Mahaprasad Jana vs Lalit Mohon Bera

Soumen Sen, J.—This revisional application is arising out of an order dated 9th November, 2006 passed by the learned 2nd Civil Judge (Junior Division) Uluberia in connection with an application filed under Order 7 Rule 11 of the CPC by the opposite party No. 1 in the pending L.R. Misc. Case No. 7 of 2005. In or about 25th August, 2005, the petitioner filed an application u/s 8 of the West Bengal Land Reforms Act, 1955 for pre-emption of the suit property mentioned in the Schedule on the ground that the petitioner is co-sharer or co-owner in respect of the suit plot of land including various other plots of land having a raiyat interest. The opposite parties in collusion and conspiracy transferred the suit land secretly showing an inflated consideration in order to defeat the right of pre-emption of the plaintiff opposite parties by and under a deed of sale dated 14th June, 2004. The opposite party/petitioner became aware of the sale deed in the earlier part of the month of June, 2004 when Sri Mahaprasad Jana with the help of the family members and other associates attempted to assert joint possession of the suit land on the strength of the said deed of sale alleged to have been sold by the opposite party Nos. 2 to 7 as mentioned in L.R. Misc. Case No. 7 of 2005 in his favour. The said plaint in Paragraph 15 mentions that the cause of action for the suit arose on and from 25th May 2005 when the certified copies of the respective purchase deeds dated 14th June 2004 were obtained from the concerned Registry Office and on that basis filed an application for pre-emption. In the said proceeding, the petitioner herein, namely, Sri Mahaprasad Jana filed an application for rejection of the plaint, inter alia, on the ground that the suit is barred by limitation. The petitioner alleged that the plaintiff claimed in Paragraph 4 of the plaint that the sale was completed on 14th June, 2004 but the petitioner had filed a case u/s 8 of the West Bengal Land Reforms Act on 25th August, 2005. The plaint does not disclose any cause of action. Moreover under the amended section 8 of the West Bengal Land Reforms Act, the said suit is not maintainable.

The plaintiff has clearly stated that the provisions of section 5(5) of the West Bengal Land Reforms Act, 1955 was not followed and, accordingly, there cannot be any presumption of service of notice as contemplated u/s 5 of the said Act.

An application u/s 8 of the Act is in the nature of a plaint filed in the suit.

In the case of co-sharer raiyat of the holding an application for preemption has to be filed by him within three months of the service of notice given to him u/s 5(5). A distinction is drawn with regard to the service of notice in the case of bargadar and contiguous tenant and that of the co-sharer raiyat. It would evident from section 8 itself that so far as the case of bargadar and contiguous tenant is concerned, the period of limitation is three months or four months as the case may be is to be computed from the date of transfer in question irrespective of service of notice u/s 5(5) of the Act as sub-section (5) of section 5 does not contemplate any service of notice either on bargadar or upon a contiguous tenant.

A co-sharer raiyat who has not been served with a notice of transfer may apply for pre-emption u/s 8(1) of the Act within three years from the date of his knowledge on the strength of Article 137 of the Limitation Act, 1963. Ram Kumar Kajaria Vs. Chandra Engineering (India) Ltd., Dwijapada Haldar Vs. Prafulla Chandra Haldar,

When the pre-emptor is kept out of the knowledge of the sale by the fraud of the vendor, the pre-emptor may apply within 3 years from the date of the knowledge Sm. Radharani Dasi Vs. Atul Chandra Mondal and Another, .

The Limitation for exercising the right of pre-emption is 3 years in respect of a non-notified co-sharer. Gangadhar Bhandari Vs. Lalmohan Mukherjee,

In view thereof, prima facie on the basis of the averments made in the application filed u/s 8 of the West Bengal Land Reforms Act, 1955, it does not appear that the said application is barred by limitation. In any event, it is a mixed question of law and fact to be decided at the trial. It would be open for the petitioner/opposite party to raise all points including the point of limitation at the trial of the suit.

The observations made in the order are only for the purpose of deciding an application filed under Order 7 Rule 11 of the CPC and it should not be construed as a decision of merits of the dispute. Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.