Calcutta High Court (Appellete Side)
Sankar Basani vs Dulal Basani & Ors on 20 November, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
1 20.11.2019
(M/L-253) Ct.-18 (Susanta) C.O. 1584 of 2015 Sankar Basani
-Vs-
Dulal Basani & Ors.
Mr. Sounak Bhattacharya, Mr. Chandra Nath Sarkar.
....... For the Petitioner.
Affidavit-of-service filed in Court today be kept with the record. None appears on behalf of the opposite parties in spite of service. The opposite parties initiated a proceeding under Section 8 of the West Bengal Land Reforms Act, 1955 registered before the learned Civil Judge ( Junior Division) Bishnupur as J. Misc. Case no. 6 of 2011 to pre-empt the sale of suit property in favour of the petitioner vide sale deed no. 769 of 2008 registered on March 31, 2008 on the ground that they being the non-notified co-sharer of the suit plot is entitled to pre-empt the said sale. The petitioner being the pre-emptee appeared in the said Misc. Case and filed an application questioning the maintainability of the said Misc. Case on the ground that since the said misc. case has been filed one year after the completion of the registration of the deed of sale sought to be pre-empted it is barred by limitation.
The learned Trial Judge by the order impugned being Order No. 31 dated February 25, 2015 dismissed the said application holding that since such 2 limitation is three years from the date of completion of the registration of the disputed deed, the said misc. case is not barred by limitation. There was divergent views of the learned Judges of this Court on the said issue, as such, the learned Single Judge of this Court in the case of C.O 172 of 2007 (Mst. Moslema Bibi Vs. Mst Aleya Bibi) by the judgment and order dated March 20 of 2015 framed the following question to be answered by the larger Bench of this Court:-
"When does the period of limitation begin to run and when does such period end for a pre-emption application under Section of 8 of the West Bengal land Reforms Act, 1955 at the instance of a co- sharer on whom notice of transfer as contemplated by Section
595) of the said Act has been served?"
The Larger Bench of this Court answered the said question in the case of Nurul Islam Vs. Earatun Bibi reported in 2017(3) CHN 678 holding that such limitation is governed by the Article 97 of the Limitation Act, 1963. The following paragraphs of the said report being relevant are reproduced below:-
34. Let us now try to find out as to the appropriate provision of the Limitation Act which will govern the period of limitation and/of the starting point of the limitation so far as pre-emption application filed by the non-notified co-sharer is concerned.3
35. Article 97 of the Limitation Act contained in Part IX dealing with suits relating to miscellaneous matters comes under the first Division of the Schedule to the Limitation Act, 1963. Article 97 of the Limitation Act runs as follows:
Article 97 :
Descrip Period of Time from which
tion of limitation period begins to run
suit
Enforc One year When the purchaser
e a takes under the
right sale sought to be
of pre- impeached,
emptio physical possession
n of the whole or part
whethe of the property
r the sold, or, where the
right is subject matter of
founde the sale does not
d on admit of physical
law or possession of the
whole or part of the
property, when the
instrument of sale
is registered
36. The non-notified co-sharer's right to enforce pre-emption is founded on law i.e. West Bengal Land Reforms Act, 1955. Since the pre-emption proceeding is regarded as a suit, in our view Article 97 is the appropriate provision which will govern the period of limitation and the starting point thereof so far as the application for pre-emption filed by the non-notified co-sharers are concerned. As such, the period of limitation for filing an application for pre-emption by the non-notified co-sharers will be one year and the starting point of limitation will be different depending upon circumstances as prescribed in the third column of the said schedule. As per the third column of the said schedule the time 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 the property sold. Again when 4 the property is of such nature where the subject matter of sale does not admit of physical possession of the whole or part of the property then from the date when the instrument of sale is registered meaning thereby when the registration is complete as per section 61 of the Registration Act.
39. We thus conclude by holding that Article 97 of the Limitation Act, 1963 is the appropriate provision which will govern the period of limitation for filing application for pre-emption by the non-notified co-
sharer. We also hold that as per the provision contained in Article 97 of the Limitation Act, the 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 party of the property sold. We also hold that where the property sold is of such nature which does not admit of physical possession either of the whole or party thereof the period of limitation will begin to run when the instrument of sale is registered meaning thereby when the registration is complete as per section 63 of the Registration Act and in both cases the period of limitation is one year.
In view of the proposition of law enunciated by the Larger Bench, of this Court in the above report the application for maintainability filed by the petitioner is required to be given a fresh look.
C.O. 1684 of 2014 is disposed of by setting aside the order impugned and by directing the learned Trial Judge to decide the said application afresh in the light of the proposition of law laid down by the Larger Bench of this Court on the said issue in the above mentioned report.
The learned Trial Judge is requested to dispose of the said application within a period of three weeks from the date of communication of this order.
C.O. 1584 of 2015 is, thus, disposed of.
5There shall be no order as to costs.
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.)