Calcutta High Court (Appellete Side)
Israfil Sk vs Kangali Sk. (Since Deceased) His Legal ... on 18 February, 2020
Author: Biswajit Basu
Bench: Biswajit Basu
1
19
sandip
Ct. 18
18.02.2020
C.O. No. 3740 of 2012 Israfil Sk.
Vs. Kangali Sk. (since deceased) his legal heirs Indri Bewa & Ors.
Mr. Partha Pratim Roy, Mr. Sarbananda Sanyal ... For the Petitioner. Mr. Samiran Giri, Mr. Pallab Kr. Chakraborty ... For the opposite parties.
The revisional application under Article 227 of the Constitution of India is at the instance of the pre-emptee in a proceeding under Sections 8 and 9 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the 'said Act' in short) and is directed against the order dated July 31, 2012 passed by the 2nd Court of learned Additional District Judge, Nadia in Miscellaneous Appeal No. 43 of 2007, thereby affirming the Order No. 52 dated June 13, 2007 passed by the 2nd Court of learned Civil Judge, (Junior Division), Krishnagar, District Nadia in Miscellaneous Case No. 5 of 2004.
The co-sharers of the pre-emptor in respect of the suit plot sold their share to the petitioner by the registered Deed of sale 2 executed on December 9, 2002 which was entered into volume on January 24, 2003.
The predecessor in interest of the opposite parties filed an application under Section 8 of the said Act to pre-empt the said sale on the ground of vicinage as well as 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 was registered before the 2nd Court of learned Civil Judge, (Junior Division), at Krishnagar as Misc. Pre- emption Case No. 5 of 2004.
The learned trial Judge by the Order No. 52 dated June 13, 2007 allowed the said Misc. case.
The appeal Court below by the impugned judgment and order has affirmed the judgment and order of the learned Trial Judge. Mr. Roy, learned advocate appearing on behalf of petitioner submits that the pre-emptee/petitioner specifically questioned the maintainability of the said Misc. Case No. 5 of 2004 on the ground of limitation, but both the learned Courts below have erroneously overruled the said objection. He draws my attention to the paragraph 6 of the application for pre-emption wherefrom it appears that the pre-emptor has alleged that the disputed sale was executed on December 9, 2002 which was entered into volume on January 24, 2003. 3 The date of copying the endorsement and certificate into the margin of Registrar-Book, popularly known as entering into the volume copy, signifies the completion of the registration of a Deed in terms of Section 61 (2) of the Registration Act, 1908. The limitation prescribed under Section 8 of the said Act to exercise the right of pre-emption on the ground of vicinage is four months from the date of disputed transfer. In the instant case the transfer was completed on January 24, 2003 and the application for pre-emption was filed on March 03, 2004 long after the expiry of the said period of limitation as such the pre-emptor is not entitled to pre-empt the said sale on the ground of vicinage.
The special Bench of this Court in the case of Nurul Islam Vs. Esratun Bibi, reported in 2017 (3) CHN (Cal) 678 has held that the limitation to exercise the right of pre-emption on the ground of non-notified co-sharership would be governed by Article 97 of the Limitation Act, 1963.
In the present case it is an admitted position that the pre- emptee took possession of the suit property immediately after the execution of the disputed Deed, therefore the right of the pre- emptor to pre-empt the said sale on the ground of non-notified co-sharership is also barred by limitation. 4 The application for pre-emption is therefore liable to be dismissed on the ground of limitation alone, accordingly the Misc. Pre-emption Case No. 05 of 2004 is dismissed. C.O. 3740 of 2012 is thus allowed.
No order as to costs.
However, the opposite parties are permitted to apply before the learned trial Judge to take back the consideration price deposited at the time of filing of the application for pre-emption. After the disposal of the revisional application Mr. Giri, learned advocate appearing on behalf of the opposite parties prays for stay of the operation of this order. The said prayer of Mr. Giri is considered and is rejected.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)