Calcutta High Court (Appellete Side)
Smt. Mukula Konar vs Sri Bijoy Krishna Mondal & Anr on 29 July, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
Form No. J (2)
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Biswajit Basu
C.O. No. 2124 Of 2008
Smt. Mukula Konar
versus
Sri Bijoy Krishna Mondal & Anr.
For Petitioner : Mr. Arup Banerjee
For Opposite Parties : Mr. Samal Kr. Chakraborty
Heard on : 29.07.2019.
Judgment On : 29.07.2019.
Biswajit Basu, J.
1. 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 referred to as the said Act 'in short') and is directed against the judgment and order dated March 28, 2008 passed by the 5th Court of learned Additional District Judge at Burdwan in Misc. Appeal No. 13 of 2006 re-numbered as 25 of 2006 thereby affirming the order 2 dated February 28, 2006 passed by the learned Civil Judge, (Junior Division), Kalna in Misc. Case No. 54 of 1990.
2. The pre-emptor/opposite party filed the Misc. Case No. 54 of 1990 under Section 8 of the said Act to pre-empt the sale of the suit property on the ground that the vendor of the pre-emptee being a co-sharer of the pre-emptor/opposite party has transferred the suit property to the pre-emptee/petitioner who is a stranger to the suit property without serving the required statutory notice under sub-section (5) of Section 5 of the said Act.
3. The learned Trial Judge by the Order No. 25 dated January 17, 1994 dismissed the said Misc. Case No. 54 of 1990 on the ground that in view of the definition of holding prevalent at the said point of time under Section 2(6) of the said Act there cannot be any co-sharer in respect of a holding. The learned Trial Judge however overruled the objection of the pre-emptee/petitioner regarding maintainability of the said Misc. Case on the ground of limitation holding that the application for pre-emption since was filed within a period of three years from the date of completion of the registration of the disputed deed was not barred by limitation.
4. The pre-emptor/opposite party aggrieved by the said order of the learned Trial Judge preferred an appeal being Misc. Appeal No. 18 of 1994. The said appeal was allowed and the Misc. Case No. 54 of 1990 was sent back to the learned Trial Judge on remand with a direction to dispose of the said case in the light of the observations made in the body of the said judgment. 3
5. The learned Trial Judge after the said remand by the order dated February 28, 2006 allowed the said Misc. Case No. 54 of 1990 once again overruling the objection of the pre-emptee/petitioner regarding the maintainability of the said Misc. Case on the ground of limitation. The pre-emptee/petitioner aggrieved by the said judgment and order of the learned Trial Judge preferred the appeal which has been dismissed by the order impugned in the present revisional application.
6. Mr. Arup Banerjee, learned advocate on behalf of the petitioner relying on the larger Bench decision of this Court in the case of NURUL ISLAM Vs. ESRATUN BIBI reported in 2017(3) CHN (CAL) 678 submits that Article 97 of the Limitation Act, 1963 would govern the period of limitation for filing an application under Section 8 of the said Act to pre-empt a transfer on the ground of non-notified co-sharership but both the learned Courts below have erroneously applied Article 137 of the Limitation Act, 1963 in reckoning the said period of limitation as three years from the date of completion of the registration of the disputed deed of transfer.
7. Mr. Chakraborty learned advocate appearing on behalf of the pre- emptor/opposite party submits that by the order of remand passed in the earlier appeal the Misc. Case was remitted to the Trial Court only for a limited purpose to ascertain the value of the construction made by the pre-emptee on the suit plot, therefore, according to him the petitioner is not entitled to raise the issue of maintainability of the application for pre-emption on the ground of limitation since the said issue had attained finality with the said order of remand. 4
8. Mr. Banerjee, refuting the said submission of Mr. Chakraborty submits that the order of remand is an interlocutory order which does not terminate the proceeding and in support of his such contention he refers to the judgment of the Hon'ble Apex Court in the case of Satyadhyan Ghosal & Ors. Versus Smt. Deorajin Debi & Anr., reported in AIR 1960 Supreme Court 941, therefore, according to him the petitioner is entitled to take benefit of the changed position of law laid down by the Larger Bench of this Court in the aforementioned decision reported in 2017(3) CHN (CAL) 678(supra) regarding the period of limitation to file an application for pre-emption under Section 8 of the said Act on the ground of non-notified co-sharership.
Heard learned counsel for the parties. Perused the materials on record.
9. The registration of the disputed sale deed was completed on September 24, 1987 and the application for pre-emption was filed on September 17, 1990. Both the learned Courts' below by applying the provisions of Article 137 of the Limitation Act, 1963 has held that the petition for pre-emption was filed within time as it was filed within three years from the date of completion of the registration of the disputed deed. The larger Bench of this Court in the decision reported in 2017(3) CHN (CAL) 678(supra) has held that the period of limitation in case of non-notified co-sharer shall be governed by Article 97 of the Limitation Act, 1963 not by Article 137 thereof.
10. In the present case it is an admitted position that the petitioner/pre- emptee came into the possession on the suit property pursuant to the execution and registration of disputed deed of sale, therefore, by virtue of Article 97 of the 5 Limitation Act, 1963 the limitation for filing of an application under Section 8 of the said Act to pre-empt the dispute sale on the ground of non-notified co- sharership shall be one year from the date of taking possession of the suit property by the pre-emptee/petitioner. The order of remand since is not the termination of the proceeding as has been held by the Hon'ble Apex Court in the decision reported in AIR 1960 Supreme Court 941(supra) the petitioner is entitled to take benefit of the changed position of law laid down by the Special Bench of this Court in the case reported in 2017(3) CHN (CAL) 678(supra) regarding the said period of limitation for filing the application for pre-emption under Section 8 of the said Act on the ground of non-notified co-sharership, notwithstanding the fact that the Misc. Case was remitted back to the learned trial Judge on a limited issue.
11. That being the position the order impugned is not sustainable and is therefore set aside. C.O. No. 2124 of 2008 is allowed. The Misc. Case No. 54 of 1990 is dismissed as barred by limitation.
However, The pre-emptors/opposite parties are allowed to withdraw the money deposited by them at the time of filing of the application for pre-emption within four weeks from the date of communication of this order.
Urgent photostat certified copy of this Judgement, if applied for, be given to the parties on usual undertaking.
(Biswajit Basu, J.) SK 6