Calcutta High Court (Appellete Side)
Mir Khalil vs Sk. Soraf Ali & Anr on 22 November, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
1 22.11.2019Court No. 19 Item No. 40
CP C.O. 3904 of 2019 Mir Khalil vs. Sk. Soraf Ali & anr.
Mrs. Mamata Dutta.
... for the petitioner.
In this revisional application the preemptee has challenged an order passed by the learned Additional District Judge, 2nd Court, Arambagh in Misc. Appeal No. 2 of 2017, thereby affirming the order dated June 18, 2012 passed by the learned Civil Judge (Junior Division), 1st Court, Arambagh, District - Hooghly in preemption Misc. Case no. 5 of 2008.
The only point urged by the learned advocate for the petitioner while assailing the order impugned was that both the Courts below erred in holding that the application for preemption was filed by the opposite party within the period of limitation.
Upon considering the documentary and oral evidences, first of all, both the Courts below have come to the conclusion that the petitioner/purchaser was a stranger purchaser as he had failed to establish his right as a co-sharer of the property. On the point of limitation it has been found by both the Courts below, upon appraisal of the facts and the exhibits (the registered sale deed), that as the pre-emptor was a non-notified co-sharer the period of limitation would run in 2 terms of Article 97 of the Limitation Act, 1963 and the application was filed within one year from the date of transfer.
Reliance has been placed by the Courts below on a decision of this Court reported in 2017 (3) CLJ (Cal) page 241. It has been held in the said decision that in respect of an application for pre-emption by a non-notified co-sharer, the period of limitation would be governed under Article 97 of the Limitation Act, 1963. Before the lower appellate court the learned advocate for the petitoner/preemptee submitted that the petitioner had failed to prove that the opposite party was not a non-notified co-sharer. As such, the Courts found that the period of limitation in this case would be a period of one year from the date of transfer. It is on record that the impugned deed of sale was executed on January 3, 2007 and the same was put for registration on January 5, 2007 but the same was entered in the volume and the registration certificate was issued on July 5, 2007. The application for preemption was filed on March 12, 2008 which was within one year from the date of completion of registration. The Courts have also relied on the decisions of the Hon'ble Apex Court reported in AIR 1963 SC 1747, wherein it has been observed that a registration under the Registration Act was not complete until the document had been copied out in the records of the registration office as provided in Section 61 of the Registration Act.
Reliance was also placed in a decision reported in 1982 CW 184, wherein this Court had held that limitation for an application of preemption runs not from the date of execution of the sale deed but from the date of registration of the same and when title effectively passes.
3
From the exhibits which were part of the records before the Courts below, the Courts have come to a factual finding with regard to the date when the registration was complete, the document presented for registration was copied in the volume and the certificate was granted, i.e., on July 5, 2007.
Admittedly, the application for preemption was filed on March 12, 2008 which is well within a period of one year from the completion of the registration.
Under such circumstances, I do not find any reason to interfere with the order impugned.
The revisional application is dismissed. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible upon complying with all usual formalities.
(Shampa Sarkar, J.)