Gouri Sankar Dinda & Anr vs Rajesh Kumar Kabra & Ors
2023 Latest Caselaw 1406 Cal

24.2.2023
    64
Ct. no. 652
    sb
                                C.O. 1219 of 2019


                                Gouri Sankar Dinda & Anr.
                                        Vs.
                                Rajesh Kumar Kabra & Ors.


                     Mr. Asit Baran Raui
                     Mr. Tuhin Subhar Raut
                     Mr. Asit Kr. Chowdhury
                     Ms. Ishita Raut                ...for the petitioners

                     Mr. Ashok Kr. Banerejee, Sr. Adv.
                     Mr. Sekhar Kumar Saha       ...for the O.P. No. 1



                     Being aggrieved and dissatisfied with the order

              dated 2nd March, 2019 passed by the learned Civil Judge,

              Junior Division, Bidhannagar, North 24 parganas in

              Misc. case no. 02 of 2014, present revisional application

              under Article 227 of the Constitution of India has been

              preferred.

                     Petitioner contended that the opposite party no. 1

              as the pre-emptor has initiated aforesaid proceeding

              under Section 8 of the West Bengal Land Reforms Act,

              1955    against   the   petitioners    herein.   In   the    said

              application for pre-emption, it has been contended that

              the petitioners purchased a portion of the agricultural

              land on 17.7.2022 and the opposite party/pre-emptor is

              the owner in possession of the adjoining plot of land

              which he inherited from his father and as such he is

              entitled to pre-empt the said plot of land on the ground of
                   2




vicinage. In the said application for preemption, it has

been averred that the deed of sale in question dated

17.7.2002

, for the first time came to the knowledge of the

petitioner/pre-emptor on 16.12.2013 and immediately,

thereafter he applied for the certified cop and immediately

after getting the certified copy, he has filed the aforesaid

suit for preemption. The petitioners herein duly filed

written objection contending that the said application

under Section 8 of the said Act is hopelessly barred by

law of limitation and the petitioner has no locus standi

and is not competent to file the instant case for

preemption.

Accordingly, the petitioners herein have took out

one application under Order VII rule 11 of the Code of

Civil Procedure praying for an order of rejection of

preemption application filed under Section 8 of the said

Act on the ground that said application is ex facie barred

by law of limitation. The opposite party no. 1 herein filed

written objection in the said application and contended

that he came to know about impugned sale deed on

16.12.2013. Learned Court below has taken up said

application under Order VII rule 11 for hearing on

2.3.2019 and was pleased to reject the application by the

impugned order.

Learned counsel for the petitioner submits that the

court below has failed to appreciate that the suit is ex

facie barred by law of limitation in view of the fact that

the deed in question was executed long before 12 years of

filing of the case. The deed was executed in the year 2002

and it was within the knowledge of each and everybody of

the vendor's family including the present pre-emptor and

as such the contention of the pre-emptor that he came to

know about such transaction for the first time on

16.12.2013 is absolutely incorrect and not at all reliable.

Learned court below failed to consider that the limitation

for making an application in the case of contiguous rayat

is four months from the date of transfer. Accordingly, the

petitioner has prayed for setting aside the impugned

order.

In this context, the learned counsel for the

petitioner has relied upon a judgment passed by a

coordinate bench of this court in C.O. 2221 of 1993 and

also Supreme Court judgments reported in (2008) 14 SCC

445, AIR 1977 SC 2421, (2014) 14 SCC 254.

Learned counsel for the opposite party raised

objection and contended that the court below has rightly

pointed out that the points of limitation is a mixed

question of law and fact and the same cannot be

determined without taking evidence. Therefore, at this

stage, the question whether the suit is barred by law of

limitation or not cannot be determined without taking

evidence by framing issue. In this context, he relied upon

judgments reported in Air 2007 (7) Supreme 532 also AIR

2008 SC 690.

I have considered the submissions made by both

the parties. On perusal of the plaint filed in Misc. case no.

2 of 2014, it appears that preemptor/opposite party no. 1

has averred in paragraph 4 of the petition that the

petitioner came to know about the said deed in question

for the first time on 16.12.2013 and immediately

thereafter, he applied for certified copy and after getting

certified copy, he has filed the pre-emption case well

within time.

Though learned counsel for the petitioner submits

that such averment has no basis at all as pre-emptor has

not clarified in his application as to how he gathered

knowledge about the deed for the first time on

16.12.2013, when all his co-sharers who are vendor of

petitioner and opposite parties herein, reside in the same

address at 230, A.J.C. Bose Road, Bhownipur, Kolkata,

which is their common address, as appearing from the

affidavit and as such, the averment is not at all

believable. Furthermore, a previous suit was filed praying

for cancellation of the deed being no. 396 of 2006 which

was ultimately dismissed being barred by law of limitation

on 6.3.2017 and while discussing issue no. 2, the court

held that the suit is barred by limitation and accordingly,

issue decided against the plaintiffs. Accordingly, the

petitioner contends that they have knowledge all along

and as such there is no need to proceed with the false

and vexatious claim of the petitioner any further and the

plaint should be rejected.

As mentioned above, pre-emptor in his application

in paragraph 4 of plaint has stated that he came to know

about the existence of sale deed dated 17.2.2002 only on

16.12.2013 and accordingly he has specifically mentioned

in paragraph 9 that cause of action of the pre-emption

application arose on 16.12.2013, when it has come to his

knowledge.

Normally a plaint has to be rejected not by taking

evidence or reading the written statement, but by finding

out what it contained in the plaint itself. It is only where

on the face of the plaint, a suit appears to be barred by

any law that the court shall reject the plaint. But where it

does not so appear, but requires further consideration, or

in other words, if there is any doubt or if the court is not

sure and certain that the suit is barred by some law, the

court cannot reject the plaint.

In the present case, petitioners herein have certain

plea suggesting that the pre-emption had knowledge

about the deed for the year 2002 and on the contrary,

pre-emptor/opposite party's definite case is that he came

to know about the deed of 2002 only on 16.12.2013.

Accordingly, at least it is clear that statements of plaint

does not suggest that the suit is barred. Now whether

pre-emptor really had knowledge prior to 16.12.2013 is

question of fact to be considered during the trial. In the

suit where there is a dispute as regards date of

knowledge, such issue can never be a point of law only for

ascertainment of date of knowledge. As such the issue

involved is a mixed question of law and fact. A plaint

cannot be rejected on the ground of limitation especially

when it is a mixed question of law and fact and is

connected with the merit of the claim and as such, such

point has to be tried along with other issues.

In view of aforesaid discussion, case cited in (2014)

14 SCC 254 is not applicable in the present case as in

that case suit filed after 14 years of execution of sale deed

without showing reason and facts of the case disclosed

that sale deed executed in 1992 was known to the

plaintiff in 1993, which was admitted position in that

case. Since it is doubtful at this stage without taking

evidence as to whether pre-emption had knowledge about

the deed earlier or not, case law referred in AIR 1977 SC

2421 is not applicable in this context.

Accordingly, I do not find any substance to interfere

with the order impugned and as such C.O. 1219 of 2019

is dismissed. However, I make it clear that I have not

gone into the merits of the case and I am informed that

the trial court has already framed an issue on the point of

limitation. If such issue has already been framed, the trial

court will decide the said issue and all such questions

shall be kept open before the court below and the court

will decide the issue without being influenced by any

observation made herein. The court below will make every

endeavour for expeditious disposal of the suit and shall

make best attempt to conclude the entire proceeding

without granting any unnecessary adjournment to either

of the parties, preferably within a period of ten months

from the date of communication of this order.

Urgent photostat certified copy of this order, duly

applied for, be given to the parties upon compliance of all

requisite formalities.

(Ajoy Kumar Mukherjee, J.)