C.O. No. 3395 of 2006. Case: Sri Jagannath Dhali and Ors. Vs Sri Ram Chandra Mandal and Ors.. High Court of Calcutta (India)
| Case Number | C.O. No. 3395 of 2006 |
| Counsel | For Appellant: Tapabrata Chakraborty, Bibek Tripathy and Bholanath Ghosh, Advs. And For Respondents: Probal Mukherjee and Rajat Datta, Advs. |
| Judges | Biswanath Somadder, J. |
| Issue | West Bengal Non-Agricultural Tenancy Act - Section 8; West Bengal Land Reforms Act, 1955 - Sections 5(5), 7, 8 and 8(1); West Bengal Land Reforms (Amendment) Act, 1972 - Section 7; Registration Act, 1908 - Sections 47, 49, 59 and 60; Transfer of Property Act, 1882 - Section 17; Specific Relief Act, 1877; Bengal Tenancy Act - Section 26F; Civil ... |
| Citation | AIR 2010 Cal 32 |
| Judgement Date | November 20, 2009 |
| Court | High Court of Calcutta (India) |
Judgment:
Biswanath Somadder, J.
1. Heard the learned Advocates appearing on behalf of the parties.
2. The instant application under Article 227 of the Constitution of India is directed against an order dated 22nd June, 2006, passed by the learned Additional District Judge, Ist Fast Track Court, Hooghly, in Miscellaneous Appeal No. 105 of 2003, dismissing the said Miscellaneous Appeal.
3. The petitioners in the instant application were the appellants and the opposite party Nos. 1 to 5 herein, being the respondents in the said appeal; the rest being proforma respondents/opposite parties.
4. By the order impugned, the learned court below while dismissing the Miscellaneous Appeal, observed inter alia, that transfer of an immovable property takes effect from the date of registration and not from the date of its execution and therefore it did not find anything illegal in the pre-emptors seeking preemption in respect of transfer of the plot-in-question, being plot No. 172, by six separate deeds executed on different dates and held the transfers so made under those deeds were to be considered as a single one.
5. The genesis of the matter culminating in the order impugned is as follows:
The predecessor-in-interest of the opposite party Nos. 1 to 5 herein (Tarak Chandra Mondal) filed an application initially under Section 8 of the West Bengal Non-Agricultural Tenancy Act; later that application was converted to one under Section 8 of the West Bengal Land Reforms Act, 1955, seeking pre-emption, on the ground of co-shareship as well as contiguous land ownership, in respect of 62 decimals out of.72 decimals in plot No. 172, appertaining to Khatian No. 378 in Mouja Shikhira, District- Hooghly. It was his case that he was a Raiyat in respect of 0.4 decimal in plot No. appertaining to khatian No. 109 and was a co-sharer in the original plot No. 172 and that he owned plot Nos. 170 and 171, measuring 0.35 and 0.33 decimal respectively, which were situated contiguous to the plot-in-question, being plot No. 172. The opposite party Nos. 6 to 13 herein, had sold their.62 decimals of land in plot No. 172 to stranger purchasers, being the petitioners herein, by six separate registered deeds of sale No. 5122-27 executed on 5th October, 1982, 6th October, 1982 and 7th October, 1982. It was the specific case of the opposite party Nos. 1 to 5, being the applicants before the learned Trial Court, that the sale executed by the proforma respondents/opposite party Nos. 6 to 13 in favour of the petitioners herein was made without notifying them at a consideration of Rs. 3700/-. The petitioners herein, as opposite party Nos. 1 to 5 before the learned Trial Court, contested the case before the learned Trial Court by filing a written show cause. It was their specific case that being the owners of the pond in plot No. 173, situated adjacent to the plot No. 172, they had their right to enjoy fruits of the trees of the pond and by that way they had become contiguous owners, having the largest boundary with plot No. 172. They also denied that Tarak Chandra Mondal was not notified about the transfer of the plot, rather he was first to be offered with the proposal to purchase the plot, but without any result.
6. The learned Trial Court after considering the respective contentions, allowed the Miscellaneous pre-emption case and held, inter alia, that the original applicant (Tarak Chandra Mondal), was the co-sharer as well as the contiguous land-owner on the basis of evidence adduced which included the report of the Advocate Commissioner and the RS Map of Mouja Shikhira.
7. Subsequently, the petitioners herein preferred an appeal before the learned court below under Section 9 of the West Bengal Land Reforms Act, 1955, wherein it was contended, inter alia that the learned Trial Court had failed to appreciate the fact that they, being the owners of plot No. 173, i.e. the pond and its catchment area, had the largest common boundary adjacent to plot No. 172, which was much bigger than that of the opposite party Nos. 1 to 5 herein. It was further argued by the appellants before the learned court below that the transfer of the plot-in-question was made by six separate deeds which were executed on different dates, and as such, the transfer made under those instruments could not be made the subject matter of a single application for pre-emption. On behalf of the opposite party Nos. 1 to 5 herein it was argued before the learned court below that the appellants had no right to claim themselves as contiguous land owners, being the owners of the pond. It was also submitted that seeking relief for pre-emption in respect of the plot-in-question was maintainable in law, even though the transfer was made by six separate deeds of sale. It was further contended that transfer of an immovable property takes effect from the date of registration and not from the date of its execution. The learned court below, after taking into consideration the respective contentions of the parties, proceeded to dismiss the appeal preferred by the petitioners herein by passing the impugned order.
8. The only legal issue that comes up for consideration before this Court is whether a single composite application seeking pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955 is maintainable upon transfer of a single plot of land by six separate deeds of transfer executed on various dates, by virtue of the said deeds being registered on a single date, i.e., on 07th October, 1982.
9. Learned Advocate appearing on behalf of the petitioners in this regard has relied on a judgment of the Supreme Court in the case of Gurdit Singh and Ors. v. Munsha Singh and Ors. reported in (1977) 1 SCC 791. Relying on this judgment he submitted that connotation of cause of action stands detailed therein and there is a difference between accrual of the right to pre-empt and the accrual of a cause of action. He further submitted that though by virtue of the fact that the date of registration of the said six deeds were identical and the right to pre-empt may be construed to have accrued from the date of such registration, but the said six deeds having been executed on different dates did not give rise to one single cause of action and accordingly such different transfers and separate causes of action could not be made the subject-matter of a single application for pre-emption.
10. Relying on another Supreme Court judgment, in the case of Lachhman Daas v. Jagat Ram and Ors. reported in...
To continue reading
Request your trial