Calcutta High Court (Appellete Side)
Kabir Sardar @ Sarkar vs Kabita Sarkar & Ors on 26 November, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
1 26.11.2019 Court No. 19 Item No. 44 srm/Cp C.O. 3828 of 2019 Kabir Sardar @ Sarkar vs. Kabita Sarkar & ors.
Mr. Subhadip Biswas.
.....for the petitioner.
The preemptor is the petitioner before this Court and is aggrieved by an order dated September 13, 2019, passed in Misc. Appeal No. 40 of 2016.
The petitioner filed Pre-Misc Case No. 25 of 2011 before the learned Civil Judge (Junior Division), 1st Court Basirhat, North 24 Parganas, on the ground of co-sharership.
The application of the petitioner was allowed. The right, title and interest of the opposite parties with respect to the subject plot in dispute was directed to be vested upon the petitioners. Being aggrieved, the opposite parties preferred an appeal registered as Misc. Appeal no. 40 of 2016. The said Misc. Appeal was allowed by the learned Civil Judge (Junior Division), Basirhat, North 24 Parganas. Relying on an Hon'ble Division Bench judgment of this Court in the matter of Nurul Islam vs. Esratun Bibi, reported in 2017(3) CHN (CAL) 678, the learned court below allowed the appeal by setting aside the 2 order dated June 27, 2016, passed in Misc. Case No. 25 of 2011. Being aggrieved, the petitioner has approached this Court.
The contention of the learned advocate for the petitioner is that under the scheme of Section 8 of West Bengal Land Reforms Act, 1955, the concept of non-notified co-sharer was alien. He next submits that even if Article 97 of the Limitation Act was applicable, the period of limitation would start running from the date the preemptees took physical possession and limitation would be calculated as one year from the date of knowledge. He also submits that in this case, the preemptees took physical possession on May 21, 2011 and the preemption application was filed in 2011 itself. His last contention is that even if the application was filed beyond the period of limitation, the petitioner should be protected under Section 17 of the Limitation Act, 1963. According to the learned advocate for the petitioner the application was not barred by limitation.
The order dated September 13, 2019 is taken up for consideration. The question of maintainability of the application on the ground that the same was time barred had been raised by the opposite parties before the learned Trial Judge as also before the learned Lower Appellate Court. Both the courts below found that the registration was completed on October 14, 2009. The application for preemption was filed two years after that. The learned Judge in the Court of appeal below relied on a decision of the Hon'ble Division of 3 this Court in the matter of Nurul Islam vs. Esratun Bibi reported in 2017(3) CHN (Cal) 678 has specifically held that the period of limitation in case of a non-notified co-sharers should be in terms of Article 97 of the Limitation Act. In the said decision the Hon'ble Division Bench clarified that residuary Article 137 of the Limitation Act would not be applicable. This Hon'ble Court as also the Hon'ble Apex Court have held that an application under Section 8 of the West Bengal Land Reforms Act was not in the nature of a suit, thus, Article 97 of the Limitation Act would be applicable and not Article 137.
Thus, I do not find any irregularity with the finding of the learned Lower Appellate Court, that Article 97 would govern the period of limitation in this case.
The next argument of the learned Advocate for the petitioners is that the protection under Section 17 of the Limitation Act should be given to him is also not acceptable to the Court, inasmuch as, in this case there is no mistake or fraud on account of which the application was filed beyond the prescribed period of limitation. Moreover, the period of limitation cannot be calculated from the date of knowledge, inasmuch as there are several decisions of this Court negating such plea. The contention of the petitioner all along was that Article 137 would be governing the period of limitation in this case as a residuary clause and the same should be calculated as three years from the date of knowledge of the same.
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Now the argument placed before this Court is that the period of limitation should be one year from the date of knowledge. However, the Hon'ble Division Bench Judge of this Court has held that Article 97 of the Limitation Act would govern the period of limitation in cases of preemption with respect to non-notified co-sharers. Law is settled in this regard and in this case the application had been filed after two years from the date the registration was complete, that is, October 14, 2009. There is also no factual basis of the date of knowledge urged and there is no evidence on that score. Therefore, there is no scope to interfere with the order impugned.
The revisional application is, therefore, 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.)