No. 4353 of 1967
Judge
Reported inAIR1978Cal262
ActsWest Bengal Non-agricultural Tenancy Act, 1949 - Sections 4, 23, 24 and 33; ;Limitation Act, 1963 - Schedule - Sections 17 and 137
AppellantDhurjati Mohan Das and ors.
RespondentBalai Chandra Das and ors.
Appellant AdvocateGuruprasad Ghose, Adv.
Respondent AdvocateSourendra Prasad Roy Choudhury and ;Sourendra Prasad Ghose, Advs.
Cases ReferredIndia Pipe Fitting Co. v. Pakruddin M. A. Baker
Excerpt:
- .....no. 1 by a registered conveyance dated 19-12-55 who in his turn sold the suit property to the opposite parties nos. 3 and 4 by a conveyance dated 12-12-58. it may be stated here that the opposite parties nos. 3 and 4 are sons of opposite party no, 2, the tenant. the petitioners' case is that they were not made aware of these transfers which were fraudulently kept back from them and their father who was their pre-decessor-in-interest and only in the month of april/may, 1965, opposite parties nos. 3 and 4 approached them for issue of rent receipts in respect of the disputed property in their name stating that they had acquired these lands by purchase. the petitioners thereafter were put to enquiry and became aware of the transfers made in respect of the suit property and soon after on.....
Judgment:
ORDER

Salil Kumar Datta, J.

1. This Rule is directed against an appellate order dated 25th Aug., 1967, passed by the learned Subordinate Judge, Second Court, Midna-pore, affirming the order of the learned Munsif dated 12-11-66 in a proceeding under Section 24 of the West Bengal Non-Agricultural Tenancy Act. It appears that the petitioners are landlords in respect of the disputed property held originally by the opposite party No. 2 as tenant. He sold his interest to opposite party No. 1 by a registered conveyance dated 19-12-55 who in his turn sold the suit property to the opposite parties Nos. 3 and 4 by a conveyance dated 12-12-58. It may be stated here that the opposite parties Nos. 3 and 4 are sons of opposite party No, 2, the tenant. The petitioners' case is that they were not made aware of these transfers which were fraudulently kept back from them and their father who was their pre-decessor-in-interest and only in the month of April/May, 1965, opposite parties Nos. 3 and 4 approached them for issue of rent receipts in respect of the disputed property in their name stating that they had acquired these lands by purchase. The petitioners thereafter were put to enquiry and became aware of the transfers made in respect of the suit property and soon after on 29-6-65 filed this application for pre-emption in respect of the disputed lands. It was stated in their application that the petitioners were owners in possession of the contiguous land and they came to know of the aforesaid transfers for the first time in May, 1965. They require the suit properties as their accommodation in their adjacent bastoo was not sufficient.

2. The application was opposed by the opposite parties who submitted that the application was barred by limitation and further that the landlords did not establish their case of requirement of the disputed premises.

3. The learned Munsif in a trial on evidence held that there was fraud on the petitioners' predecessor-in-interest, their father, who died in 1959 as also on them as the transfers were kept back from him and them thereafter. It was held that time would run from the date of knowledge in May, 1965, and accordingly the petition was not barred by limitation. As to the requirement, the learned Munsif held that there was no evidence to support the case of the petitioners and accordingly the application was dismissed. On appeal, the learned Judge held that the application was barred by limitation and further in agreement with the learned Munsif it was held that the petitioners' requirement was not proved. This Rule under Article 227 of the Constitution is against this decision,

4. An objection in the nature of preliminary objection was taken by the opposite parties contending that in exercising jurisdiction under Article 227 of the Constitution, this Court should not interfere with the findings of fact arrived at by the courts below even if this Court would have come to another conclusion on these facts as the High Court was not sitting as court of appeal on facts against the decision under challenge.

5. Mr. Ghoae appearing for the petitioners relied on the decision reported in : AIR1963Cal409 in which it was held that if the decision of the tribunal can be shown to be arbitrary or devoid of reasons or erroneous on the face of it or to be based on error on a jurisdictional point, the High Court can and should revise the decision under Article 227 of the Constitution. The Court further observed that if an error whether of fact or law is such that the erroneous decision resulted in the tribunal exercising jurisdiction not vested in it by law or in its having failed to exercise jurisdiction vested in it by law, that will come within the scope of Article 227 of the Constitution. It may be mentioned here that there has been subsequent decision of the Supreme Court indicating the scope of interference by this Court under Article 227 of the Constitution as has been decided in the case reported in India Pipe Fitting Co. v. Pakruddin M. A. Baker, : [1978]1SCR797 . Be that as it may, let us consider the two points which have been urged before us in this case. The period of limitation for filing an application for pre-emption under Section 24 of the West Bengal Non-agricultural Tenancy Act is four months from the service of the notice issued under Section 23. In this case, it appears that no notice was served on the petitioners or their predecessor-in-interest as landlords while in the documents the transferees refer to landlords as the State of West Bengal. Accordingly, the four months limitation would have no application. Under Article 137 of the Limitation Act, 1963, the period of limitation for any application before any court under any statute is three years from the date when the right to apply accrues. Accordingly it would appear as the application for pre-emption is to be made before a court the period of limitation woraid foe three years from the date when the right to apply accrues when no notice of transfer is served on the co-sharer or land lord which will be the date of knowledge of the transfer in the circumstances of the case.

6. Mr. Ghose has further submitted that the transfers were kept away from the landlords, fraudulently as the transferees never intimated their landlords about the transfers, so that the petitioners were not in a position to discover the fraud committed on them by suppressing the transfer made without any reference to them and without their knowledge. The learned appellate court has relied on Exhibit 'A' a petition of complaint filed by the petitioners to show that they had knowledge of the transfer much earlier. I have gone through the exhibit 'A' which is a petition of complaint for throwing some rubbish by some of the opposite parties in the premises of the petitioners. That by itself does not indicate that the landlord had any knowledge of the said transfers. It is also a fact that the transferee tenants did not approach the landlords earlier than May, 1965 for mutation of their names or even for payment of rent. For this reason it can be said that there was fraud on the part of the opposite parties in suppressing the transfers to them. Under Section 29(2) of the Limitation Act, 1963, it is stated that for the purpose of determining the period of limitation prescribed for any application by any special or local law, the provision contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. The provisions of the Limitation Act have not been excluded in so far as the Act we are concerned with. Accordingly, it would appear that in any event the provisions of Section 17 would be applicable and limitation would run from the date the fraud was discovered by the petitioners. In this view of the matter, the application is not barred by limitation.

7. The next point for consideration is whether the landlords are entitled to claim pre-emption of the lands from the opposite parties. The first condition is that the land of the immediate landlord should be contiguous to the land sought to be pre-empted and in his possession. The next requirement is as follows:--

'The court is satisfied that such land or estate or portion thereof is required for use by such landlord for any of the purposes specified in Section 4'.

Section 4 provides residential purpose as one of the purposes for which the non-agricultural tenant may hold the non-agricultural land. It is, therefore, necessary for the petitioners to satisfy the court that they require the land or portion thereof for use by such landlord for residential purpose. In the petition for pre-emption it has been stated, as already noted, that the land is required for the purpose of construction of house as the accommodation of the petitioners in their adjacent residential house is not sufficient. In evidence it has been stated by the two P. Ws. who were the petitioners as follows:--

'We pray for pre-emption of the suit property as we feel difficulty in residing at our house.'

This is all the evidence that has been adduced in support of the case for requirement. This bare statement without more cannot satisfy a court that the premises are required for the residential accommodation of the landlords. In this state of affairs, there is no escape from the condusion that the petitioners have failed to satisfy the court about the requirement of the disputed premises for their residential purpose in absence of any other particulars which were necessary to satisfy the court about such requirement The Rule accordingly fails and is discharged.

8. There will be no order as to costs.


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