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Krishna Chandra Pramanik and ors. Vs. Hari Sadan Sahana and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberCivil Order No. 2141 of 1981 with C.R. 326 of 1980
Reported inAIR1981Cal435,86CWN105
ActsWest Bengal Land Reforms Act, 1956 - Section 8; ;West Bengal Non-Agricultural Tenancy Act, 1949 - Section 24; ;Registration Act, 1908 - Section 61; ;Code of Civil Procedure (CPC),1908 - Order 7, Rule 7
AppellantKrishna Chandra Pramanik and ors.
RespondentHari Sadan Sahana and anr.
Appellant AdvocateSaktinath Mukherjee and ;Pradipta Roy, Advs. (in C.O. No. 2141/81 and ;S.P. Roy Chowdhury and ;Debatosh Khan, Advs. (in C.R. No. 326/80)
Respondent AdvocateFalguni Sarkar, Adv. (in C.O. No. 2141/81) and ;Naresh Chandra Ganguli and ;Chittapriya Roy Chowdhury, Advs. (in C.R. No. 326/80)
DispositionRevision allowed
Cases ReferredSachindra v. Trailakyanath
- .....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.2. in c. o. 2141 of 1981, the petitioners claiming themselves to be co-sharers, filed an application for preemption under section 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 parganas. the sale deed was executed on june 14, 1974.....

Anil K. Sen, J.

1. 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.

2. In C. O. 2141 of 1981, the petitioners claiming themselves to be co-sharers, filed an application for preemption under Section 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 Parganas. 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 under Section 61 of the Registration Act on April 12, 1975, but in the meantime on August 26, 1974, the application for pre-emption was filed. 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 proceedings, is inconsequential because he thought on the authority of the decision of this court in the case of Kalipada Ghosh v. Dulal Chandra Ghosh, (1978) 82 Cal WN 950 the right to pre-empt must exist both on the date of the application and on the date of the order. Feeling aggrieved, the preemptors have preferred the present revisional application.

3. In C. R. 326 of 1980, the petitioner purchased a portion of R. S. Plot No. 1523 Khatian 169 Mouza Kutubpur Fulbari, P. S. Englishbazar Malda 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 under Section 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 pre-emptee petitioner failed and was dismissed on August 9, 1979. Feeling aggrieved the pre-emptee 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.

4. 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 61of the Registration Act, it is also not in dispute that a right of pre-emption either under Section 8 of the West Bengal Land Reforms Act or under Section 24 of the West Bengal Non-Agricultural Tenancy Act accrue 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 under Section 51 of the Registration Act. Reference may be made to the decisions of the Supreme Court in the cases of Ram Saran v. Domini Kuer, : [1962]2SCR474 and Hiralal Aggarwal v. Rampadarath Singh, : [1969]1SCR328 and the decision of this court in the case of Malay Kumar v. Rabindra Nath, (1977) 1 Cal LJ 92. It must, therefore, be held that in both the cases now under consideration, the preempters had no accrued right to claim preemption 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. Roychowdhury appearing for the pre-emptee-petitioner in the second case, notwithstanding such completion, 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 pre-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 undoubtedly deserves serious consideration.

5. 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.

6. Strong reliance is placed by Mr. Roychowdhury on the decision of the Supreme Court in the case of Radhakishan v. Shridhar, : [1961]1SCR248 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 thereafter 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 preempted and further because in the meanwhile 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.

7. Mr. Mukherjee on the other hand relied on the Supreme Court decision in the case of Hiralal Aggarwal v. Ram padarath, : [1969]1SCR328 where the application for pre-emption though filed on a day when the registration was yet to be made complete, the interim orderunder Section 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 this case the Supreme Court on review of facts found that the application itself 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.

8. 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 his order under challenge in C. O. 2141 of 1981. He relied on the decision of this court in the case of Kalipada Ghosh v. Dulal Chandra Ghosh ((1978) 82 Cal WN 950) (supra) where a learned single Judge had held that a person claiming pre-emption 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 pre-emption 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. and Mookerjee, J. in the case of Nuri Mian v. Ambica Singh (1916) 20 Cal WN 1099; (AIR 1917 Cal 716). But the real import to these decisions is that the pre-emptor must maintain his qualification entitling him to pre-empt from the date of the sale up to the date of decree or order for pre-emption (vide Bhagwan Dass v. Chet Ram, : [1971]2SCR640 ). 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. Bydoing so the court is not really dispensing with fulfilment of any requirements so laid down as erroneously thought of by the learned Subordinate Judge.

9. The point raised in our view, must be decided in the light of principles underlying Order 7, Rule 7 of the Civil P. C. In the case of Raicharan v. Biswanath, (1914) 20 Cal LJ 107 : (AIR 1915 Cal 103) 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 inappropriate 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 v. Keshwarlal Chowdhury. AIR 1941 FC 5 and the decision of the Supreme Court in the case of Surindra Kumar v. Gianchand. : [1958]1SCR548 . 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 been 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 such 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, bythrowing 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 (AIR 1915 Cal 103) (supra). In the case of Nuri Mian, (AIR 1917 Cal 716) (supra) this court took 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 Prosad AIR 1932 PC 57 where the Privy Council approved the view that the validity of the claim of preemption must be judged on facts existing on the date when a decree has to be passed. Again in the case of Siddheswara Prasad v. Gendu Mia, (1935) 61 Cal LJ 27 an application for pre-emption under Section 26-F of the Bengal Tenancy Act was filed without the necessary deposit which was to be made under Sub-section (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 pre-emption, 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. Mitter, J., in the case of Sachindra v. Trailakyanath, (1936) 40 Cal WN 1023 : (AIR 1936 Cal 576). We think the same principle should be followed in cases like the one now under consideration and though the application for preemption 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. Roychowdhury.

10. In the result, the revisional application in C. O. 2141 of 1981 succeeds and is allowed. The orders passed by the two courts below are set aside. Theapplication 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.

11. So far as C. R. 326 of 1980 is concerned, though the point of maintainability raised by Mr. Roychowdhury must fail, yet it is necessary to consider another point raised by the pre-emptee on merits. Evidence adduced by the parties indicates that a number of persons instituted O. 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 Rupees 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 pre-emption. 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 he 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 theplaintiffs 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 Rupees 3,000/-. 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 pre-emption, 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 he 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 revisional application succeeds and the Rule is made absolute. The order for pre-emption passed by the courts being set aside, the application for pre-emption stands dismissed. Parties do bear their costs throughout.

12. Leave under Article 133 (1) is prayed for and is refused

B. C. Chakrabarti, J.

I agree.

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