Calcutta High Court (Appellete Side)
(Somen Roychowdhury vs Bidyut Sarkar) on 24 January, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1 24.01.2019 03 RP Ct.25 CO 3713 of 2016 (Somen Roychowdhury vs. Bidyut Sarkar) Mr. Rajdeep Bhattacharjee, Adv. Ms. Arpita Bhattacharjee, Adv.
.... For the Petitioner Mr. Partha Pratim Roy, Adv.
Mr. Anirban Das, Adv.
.... For the OP Order dated 30th April, 2016 passed by the learned Additional District Judge, 4th Court, Berhampore at Murshidabad dismissing the Misc. Appeal No.37 of 2010 on contest is under challenge at the instance of the petitioner invoking the jurisdiction under Article 227 of the Constitution.
By passing the impugned order the learned appeallate Judge affirmed the order passed by the learned Civil Judge (Junior Division), Lalbagh in Misc. Case No.85 of 2003 under Section 8 of the West Bengal Land Reforms Act (hereinafter described as the said 'Act').
For the purpose of disposal of the instant revision following facts are required to be stated:-
2
The petitioner filed an application under Section 8 of the said Act against the opposite party stating, inter alia, that the petitioner is the co- sharer in respect of disputed plot of land which was sold by his co- sharers to a stranger/opposite party in the instant proceeding.
The opposite party contested the claim of the petitioner for preemption by filing written objection.
The learned trial Court as well as the Appellate Court concurrently held that the petitioner is the co-sharer of the vendors of the opposite party. Secondly, the vendors of the opposite party sold out their shares in favour of the opposite party by executing a registered deed of sale dated 17th June, 2002. However, an application under Section 8 of the said Act was dismissed by the learned trial Court on the ground that the vendors of the opposite party transferred their entire share in undivided property and therefore the petitioner's prayer for preemption cannot be entertained.
Mr. Bhattacharjee, learned Advocate for the petitioner submits that the learned trial Court as well as the Court of Appeal came to the finding to the effect that when entire share of undivided property is transferred by a co-sharer, preemption is not permissible in view of a decision of this Court reported in 2005 (3) ICC 5. However, the said issue has been 3 conclusively settled by a Division Bench of this Court in Naimul Haque vs. Alauddin Sk (CO 1164 of 2015) by a judgment dated 8th August, 2018. On this score the judgment of the learned trial Court as well as the Appellate Court cannot stand. Therefore, the petitioner is entitled to preemption under Section 8 of the said Act.
Mr. Roy, learned Advocate for the opposite party, on the other hand submits that the application for preemption is barred by limitation and only on this ground the same as liable to be rejected.
In order to substantiate his contention, Mr. Ray brings my attention to the relevant portion of the judgment passed by the trial Court. On the question of limitation, the learned trial Judge held "There is nothing on the face of the record to show on behalf of the O.P. that the statutory notice was served upon the petitioner. If it is not so, then the petitioner can well file the instant petition to exercise his right of pre- emption within there years from the date of completion of registration of the deed of impugned sale. From the part, the instant petition is well maintainable."
The learned Court of Appeal also affirmed the said observation of the learned trial Court in the impugned judgment on the point of limitation.4
However, in view of the decision of this Court in Nurul Islam vs. Esratun Bibi reported in (2017) 3 CHN (Cal) 678, it is held that in case of a non-notified co-sharer, the period of limitation will be one year from the date of registration of the impugned deed of transfer as per the provision contained in Article 97 of the Limitation Act. In the instant case, the deed was registered in favour of the opposite party on 17th June, 2002 and the application for preemption under Section 8 of the said Act was filed on 3rd November, 2003, i.e., after expiry of the period of one year as contemplated in Article 97 of the Limitation Act. Therefore, the application under Section 8 of the said Act is barred by limitation.
In view of the above discussion, I have no other alternative but to dismiss the application under Article 227 of the Constitution. It is made clear that I am not in conformity with the reasons supplied by the learned trial Court and the learned Appellate Court while rejecting the application under Section 8 of the said Act. However, the aforesaid application cannot be entertained as being barred by limitation.
For the reasons aforesaid, the instant revision is dismissed. There shall, however, be no order as to costs.5
Urgent Photostat certified copy of this order, if applied for, be delivered to the learned Advocate for the parties, upon compliance of all formalities.
(BIBEK CHAUDHURI, J.)