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2022 DIGILAW 638 (CAL)

Haradhan Saha v. Tripurdeshwar Mukherjee

2022-04-26

BISWAJIT BASU

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JUDGMENT Biswajit Basu, J. - The revisional application under Article 227 of the Constitution of India is at the instance of the pre-emptees in a proceeding under Section 8 and 9 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as 'the said Act of 1955' in short) and is directed against the judgment and order dated August 06, 2019 passed by the learned Additional District Judge, Kandi, District- Murshidabad in Misc. Appeal (L.R.) No. 03 of 2019 thereby affirming the judgment and order dated January 05, 2019 passed by the 1st Court of learned Civil Judge (Junior Division), Kandi in Misc. (L.R.) Case No. 25 of 2016. 2. The pre-emptors, the opposite parties herein, filed an application under Section 8 of the said Act of 1955 in the 1st Court of learned Civil Judge (Junior Division), Kandi, District- Murshidabad being the aforesaid Misc. (L.R.) Case No. 25 of 2016 to pre-empt the transfer of suit property in favour of the pre-emptees. 3. The pre-emptors sought to pre-empt the said transfer on the ground that they being non-notified co-sharers of the suit plots are entitled to pre- empt the said transfer. The main ground on which the pre-emptees resisted the said claim of the pre-emptors was that the application for pre-emption being filed beyond the prescribed period of limitation is not maintainable. 4. The learned Trial Judge overruling the said objection of the pre- emptees allowed the said application for pre-emption holding that the pre- emptee no. 1, the petitioner no.1 herein, in his cross-examination has admitted that the pre-emptees came into the possession of the suit properties in the month of December, 2015 as the Bargadar was cultivating the suit land and within one year thereafter, on June 30, 2016 the application for pre-emption was filed, i.e. within the period of limitation prescribed under Article 97 of the Limitation Act, 1963 (hereinafter referred to as the 'said Act of 1963' in short). 5. The petitioners assailed the said judgment and order in the connected Miscellaneous Appeal. The appeal Court below by the impugned judgment and order has dismissed the said appeal, thereby has affirmed the said judgment and order of the learned Trial Judge. 6. Mr. 5. The petitioners assailed the said judgment and order in the connected Miscellaneous Appeal. The appeal Court below by the impugned judgment and order has dismissed the said appeal, thereby has affirmed the said judgment and order of the learned Trial Judge. 6. Mr. Soumik Ganguly, learned advocate for the petitioners submits that the suit property since was under the possession of the Bargadar, in terms of Article 97 of the said Act of 1963 the application for pre-emption was required to be filed within one year from March 01, 2015 i.e. the date of completion of the registration of the impugned deed of sale, but it was filed on June 30, 2016 which is much beyond the said period of limitation. 7. Mr. Ganguly further argues that both the Courts below have committed error of law in treating the starting point of limitation from the date when the Bargadar of the suit lands surrendered the possession of the suit property in favour of the pre-emptees and to fortify his said argument, refers to the decision of the Hon'ble Division Bench of the Punjab and Haryana High Court in the case of Sardar Singh vs. Smt. Dalip Kaur & Ors. reported in AIR 1981 Punjab and Haryana 340. 8. Mr. Partha Pratim Roy, learned advocate for the preemptors/opposite parties, on the other hand, citing the decision of the Hon'ble Supreme Court in the case of Sukhnandan Singh & Ors. vs. Jamiat Singh & Ors., reported in AIR 1971 SC 1158 submits that the possession referred to in Article 97 of the said Act of 1963 means actual possession not the constructive possession. He argues that the pre-emptees were in constructive possession of the suit property through the Bargadar, they came into the actual possession of the suit property after such possession is surrendered by the Bargadar in their favour, therefore, according to him, both the Courts below have rightly held that the limitation to file the said application for pre-emption began to run from the date the pre-emptees came into actual possession of the suit property. 9. 9. He further argues that the recital of the impugned deed that pursuant to the execution of the impugned deed of sale, the pre-emptees were put into possession is of no relevance to fix the starting point of limitation for filing the said application for pre-emption and in support of his such contention he relies on the decision of the Single Judge of Punjab and Haryana High Court in the case of Mohan Singh vs. Nirmal Singh & Ors. reported in (1971) Punjab Law Journal 27. Heard learned advocate for the parties, perused the materials-on- record. 10. A non-notified co-sharer is required to exercise his right of pre- emption within the period of limitation prescribed under Article 97 of the Limitation Act, 1963. Under the third column of Article 97 of the said Act of 1963 two different period of limitation has been provided for two different situations. In the present revisional application the issue falls for consideration is which of the aforesaid two situations of the Article 97 of the said Act of 1963 would govern the terminus a quo for filing the said application for pre- emption. 11. The said issue demands a comprehensive analysis of the said Article 97 of the said Act of 1963, as such the said Article is quoted below for ready reference:- Description of suit Period of limitation 97. To enforce a right One year of Pre-emption whether the right is founded on law or general usage or on special contract. Time from which period begins 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. 12. The first eventuality contemplated under third column of the said Article is that the limitation for per-emption would start from the date when the purchaser takes possession of the property sold. The second eventuality contemplates that when the subject matter of the sale does not admit of physical possession of the whole or part of the property sold, then the limitation for pre-emption would begin from the date when the registration of the deed of sale is complete. The second eventuality contemplates that when the subject matter of the sale does not admit of physical possession of the whole or part of the property sold, then the limitation for pre-emption would begin from the date when the registration of the deed of sale is complete. The said situation occurs if the property sold is under the possession of any third party other than the owner under some title. The Hon'ble Supreme Court in the case reported in AIR 1971 SC 1158 (supra) while interpreting Article 10 of the Limitation Act, 1908 which is in pari materia with Article 97 of the said Act of 1963 has held that the starting point of limitation to file a suit for pre-emption where even a part of land sold was in possession of a tenant would be the date of registration of the sale. 13. The Hon'ble Division Bench of the Punjab and Haryana High Court in the case reported in AIR 1981 Punjab and Haryana 340 (supra) following the ratio of law laid down by the Hon'ble Supreme Court in the aforesaid decision has held that if whole of the sold property is already in possession of a tenant, mortgagee or a person other than the owner under some title and that person continues in possession in spite of a sale by the owner, the only way to provide knowledge to a pre-emptor would be by a registered document because under the law the moment a document is entered in the register of the Registrar, the sale is notice to the general public and the registration of such a sale would give the starting point of limitation for filing a suit for pre- emption. 14. In the present case, the suit property was under the possession of the Bargadar, as such the pre-emptees did not get possession of the suit property immediately after purchase. The situation, therefore, comes under the second eventuality contemplated in the third column of the Article 97 of the said Act of 1963 and in consequence thereof the terminus a quo for filing the said application for pre-emption is the date when the registration of the impugned deed was completed i.e. on March 01, 2015, not the date when the Bargadar surrendered the possession of the suit property sold in favour of the pre-emptees. 15. 15. The application for pre-emption was filed beyond one year from the date of completion of registration of the impugned deed on June 30, 2016, i.e. beyond the period of limitation prescribed under Article 97 of the said Act of 1963 as such, the said application is not maintainable being barred by limitation. 16. The decision of the learned Single Judge of the Punjab & Haryana High Court in the case reported in (1971) Punjab Law Journal (supra) cited by Mr. Roy is misplaced in the facts and circumstances of the present case. In view of the aforesaid, the order impugned is set aside; the Misc. (L.R.) Case No. 25 of 2016 is dismissed. The pre-emptors/opposite parties are at liberty to withdraw the consideration price deposited with the learned Trial Judge at the time of filing of the application for pre-emption. C.O. 3530 of 2019 is allowed without any order as to costs. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.