Sri Bhuban Chandra Samanta Vs Jamini Bhusan Kar and Others

Mr. Justice Murari Mohan Dutt

1. These six Rules are directed against the Order of learned Munsif, 3rd Court, Midnapur dismissing the applications of the Petitioner for pre-emption u/s 3(1) of the West Bengal Land Reforms Act, 1956 hereinafter referred to as ''the Act''.

2. The opposite party No. 2, Smt. Jaminibala Dassi was the sole owner of the occupancy raiyati holding recorded in the record of rights as interest No. 58. On April 6, 1964, the opposite party No. 2 executed six kobalas in favour of six different persons, thereby transferring the holding in specific portions in their favour. The kobalas were registered on the same day. The Petitioner claiming to be a raiyat possessing land adjoining the holding in question filed applications for pre-emption against the six transferees, u/s 8(1) of the Act. The Revenue Officer, who hoard the said applications by his order passed u/s 9 of the Act, allowed the claim of the Petitioner for pre-emption. On appeals preferred by the transferees against the said order of the Revenue Officer, the learned Munsif dismissed the applications of the Petitioner on the ground that as there was no co-sharer of the holding which was owned solely by the opposite party No. 2, the Petitioner had no right of pre-emption u/s 8 of the Act.

3. Mr. Bhunia, learned Advocate for the Petitioner, challenged before me the said finding of the learned Munsif and strenuously urged that the right of the pre-emption of the petition or did not depend on the holding being occupied by co-sharers. Section 8(1) of the Act provides that: -

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 give under Sub-section (5) of Section 5, or any raiyat possessing land adjoining such holding may, within four months of date of such transfer, apply to the Revenue Officer specially empowered by the State Government in this behalf, for transfer of the said portion or share of the holding to him, subject to the limit mentioned in Sub-section (3) of Section 4, on deposit of the consideration money together with a further sum of 10 per cent of that amount.

In view of the expression "any person other than a co-sharer", the section contemplates that the holding must be hold under joint ownership and not under the ownership of single individual. This is also apparent from the first proviso to Section 8(1) of the Act, which provides that a co-sharer raiyat will have preferential right as against a contiguous tenant to have such portion or share of the holding transferred to him, where both of them are applicants at the same time. The section restricts the owner''s unfettered right of sale and compels him to sell the share or portion of the holding either to his co-sharer or to contiguous tenant, as the case may be. It is now an accepted legal principle that where the provision of a statute providing for right of pre-emption shackles the freedom of transfer, the same should be strictly construed and, unless a case strictly within the provision, claim for pre-emption should not be allowed. Section 8(1) of the Act construed in the light of the aforesaid legal principle, leaves no room for doubt that the holding, a share or portion of which is transferred, must be hold under joint ownership. The contention of Mr. Bhunia that even though there is no co-sharer of the holding the contiguous raiyat has the right of pre-emption in case of a transfer of a share or portion of the holding, is overruled.

4. It was next contended by Mr. Bhunia that although the transfer by the kobalas were made on the same day and although all the kobalas were registered on the same day, as soon as the first transfer was made by the opposite party No. 2 in favour of opposite party No. 1, the opposite party No. 1, the transferee, became the co-sharer of the transferor, the opposite party No. 2, and the subsequent transfers not having been made in favour of opposite party No. 1 who became the co-sharer, the Petitioner being a contiguous raiyat was entitled to pre-empt the subsequent transferee who were all strangers. Attractive though the contention is, I am unable to accept the same. As aforesaid, the opposite party No. 2 executed six kobalas, all on April 6, 1964, thereby transferring the entire holding to different transferees in specific portions. The right of pre-emption arises only out of a valid and complete sale. A sale of immovable property is not complete until the registration of the document of sale is completed, and the registration of the document of sale is not complete till the document to be registered has been copied out in the records of the Registration Office as provided in Section 61 of the Registration Act. Vide (1) Ram Saran Lall and Others Vs. Mst. Domini Kuer and Others, . In the instant cases, the kobalas were registered on the same day and there is no evidence at what point of time each document was copied in the records of the Registration Office. It has, however, been argued that each of the kobalas bears a serial number put by the registering authority at the time it was copied in the registration records. From the serial numbers of the kobalas, the order in which they were registered can be ascertained and as soon as that is done, it can be said with definite certainty which of these kobalas was registered first, so that the transferee under that kobalas *** the first transferee in point of time. Similarly the point of time in respect of the other kobalas can also be found. Even assuming that it is possible to ascertain the order of registration of the said kobalas, the contention of Mr. Bhunia cannot be accepted. When a raiyat transfers the entire holding to different persons in specific shares or portions, the transfer deeds having been executed on the same day and registered simultaneously on the same day and not on different dates, such transfers, in my view, are tantamount to a single transfer in respect of the entire holding, as if the transferees jointly purchased the holding by a single document, each purchasing a specific share or portion, so that there is no question of any right of pre-emption of a raiyat possessing land adjoining the holding, u/s 8(1) of the Act.

In the result, these Rules are discharged. But in the circumstances there will be no order for cost.