Minati Mondal & Ors vs Akinchan Gayen

Biswajit Basu, J

Affidavit of service filed in Court today be kept with the record.

None appears on behalf of the opposite parties to oppose the present revisional application in spite of service.

The revisional application under Article 227 of the Constitution of India is at the instance of the pre-emptees in a proceeding under Sections 8 & 9 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as "the said Act" in short) and is directed against an order dated December, 22, 2017 passed by the Learned Additional District Judge Baruipur in Misc. Appeal no. 14 of 2015 thereby affirming the order no. 95 dated March 31, 2015 passed by the 1st Court of learned Civil Judge (Junior Division) Baruipur, District 24 Parganas, South in Misc. Case no. 68 of 2013.

The opposite party filed an application under Section 8 of the said Act to pre-empt the disputed sale on the ground that the vendor of the pre-emptees/petitioners is the co-sharer of the pre-emptor/opposite party in respect of the suit land which has been transferred in favour of the pre-emptees/petitioners who are strangers to the suit land and without serving the required statutory notice under sub-Section 5 of Section 5 of the said Act upon him.

The said application for pre-emption was registered before the learned Trial Judge as Misc. Case no. 68 of 2013.

The pre-emptees/petitioners objected the said claim of the pre-emptor/opposite party on the ground that the application for pre-emption is barred by law of limitation.

The learned Trial Judge overruled the said objection of the pre-emptees/petitioners holding that since the application for pre-emption was filed within one year from the date of completion of the registration of the impugned deed of sale, the same was filed within time and allowed the said Misc. case.

The appeal Court below placed reliance on the Division Bench Judgment of this Court in the case of Nurul Islam -Vs- Esratun Bibi reported in (2017) 3 CHN 678 to hold that the period of limitation for filing an application for pre- emption of a sale on the ground of non-notified co-sharer shall be one year from the dated of completion of the registration of the deed of sale sought to be pre-empted in terms of Article 97 of the Limitation Act, 1963 and on the said ground affirmed the judgment and order of the learned Trial Judge.

Mr. Banerjee, learned Advocate appearing on behalf of the petitioner drawing my attention to the impugned deed of sale being Exhibit. 3 in the Misc. case submits that in the impugned deed of sale the vendor of the pre-emptees/petitioners admits delivery of possession of the suit land in favour of the pre-emptees/petitioners, as such, in terms of Article 97 of the Limitation Act, 1963, the starting point of limitation for the purpose of filing of an application under Section 8 of the said Act to pre-emept the disputed sale on the ground of non-notified co-sharer shall be the date of delivery of such possession of the suit land in favour of pre-emptees/petitioners and in the present case the said date is the date of execution of the impugned deed of sale. He submits that both the learned Courts below have failed to appreciate the scope of Article 97 of the Limitation Act, 1963 and have erroneously reckoned the period of limitation for filing the said Misc. case from the date of completion of the registration of the disputed sale when the possession of the suit land was delivered to the pre-emptees/petitioners by the vendor of the impugned deed of sale on the date of execution of the said deed.

On perusal of the materials on record it appears that the date of execution of the impugned deed of sale is January 27, 2006. In the said deed of sale the vendor admits the delivery of possession of the suit land in favour of the pre-emptees/petitioners.

In terms of Article 97 of the Limitation Act, 1963 the time will begin to run to enforce a right of preemption from the date when the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold.

The Division Bench in paragraph. 36 of the decision reported in 2017 (3) CHN 678 (supra) has held so. The said paragraph of the said report being relevant is quoted below:-

"36. The non-notified co-sharer's right to enforce pre-emption is founded on law i.e West Bengal Land Reforms Act, 1955. Since the pre-emption proceeding is regarded as a suit, in our view Article 97 is the appropriate provision which will govern the period of limitation and the starting point thereof so far as the application for pre-emption filed by the non-notified co-sharers are concerned. As such, the period of limitation for filing an application for pre-emption by the non-notified co-sharers will be one year and the starting point of limitation will be different depending upon circumstances as prescribed in the third column of the said schedule. As per the third column of the said schedule the time will begin to run from the date when the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold (emphasis supplied). Again when the property is of such nature where the subject matter of sale does not admit of physical possession of the whole or part of the property then from the date when the instrument of sale is registered meaning thereby when the registration is complete as per Section 61 of the Registration Act."

In the present case the impugned deed of sale was executed on January 27, 2006 and the application for pre-emption was filed on August 30, 2007 as such in the facts and circumstances of the present case, as discussed above the objection of the pre-emptees/petitioners as to the maintainability of the application for pre-emption on the ground of limitation needs to be addressed afresh.

The order impugned as well as the order of the learned Trial Judge both are therefore set aside and C.O 922 of 2018 is disposed of with the direction upon the 1st Court of learned Civil Judge (Junior Division) Baruipur to decide the Misc. Case No. 68 of 2013 afresh in the light of the observations made hereinabove.

The connected application being CAN No. 7012 of 2018 is also disposed of accordingly.

The learned Trial Judge is requested to dispose of the said Misc. case expeditiously.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.