Calcutta High Court (Appellete Side)
4.07.19 vs Babla Mandi on 4 July, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
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sandip C.O. No. 2817 of 2007
Ct. 21 Lakshman Chandra Baskey
04.07.19Versus Babla Mandi Mr. Tanmoy Mukherjee, Mr. Kajal Ray, Mr. Aditya Sen, Mr. Subham Ghosh ... for the petitioner. Mr. Sudipta Dasgupta, Ms. Tanushree Ray, Mr. Dipa Acharya ... for the opposite party.
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 refer to as the said Act in short) and is directed against order dated January 29, 2005 passed by the learned Additional District Judge, 1st Fast Track Court, Hooghly in Misc. Appeal no. 100 of 1998, thereby remanding the Misc. Case No. 12 of 1989 for fresh adjudication after setting aside the order under appeal being Order No. 87 dated June, 06,1998.
The opposite party filed an application under Sections 8 and 9 of the said Act to pre-empt the impugned sale dated June 12, 1987 on the ground that 2 he being a non-notified co-sharer of the vendor of the petitioner is entitled to pre-empt the said sale.
The learned trial Judge dismissed the said application holding that the same is barred by limitation. The appeal Court below by the judgment and order impugned has set aside the judgment and order of the learned Trial Judge and remanded the case back to the Trial Court for fresh adjudication.
Mr. Mukherjee learned advocate appearing on behalf of petitioner submits that admittedly registration of the impugned sale deed was completed in terms of section 61 of the registration Act, 1908 on June 12, 1987 and the Misc. Case under Sections 8 and 9 of the said Act was filed on February 09, 1989.
It is further contended by Mr. Mukherjee that the period of limitation for filing an application to pre- empt a sale under Sections 8 and 9 of the said Act on the ground of non-notified co-sharer is one year from the date of completion of the registration of the impugned deed of sale under Article 97 of the limitation Act 1963 but the Learned Judge of the Appeal Court below has committed error in applying Article 113 thereof to extend the said period of limitation for three 3 years.
In support of his such contention, he places reliance on a Division Bench Judgment of this Court in the case of Nurul Islam vs. Esratun Bibi, reported in 2017 (3) CHN (CAL) 678.
The Misc. Case for pre-emption was admittedly filed well beyond one year after the completion of the registration of the disputed sale in terms of section 61 of the registration Act. 1908. It is also not in dispute that the pre-emptee/petitioner was put into possession of the suit property pursuant to the Execution and registration of the impugned deed of sale.
In view of the decision of the Division Bench of the Court relied on by Mr. Mukherjee the learned advocate for the petitioner reported in Nurul Islam vs. Esratun Bibi, reported in 2017 (3) CHN (CAL) 678. the period of limitation for filing an application for pre- emption on the ground of non-notified co-sharership under Sections 8 and 9 of the said Act is governed by Article 97 of the limitation Act, 1963 and the said period of limitation will begin to run from the date when the purchaser takes under the sale sought to be impeached physical possession of the whole or part of 4 the property.
The learned Judge of the Appeal Court below has committed error in reckoning the said period of limitation by applying Article 113 of the Limitation Act, 1963.
In the facts and circumstances of the present case as discussed above the order impugned is set aside and Misc. case no. 12 of 1989 pending before the first Court of learned Civil Judge (Junior Division) Hooghly, is dismissed being barred by limitation.
C.O. No. 2817 of 2007 is thus allowed. No order as to costs.
However, the learned trial Judge shall permit the opposite party to withdraw the money, if deposited by him in terms of Section 8 of the said Act within a period of six weeks from the date of communication of this order.
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.) 5 6