At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE HIRANMAY BHATTACHARYYA
For the Petitioner: Prasanta Bishal, Advocate. For the Respondent: ------
The instant application under Article 227 of the Constitution of India is at the instance of the pre-emptor in a proceeding under Section 8 and 9 of the West Bengal Land Reforms Act 1955 (For short "the said Act") and is directed against an order dated March 30, 2019 passed by the Learned Additional District Judge, Fast Track, First Court, Contai, Purba Medinipur in Misc Appeal No. 2 of 2017 affirming the order dated September 28, 2016 passed by the Learned Civil Judge Junior Division First Additional Court, Contai in J Misc Case No. 29 of 2015.
The petitioner herein filed an application under Section 8 and 9 of the West Bengal Land Reforms Act 1955 before the Learned Civil judge Junior Division, First Additional Court, Contai which was registered as J Misc Case No. 29 of 2015.
The facts stated in the said application in a nutshell is as follows.
Iswar Chandra Maity and his two brothers purchased 471/2 decimals of land in the suit plot by a registered sale deed being no. 3763/59 which is the "A schedule" property. Iswar Chandra Maity while in ejmal possession of the said land died leaving behind him surviving two sons namely Amiya Kumar Maity and the petitioner and two daughters. The A schedule property is "Bastu" in nature. Amiya Kumar Maity sold the "Ka" schedule property, which is a portion of the said A schedule property, in favour of the opposite party herein by a registered deed of sale executed on 25.06.1996 and also registered on the same day. The sale deed was entered into the volume on 08.01.2008 . The opposite party did not come to possess the "Ka" schedule property. All of a sudden, the opposite party threatened to alienate the Ka schedule property on June 4, 2012 disclosing about his purchase. The petitioner is a non-notified co-sharer. By practicing fraud Amiya Kumar Maity and the opposite party collusively got the sale deed executed and registered in respect of Ka schedule property which was beyond the knowledge of the petitioner. The petitioner had good relation with the opposite party. The opposite party requested the petitioner to put his signature on a single blank page wherein only the word "Ishad" was written disclosing that the same is necessary to become a witness of a deed of gift. Relying upon such statement of opposite party, the petitioner put his signature on that page. It was further alleged that the consideration amount of Rupees One Lakh mentioned in the impugned sale deed was an inflated one and the actual consideration was Rs. 40,000/- only.
The opposite party contested the miscellaneous case by filing a written objection denying the material allegations contained therein. It was contended by the opposite party that Iswar Chandra Maity, Dhirendra Chandra Maity and Ramani Kanta Maity purchased 471/2 decimals of land on the north eastern side of Dag no. 2 from one Bhim Charan Maity on September 12, 1959. Thus, 15-5/6 decimals of land was under possession of Iswar Chandra Maity as per their respective shares. After his demise, his two sons namely Amiya Kumar Maity and Chandan Maity and two daughters namely Pratima Maity and Shikha Rani Patra and the widow namely Maya Maity got the property in equal shares i.e. 1/5th share each. Amiya Kumar Maity being in possession of the disputed property sold out the same in favour of the opposite party. It was asserted that the petitioner was present at the time of registration and execution of the said deed and also had full knowledge of the transaction. It was also stated therein that the opposite party has constructed a pucca building over the schedule property and runs a shop at the ground floor of the said building.
Learned Trial Judge by a judgment and order dated September 28, 2016 dismissed the J misc case on contest upon holding that the misc case was barred by limitation.
The petitioner challenged the aforesaid order in the miscellaneous appeal being no. 52 of 2016 which was subsequently re-numbered as Misc Appeal No. 2 of 2017. The Learned Additional District Judge Fast Track First Court, Contai by a judgement and order dated March 30, 2019 dismissed the appeal on contest thereby affirming the judgment and order passed by the Learned Trial Judge.
Being aggrieved by the judgment and order dated March 30, 2019 passed in Misc Appeal No. 2 of 2017, the petitioner has preferred the instant application under Article 227 of Constitution of India.
The Learned Advocate for the petitioner submits that the petitioner is a non-notified co-sharer as no notice under Section 5(5) of the said Act was served upon him. He further submits that in the impugned sale deed being Exhibit 1 it was stated that there is no co- sharer of the disputed case property. The opposite party and his vendor collusively got the impugned deed executed and registered beyond the knowledge of the petitioner. The opposite party also did not come to possess the property purchased by him. Thus, fraud was practiced upon the petitioner with the object of concealing the impugned transaction. He submits that in case of fraud, the period of limitation does not begin to run till such fraud is discovered. He submits that fraud was discovered only when the opposite party threatened to alienate the property. He also submits that in the instant case the petitioner shall be entitled to the benefit of exclusion of the time period he was prevented from knowing about such transfer under Section 17 of the Limitation Act 1963 while applying for pre-emption. In support of his submission the learned Advocate for the petitioner relies upon a judgment in the case of Aparna Ghosh versus Swarup Chand Roy Chowdhury reported at 2005(1) CHN 140. He, thus, concludes by submitting that the learned judges of both the courts below failed to extend the benefit of Section 17 of the Limitation Act which the petitioner is entitled to.
I have heard the Learned Advocate for the petitioner and have considered the materials-on-record.
It is not in dispute that the impugned sale deed being Exhibit 1 was executed on 25.06.1996 and the same was entered into volume on January 8, 2008. The petitioner filed the J misc case on 13.06.2012.
The right of purchase in terms of Section 8 of the said Act can be exercised by three classes of persons namely bargadar, co-sharer and a raiyat possessing land adjoining to the transferred land. The right of pre-emption arises in favour of the aforesaid persons upon a transfer of a portion or share of a plot of land of a raiyat to any person other than a co-sharer of a raiyat in the plot of land. Upon such transfer being made, any co-sharer of a raiyat in the plot of land may within three months of the service of notice under sub-section 5 of Section 5 of the said Act apply to the munsiff having territorial jurisdiction for transfer of the said portion or share of the plot of land to him. Thus, the co-sharer has to file an application for pre-emption within 3 months of the service of notice upon him under Section 5(5) of the said Act.
The dispute arises when notice under Section 5(5) of the said Act is not served upon the co-sharer. Admittedly no such notice has been served upon the petitioner in the instant case. The purpose of notice under Section 5(5) of the said Act is to make the co-sharer of a raiyat aware of the transfer to enable him to exercise the statutory right prescribed under Section 8 of the said Act.
Now it is to be examined as to how and when the petitioner became aware of the transfer. The petitioner is the attesting witness in the sale deed being Exhibit 1. Though it is the settled law that the attesting witness cannot be presumed to be aware of the contents of the deed, but the evidence of the said witness is to be taken into consideration to ascertain as to whether the petitioner was actually aware of the contents of the said deed. The petitioner adduced evidence as PW1. In his cross examination he admitted that exchange of rupees forty thousand in respect of Exhibit 1 was done in his presence. He also denied that rupees one lakh was paid as a consideration money in his presence. Though the petitioner in his evidence stated that he will try to produce the scribe and other witnesses of Exhibit 1 as witnesses in the instant Misc case in order to prove that the signature of the petitioner was obtained on a blank paper but the petitioner did not take any initiative to bring them before the Court. The scribe and the other witnesses of Exhibit 1 are material witnesses for proving the fraud alleged to have been practiced upon the petitioner. The learned judge of the court of appeal below was thus perfectly justified in drawing an adverse inference against the petitioner for non-examination of the aforesaid material witnesses.
The petitioner has failed to prove the case made out in the plaint with regard to fraud. The learned judges of both the court below upon proper appreciation of the pleadings of the respective parties as well as the evidences on record concurrently held that the petitioner being one of the attesting witnesses had full knowledge of the contents of the sale deed and also that he acquired the knowledge regarding the execution of the deed being Exhibit 1 at the time of execution of the same.
Mere non-compliance of the provisions regarding service of notice under Section 5(5) of the said Act does not amount to fraud in the instant case as it has been held that the petitioner was well aware of such transfer on the date of execution of the deed.
Thus the provision of Section 17 of the Limitation Act cannot come to the aid of the petitioner and the learned judges of both the courts below were justified in holding that the misc case was barred by limitation.
The findings of the learned judges of the courts below with regard to the date of acquisition of knowledge about the transfer and also that he was aware of the contents of the deed of sale are all findings of fact. It is the settled law that this court while exercising its jurisdiction under Article 227 of the Constitution of India cannot re- appreciate the evidence or disturb the concurrent findings of fact based on correct and proper appreciation of evidence.
In Aparna Ghosh (supra) it has been held that if a transaction is effected by not complying wi
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th the provisions regarding service of notice under Section 5(5) of the said Act in order to conceal the transaction from the co-sharer such concealment definitely amounts to fraud. It was further held that the provision of Section 17 of the Limitation Act shall apply to a proceeding under Section 8 of the said Act. In the instant case, the petitioner has failed to prove that the right of the petitioner was infringed by the opposite party by practicing fraud. On the contrary it has been concurrently held by both the Courts below that the petitioner has failed to prove that fraud was practiced upon the petitioner with an object to conceal the impugned transaction. Thus, the judgment of Aparna Ghosh (supra) cannot have any manner of application in the instant case for the reasons as stated herein before. The impugned orders also do not suffer from perversity warranting interference under Article 227 of the Constitution of India. CO No. 2630 of 2019 is dismissed without, however, any order as to costs. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties on priority basis.