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2019 DIGILAW 538 (CAL)

Bhaktipada Ghosh v. Jagannath Ghosh Alias Mondal

2019-04-26

BIBEK CHAUDHURI

body2019
JUDGMENT : 1. The instant revision under Article 227 of the Constitution of India is filed by the pre-emptees/petitioners challenging legality, validity and propriety of the order dated 31st May, 2016 passed by the learned Additional District Judge, Fast Track, 2nd Court at Kandi in the district of Murshidabad in Misc. Appeal No. 14 of 2010 affirming the order dated 31st August, 2010 passed by the learned Civil Judge (Junior Division), 2nd Court at Kandi, Murshidabad in Misc. Case No. 27 of 2007 under Section 8 of the West Bengal Land Reforms Act (hereafter the said Act). 2. The opposite parties as petitioners filed an application under Section 8 and 9 of the said Act stating, inter alia, that they inherited the case land mentioned in schedule 'Ka' of the said application after the death of their father Late Srishtidhar Mondal. The petitioners had been possessing the said 'ka' schedule property jointly. One Somnath Kabiraj and Dhirendranath Kabiraj are the owners of the land mentioned in schedule 'kha' of the application. The said 'kha' schedule property is part and parcel of 'ka' schedule property and accordingly, the petitioners claimed to be co-sharers in respect of 'kha' schedule property. It is alleged by the petitioners that the said Somnath Kabiraj and Dhirendranath Kabiraj transferred the 'kha' schedule property to the opposite parties/petitioners herein by executing a deed of sale without serving any notice to the petitioners/opposite parties herein under Section 5 of the said Act. The present opposite parties came to know about such transfer of 'kha' schedule land in favour of the present petitioners sometimes in the month of May, 2007 and on 22nd May, 2007, they came to know that the case land was sold out by the said Kabiraj brothers in favour of the present petitioners at a consideration price of Rs.52,000/-, though in the deed the consideration price was shown inflated at Rs.1,10,000/-. 3. The petitioners herein as opposite parties of the said pre-emption case no. 28 of 2007 contested the said Misc. Case by filing a written objection wherein they denied material allegations made out by the petitioners in the application under Section 8 of the said Act. Specific case of the present petitioners was that the said Kabiraj brothers, vendors of the present petitioners first approached the opposite parties herein to purchase the case land at a consideration price of Rs.1,10,000/-. Case by filing a written objection wherein they denied material allegations made out by the petitioners in the application under Section 8 of the said Act. Specific case of the present petitioners was that the said Kabiraj brothers, vendors of the present petitioners first approached the opposite parties herein to purchase the case land at a consideration price of Rs.1,10,000/-. But the opposite parties were not agreeable to purchase the case land paying highest consideration money. Thereafter, the vendors sold out the case land by executing a registered deed of sale on 22nd August, 2005. The opposite parties further pleaded that they are the contiguous land owners in respect of the case land having longest common boundary and the petitioners have no right to claim pre-emption of the case land. Accordingly, they prayed for dismissal of the application under Section 8 and 9 of the said Act. 4. The learned Civil Judge (Junior Division), 2nd Court at Kandi on due consideration of the evidence adduced by the parties in support of their respective cases, both orally and documentary, allowed the said application under Section 8 and 9 of the said Act. 5. The order passed by the Trial Court in Misc. Case No. 28 of 2007 was assailed in appeal by the pre-emptees/petitioners, vide Misc. Appeal No. 14 of 2010. However, the said Misc. Appeal was also dismissed on contest by the learned Additional District Judge, 2nd Fast Track Court, Kandi, Murshidabad, thereby affirming the Judgment and order passed by the learned Trial Court. 6. The said order of dismissal of Misc. Appeal is under challenge in the instant revision. 7. At the time of hearing, learned Advocate for the petitioners only raised the question of limitation and submits that the application under Section 8 and 9 of the said Act filed by the opposite parties is hopelessly barred by limitation. 8. It is urged by the learned Counsel for the petitioners that in the case of co-sharers raiyat of a plot of land, an application for pre-emption has to be filed within three months from the service of notice under Section 5(5) of the said Act. A distinction is drawn with regard to the service of notice in the case of bargadar and contiguous tenant and that of the co-sharers raiyat. A distinction is drawn with regard to the service of notice in the case of bargadar and contiguous tenant and that of the co-sharers raiyat. So far as the case of bargadar and contiguous tenant are concerned, the period of limitation is three months or four months as the case may be which is to be computed from the date of transfer in question irrespective service of notice under Section 5(5) of the said Act. However, limitation starts running in respect of a case of pre-emption filed by the co-sharers from the date of service of notice under Section 5(5) of the said Act and the statute provides that a co-sharer must file an application under Section 8 and 9 of the said Act within three months from the date of service of notice. 9. However, in the instant case, no notice was served upon the co-sharers/opposite parties by the vendors of the present petitioners. A cosharer raiyat who has not been served with a notice of transfer may apply for pre-emption under Section 8(1) of the Act within three years from the date of his knowledge on the strength of Article 137 of the Limitation Act. In support of his contention, learned Advocate for the petitioners relies upon a decision of this Court in the case of Mahaprasad Jana Vs. Lalit Mohon Bera, (2013) 3 CalHN 441 (Cal) wherein a Co-ordinate Bench upon due reliance on the decisions reported in [Ram Kumar Kajaria Vs. M/s. Chandra Engineering (India) Ltd., 76 CWN 426] and [Dwijapada Haldar Vs. Prafulla Chandra Haldar, (1972) AIR Calcutta 409]. 10. Learned Advocate for the petitioners, on the other hand, submits that there was conflicting decision as to the period of limitation available to a non-notified co-sharer for making an application under Section 8 and 9 of the said Act. M/s. Chandra Engineering (India) Ltd., 76 CWN 426] and [Dwijapada Haldar Vs. Prafulla Chandra Haldar, (1972) AIR Calcutta 409]. 10. Learned Advocate for the petitioners, on the other hand, submits that there was conflicting decision as to the period of limitation available to a non-notified co-sharer for making an application under Section 8 and 9 of the said Act. While in some of the cases it was held that in respect of a non-notified co-sharer, he may apply within three years from the date of knowledge of the impugned transfer on the strength of Article 137 of the Limitation Act, in some other cases it was held that Article 97 of the schedule of the Limitation Act will apply when a non-notified co-sharer applies for pre-emption under Section 8 of the said Act and in such case the period of limitation for filing such application is one year and such period of limitation will begin to run when the purchaser takes under sale sought to be impeached, physical possession of the whole or part of the property, when the instrument of sale is registered. In view of such conflicting decisions, the matter was referred to a Larger Bench and in the case of Nurul Islam Vs. Esratun Bibi, (2017) 3 CalHN 678 (Cal), the Division Bench of this Court held that Article 97 of the Limitation Act is the appropriate provision which will govern the period of limitation for filing application for pre-emption by the non-notified co-sharer and the period of limitation 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. 11. Coming to the instant case, it is pointed out by the learned Counsel for the petitioners that in their application under Section 8 and 9 of the said Act, the opposite parties candidly stated that they came to know about the sale of the case land in favour of the present petitioners in the month of May, 2007. Admittedly, the property was transferred in favour of the present petitioners on 22nd August, 2005. The application for pre-emption was filed after the lapse of more than one year from the date of registration of the impugned deed of sale in favour of the present petitioners. Admittedly, the property was transferred in favour of the present petitioners on 22nd August, 2005. The application for pre-emption was filed after the lapse of more than one year from the date of registration of the impugned deed of sale in favour of the present petitioners. In view of such circumstances, the application under Section 8 and 9 of the said Act was hopelessly barred by limitation and the said application was liable to be rejected only on the ground of limitation. 12. The ratio of the decision in Nurul Islam (Supra) governs the field with regard to limitation for pre-emption by a non-notified co-sharer. Therefore, the pre-emption case was barred by limitation and the same should have been dismissed only on this ground. 13. In view of the reasons stated above, the instant revision be and the same is allowed on contest, however, without cost. 14. The order dated 31st May, 2016 passed by the learned Additional District Judge, Fast Track, 2nd Court at Kandi in Misc. Appeal No. 14 of 2010 affirming the order dated 31st August, 2010 passed by the learned Civil Judge (Junior Division), Kandi in Misc. Case No. 27 of 2007 is set aside. 15. Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings.