Calcutta High Court (Appellete Side)
6.03.19 Anadi Gain vs Subodh Shikary on 6 March, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
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sandip C.O. No. 1770 of 2017
Ct. 21
06.03.19Anadi Gain Versus Subodh Shikary Mr. Tanmay Mukherjee, Mr. Kamal Mishra, Mr. Safik Dewan, Mr. Tamal Taru Panda ... for the petitioner.
Affidavit of service filed in Court today be kept with the record.
Inspite of service none appears on behalf of the opposite party to oppose this revisional application.
The revisional application is at the instance of the pre-emptee in a proceeding under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act in sought) and is directed against judgment and order dated December 22, 2016 passed by the learned Additional District Judge, 1st Court, Bongaon, District 24 Parganas (North) in Misc. Appeal No. 15 of 2016 thereby affirming the judgment and order being No. 82 dated April 28, 2016 passed by 2 the learned Civil Judge, (Junior Division), Bongaon, District 24 Parganas (North) in Misc. Case No. 35 of 2004.
The opposite party filed an application under Section 8 of the said Act to preempt the sale executed on May 29, 2001 and registered on July 4, 2001 by one Lakhipriya Baccher in favour of the pre- emptee/petitioner on the ground of non-notified co- sharer and vicinage.
The said application was registered before the learned Civil Judge, (Junior Division), Bongaon as Misc. Case No. 35 of 2004. The petitioner contested the said Misc. Case by filing written objection.
In the said written objection the petitioner, inter alia, took the defence that the said Misc. case is barred by law of limitation. The learned trial Judge overruled the said objection of the petitioner holding that the Misc. case since has been filed within three years from the date of registration of the said misc. case is not barred by limitation.
The petitioner being aggrieved by and dissatisfied with the said judgment and order of the learned trial Judge preferred Miscellaneous Appeal No. 3 15 of 2016.
The learned Judge of the appeal Court below affirmed the judgment and order of the learned trial Judge by the order impugned.
Mr. Mukherjee, learned counsel appearing on behalf of the petitioner submits that the petitioner was put into possession when he paid a part of the consideration price of the said sale transaction and thereafter after completion of the registration of the said deed on July 4, 2001 constructed his dwelling house over the suit property. He, therefore, submits that the petitioner being in possession since his purchase, the limitation for filing an application under Section 8 of the said Act to preempt the said sale on the ground of non-notified co-sharer should be within one year from the date of registration of the impugned deed of sale. In support of his such contention he places reliance on the decision of the larger bench of this Court in the case of Nurul Islam Vs. Esratun Bibi, reported in 2017 (3) CHN (Cal) 678.
Heard Mr. Mukherjee. Perused the materials on record.
The point of limitation involved in the present 4 pre-emption application is required to be re-considered in the light of the judgment of the larger bench of this Court in the case of Nurul Islam Vs. Esratun Bibi (supra).
Under such circumstances, the judgment and order dated December 24, 2016 passed by the learned Additional District Judge, 1st Court, Bongaon in Misc. Appeal No. 15 of 2016 so also the Order No. 82 dated April 28, 2016 passed by the learned Civil Judge, (Junior Division), Bongaon in Misc. Case No. 35 of 2004 are set aside with a direction upon the learned Civil Judge, (Junior Division), Bongaon, District 24 Parganas (North) to decide the Misc. Case No. 35 of 2004 afresh in the light of the aforementioned judgment of the larger bench of this Court.
The learned trial Judge is at liberty to invite the parties to adduce further evidence if required to decide the said point of limitation.
The learned trial Judge, however, is requested to expedite the hearing of the said Misc. case. No. 35 of 2004.
C.O. No. 1770 of 2017 is thus allowed. Urgent Photostat certified copy of this order, if 5 applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.) 6