Smarajit Mitra, vs Sukanta Kumar Saha

Biswajit Basu, J

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

None appears on behalf of the opposite party in spite of service.

The instant revisional application under Article 227 of the Constitution of India is at the instance of the pre-emptee (since deceased) 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 the judgment and order dated March 11, 2010 passed by the Additional District Judge, Arambagh in Miscellaneous Appeal no. 08 of 2009 thereby affirming the judgment and order no. 36 dated January 20, 2001 passed by the 1st Court of learned Civil Judge (Junior Division) Arambagh, District. Hooghly in Miscellaneous Case No. 02 of 2005.

The suit plot originally belonged to one Mr. Prakash Chandra Saha, which on his death devolved upon his widow, four sons and three daughters.

The said heirs of said Prakash Chandra Saha while possessing and enjoying the suit plot as co-sharers, one of them namely, Sahadeb Saha sold his share in the suit plot to the pre-empee by a deed of sale dated Magh 14, 1409 B.S. corresponding to January 18, 2003.

The pre-emptor filed an application under Section 8 of the said Act to pre-empt the said sale on the ground that he being a non-notified co-sharer of the suit plot is entitled to pre-empt the said sale.

The said application of the opposite party was registered before the learned Trial Judge as Miscellaneous Case no. 02 of 2005.

The pre-emptee objected the said prayer of the pre-emptor, inter alia, on the ground that the application for pre-emption is not maintainable being barred by limitation.

The learned Trial Judge overruled the said objection of the pre-emptee holding that the limitation to exercise the right of pre-emption under Section 8 of the said Act on the ground of non-notified co-sharership is governed by the Article 137 of the Limitation Act, 1963 and the application for pre-emption since was filed within the period of limitation prescribed under the said Article of the said Act is not barred by law of limitation.

The pre-emptee aggrieved by the said judgment and order of the learned Trial Judge preferred the connected Miscellaneous Appeal and the Appeal Court below has affirmed the judgment and order of the learned Trial Judge by the order impugned.

It appears from the order impugned that the registration of the deed of sale sought to be pre-empted was completed on February 04, 2003. The application for pre-emption was registered before the learned Trial Judge as Miscellaneous Case no. 02 of 2005, therefore, the said application appears to have been filed in the year 2005.

Divergent views were expressed by different benches of the same strength of this Court on the issue of limitation to exercise the right of pre-emption under Section 8 of the said Act on the ground of non-notified co-sharership as such the following question was referred to the larger Bench for decision in the case of Nurul Islam Vs. Esratun Bibi reported in 2017(3) CHN (CAL) 678 :-

"When does the period of limitation being to run and when does such period end for a pre-emption application under section 8 of the West Bengal Land Reforms Act, 1955 at the instance of a co-sharer on whom notice of transfer as contemplated by section 5(5) of the said Act has not been served?"

The larger Bench answered the said question holding that Article 137 of the Limitation Act, 1963 has no manner of application in reckoning the said period of limitation, such limitation shall be governed by the Article 97 thereof.

That being the position of law, the order impugned is set aside.

C.O. 17 of 2012 is disposed of by directing the Additional District Judge Arambagh, Hooghly, to decide the Miscellaneous Appeal no. 08 of 2009 afresh in the light of the judgment of the Special Bench referred above.

It is made clear that the Appeal Court below shall decide the maintainability of the said miscellaneous case on the point of limitation only on the basis of the materials already on record.

The learned appeal Court below is requested to dispose of the said appeal expeditiously.

There shall be no order as to costs.

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