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2003 DIGILAW 468 (CAL)

SANKAR GHOSH v. MINOR SRIMANTA GHOSH

2003-09-11

PRATAP KUMAR RAY

body2003
PRATAP KUMAR RAY, J. ( 1 ) THIS application under Article 227 of the Constitution of India has been filed by the plaintiff of Title Suit No, 168 of 1999, a pre-emption suit, under Section 22 of the HINDU SUCCESSION ACT, 1956 whereby and whereunder prayer of the plaintiff to amend the plaint for incorporation of plots of agricultural lands as were sold by the defendant No. 1 of the suit in favour of the defendant Nos. 1 and 2 by registered sale of deed dated 10th November, 1998, was rejected on the ground that plaintiff did not file the application of amendment within one year from the date of knowledge of such transfer and further on the ground that hearing of the suit has already reached to the stage of argument on completion of the evidence of both sides. This application has been resisted by the opposite parties, the purchasers of the plots. ( 2 ) LEARNED Advocate for the plaintiff-petitioner herein has strongly contended that under Section 22 of HINDU SUCCESSION ACT, 1956, an application for pre-emption will lie within one year from the date of possession of the properties concerned, which is the subject matter of the suit of pre-emption in terms of Article 97 of the Limitation Act and in that view of the matter, since the defendants-opposite parties 1 and 2 as yet not has taken the possession of the said agricultural lands, which is the subject matter of the amendment application, the application was not time barred and to that effect the finding of the learned Court below was erroneous. Learned Advocate for he petitioner further submits that the fact as has been brought by way of supplementary affidavit of opposition, filed by the opposite parties contending that the plots, which are subject matter of amendment application were already under possession of the defendants-opposite parties, which was admitted by the plaintiff when he moved first. Misc. Case No. 5 of 1999 under Section 8 of the West Bengal Land Reforms Act, is not the real State of affairs as in that Misc. Case as subsequently was withdrawn due to non-maintainability under Section 8 of the West Bengal Land Reforms Act, the plaintiff of the suit never admitted the possession of defendant-opposite parties in respect of the plots covered under the application of amendment. Case as subsequently was withdrawn due to non-maintainability under Section 8 of the West Bengal Land Reforms Act, the plaintiff of the suit never admitted the possession of defendant-opposite parties in respect of the plots covered under the application of amendment. Learned Advocate for the petitioner further argued that even if it is assumed that in view of the rival contentions of the parties, one is saying that the concerned plots of the said application is under their possession and other is denying, same accordingly has become a disputed question of facts which is to be resolved at the final hearing of the trial by taking evidence after allowing the amendment application. This proposition of law as thrashed by the learned Advocate for the petitioner is based on the judgment delivered by the Apex Court in the case Ragu Thilak D. John v. S. Rayappan and Ors. , reported in 2001 (2) SCC 472 . It has been further argued by the learned Advocate for the petitioner that amendment application should not be rejected by the Court of law when the other side could be suitably compensated. ( 3 ) ON the other hand, learned Advocate for the opposite parties of this application who are the defendants of the suit has countered the argument of the learned Advocate for the petitioner by contending, inter alia, that not only the admission of possession as made in the application under Section 8 of the Land Reforms Act registered as Misc. Case No. 5 of 1999 but also in the written statement as filed by the opposite parties, such fact of possession has been disclosed by filing the same on 2nd March, 2000 whereas amendment application was filed by the plaintiff-petitioner on 5th October, 2002, which is far beyond the period of the one year from the date of knowledge of such possession over the concerned plots by the opposite parties through the written statement as filed. Learned Advocate for the opposite parties relied upon a judgment of this Court passed in the case I. T. C. Limited v. M. M. P. Lines Pvt. Ltd. and Ors. , reported in AIR 1978 Calcutta 298 wherein the Court held that the period of limitation will run from the date of knowledge of certain facts through the written statement as filed. , reported in AIR 1978 Calcutta 298 wherein the Court held that the period of limitation will run from the date of knowledge of certain facts through the written statement as filed. Having regard to such, it is the contention of the learned Advocate for the opposite parties that in the instant case, amendment application accordingly was hopelessly time barred as the plaintiff-petitioner had the knowledge of possession of the concerned agricultural plots, which are the subject matter of amendment application even from the written statement on 2nd March, 2000. The application for amendment accordingly was required to be filed within one year in terms of Article 97 of the Limitation Act, which expired on 2nd March, 2001. Learned Advocate for the opposite parties also relied upon two judgments of the Apex Court passed in the case K. Raheja Construction Ltd. v. Alliance Ministries and Ors. reported in AIR 1995 SC 1768 and Radhika Devi v. Bajrangi Singh and Ors. , reported in AIR 1996 SC 2358 , which subsequently has been followed and relied in the case Mridula Ghosh and Anr. v. Mitra and Ghosh Publishers Company Pvt. Ltd. and Ors. , reported in 2002 (4) ICC 174, to contend that since the plaintiff-petitioner did not file the application for amendment within the period of limitation in terms of Article 97 of the Limitation Act, the opposite parties accordingly have accrued a right which cannot be taken away by the Court of law. Learned Advocate for the opposite parties further relied upon a latest judgment of the Apex Court passed in the case Vishwambhar and Ors. v. Laxminarayana (Dead) Through L. Rs. and Anr. , reported in 2001 WBLR (SC) 525 and more exactly paras 9 and 10 thereof, to contend that the amendment application, which is barred by limitation, cannot be allowed. ( 4 ) HAVING regard to the rival contention of the parties, now the impugned order to be tested under the anvil of legality and validity. From the impugned order, it appears that the learned Court below rejected the amendment application filed by the plaintiff on 5th October, 2002 on the ground that within one year from the date of knowledge of sale of the property in terms of the sale deed dated 10th November, 1998 application for amendment was not filed. From the impugned order, it appears that the learned Court below rejected the amendment application filed by the plaintiff on 5th October, 2002 on the ground that within one year from the date of knowledge of sale of the property in terms of the sale deed dated 10th November, 1998 application for amendment was not filed. The observation of the learned Court below reads thus :"limitation for filing application for pre-emption under Section 22 of the HINDU SUCCESSION ACT, 1956 is one year from the date of knowledge about transfer. The plaintiff's claim for pre-emption in respect of agricultural lands transferred by sale deed dated 10. 11. 98 is barred by law of limitation. " ( 5 ) THE aforesaid observation of the learned Court below is not legally sustainable in view of the settled legal position that an application under Section 22 of the HINDU SUCCESSION ACT, 1956 is required to be filed within the period of limitation as prescribed under Article 97 of the Limitation Act, which provides, inter alia, that such application to be filed within one year from the date of possession of the concerned plots impeached in the preemption application. By the registered deed of sale dated 10th November, 1998, the defendant No. 1 had sold five plots amongst which two were homestead plots and the other three were agricultural plots. The first application for pre-emption under Section 8 of the West Bengal Land Reforms Act was filed by the plaintiff registered as Misc. Case No. 5 of 1999 praying pre-emption in respect of all the aforesaid five plots, but the same was withdrawn as the application was not maintainable under the said provision. Subsequently, the plaintiff filed the present suit in the Court below praying pre-emption under Section 22 of the HINDU SUCCESSION ACT, 1956 only in respect of the two homestead plots namely Plot No. 400 and 535. So far as the agricultural plots are concerned, there was no whisper in the said pre-emption application as was filed in the nature of a suit. The opposite parties filed a written statement on 2nd March, 2000 contending, inter alia, that all the plots sold under the said sale deed were already in possession of the defendant-opposite parties, though in the plaint, the plaintiff contended otherwise. The opposite parties filed a written statement on 2nd March, 2000 contending, inter alia, that all the plots sold under the said sale deed were already in possession of the defendant-opposite parties, though in the plaint, the plaintiff contended otherwise. The observation and findings of the learned Court below that within one year from the date of knowledge of the sale, the application for pre-emption was required to be filed to save the period of limitation, is contrary to the statutory provision under Article 97 of the Limitation Act, which reads thus :"97 to enforce right of pre-emption whether the right is founded on law or general usage or on special contract. One year When the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold, or where the subject matter of the sale does not admit of physical possession of the whole or part of the property, when the instrument of sale is registered. " ( 6 ) ON bare perusal of the said statutory provision, it appears that the delivery of possession and/or taking over of physical possession, is the sine qun non of starting point of limitation in terms of said Article, which is applicable in the case of pre-emption application under Section 22 of the HINDU SUCCESSION ACT, 1956. This point is settled by the judgment of this Court passed in the case Tarak Das Ghosh v. Sunil Kumar Ghosh, reported in AIR 1980 Calcutta 53. 2004 (1) CLJ (Cal)] Shyamali Mitra v. Manindra Nath Chattorjee 103 ( 7 ) HENCE, the finding and observation of the learned Court below is not only erroneous but contrary to statutory provision. Furthermore, the mother reason as assigned by the learned Court below to reject the amendment application that the suit already reached at the final stage of argument, on completion of the evidence of the parties, is also not legally acceptable in view of the settled law that amendment application could be filed at any stage even in the appellate stage, in terms of the statutory provision to that effect, which has not placed any embargo about time limit of filing such amendment application in the angle of 'progress status' of the suit Court. Amendment application is to be disposed of within three months from the date of communication. Impugned order accordingly is set aside. Amendment application is to be disposed of within three months from the date of communication. Impugned order accordingly is set aside. The application is allowed. Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously. S. K. G.