Calcutta High Court (Appellete Side)
Ashoke Kumar Barick vs Kamal Agarwal & Ors on 3 July, 2023
S/L 22
03.07.2023
Sourav/cp
CO 1699 of 2023
Ashoke Kumar Barick
Vs.
Kamal Agarwal & Ors.
Mr. Chayan Gupta
Mr. Shoham Sanyal
... for the Petitioner.
The revisional application is directed against an order
dated March 31, 2023 passed in Misc. Appeal No. 95 of 2016
affirming the judgment and order dated November 7, 2016
passed by the learned Civil Judge, (Junior Division), 1st
Court, Hooghly at Chinsurah in Misc. Preemption Case No.
43 of 2011. Both the learned Courts rejected the application
for preemption on the ground that the same was time
barred. The contention of the preemptor that the application
for preemption had been filed within the period of limitation
as prescribed under Article 97 of the Limitation Act, was not
accepted by the learned Court below.
The application for preemption was filed on the
ground of co-shareship and contiguous ownership.
Mr. Gupta, learned advocate for the petitioner
submits that Section 97 of the Limitation Act should be
applicable and the period of limitation should run from the
date of knowledge of transfer. In this case, the date of
knowledge as per the pleadings was August 11, 2011 and the
application for preemption was filed on September 20, 2011.
In this case, the petitioner claimed to be a non-co-
sharer as well as a contiguous owner. Deed of sale was
registered on November 14, 2008. Thus, the application for
preemption was found to be time barred. The learned courts
did not accept the petitioner to be a non-notified co-sharer.
Exhibit-A indicated that the suit property had been
partitioned. The fact that the petitioner was a contiguous
land owner was, however, accepted by the court, but the
court found that the application for preemption was filed
beyond the period prescribed under Section 8. Hence, the
claim for preemption was barred by limitation. The
application was found to be not maintainable on both
grounds.
Mr. Gupta's contention that the period of limitation
would be governed by Article 97 of the Limitation Act, is not
correct. Right of preemption by a non-notified co-sharer has
to be exercised within one year from the date when the
purchaser takes physical possession of the whole or part of
the property sold, or when no physical possession is taken,
when the instrument of sale is registered. In case of all other
categories of preemptors i.e., on the ground of bargadarship,
co-sharership (notified co-sharer) and contiguous
ownership, the period of limitation has been held to be the
time which has been mentioned in the statute itself.
For convenience, Section 8(1) of the West Bengal
Land Reforms Act, 1955 is quoted below:
"8. Right of purchase by co-sharer or
contiguous tenant.--(1) If a portion or share of
a [plot of land of a raiyat] is transferred to any
person other than a [co-sharer of a raiyat in the
plot of land], [the bargadar in the plot of land]
may, within three months of the date of such
transfer, or] any [co-sharer of a raiyat in the plot
of land] may, within three months of the service
of the notice given under sub-section (5) of
section 5, or any raiyat possessing land [adjoining
such plot of land] may, within four months of the
date of such transfer, appiy to the [Munsif having
territorial jurisdiction,] for transfer of the said
portion or [share of the plot of land] to him,
subject to the limit mentioned in [section 14M,]
on deposit of the consideration money together
with a further sum of ten per cent of that amount:
[Provided that if the bargadar in the plot of
land, a [co-sharer of raiyat in a plot of land] and a
raiyat possessing land [adjoining such plot of
land] apply for such transfer, the bargadar shall
have the prior right to have such portion or [share
of the plot of land] transferred to him, and in such
a case, the deposit made by others shall be
refunded to them:]
[Provided further that where the bargadar does
not apply for such transfer and] a [co-sharer of a
raiyat in the plot of land] and a raiyat possessing
land [adjoining such plot of land] both apply for
such transfer, the former shall have the prior right
to have such portion or [share of the plot of land]
transferred to him, and in such a case, the deposit
made by the latter shall be refunded to him:
[Provided also] that as amongst raiyats
possessing lands [adjoining such plot of land]
preference shall be given to the raiyat having the
longest common boundary with the land
transferred".
The courts below, on appreciation of the evidence
found that partition of the property had been effected and the
claim of co-sharership could not be established. This court
cannot re-appreciate such evidence. The claim of co-
sharership was negated by both the fact finding courts and
such finding cannot be altered in the absence of any evidence
to prove otherwise.
The issue is whether the petitioner as a contiguous
owner (adjoining) was entitled to exercise his right of
preemption by filing an application after almost 2 years 9
months from the date of registration of the sale.
In the decision of Suraj Lamp and Industries Private
Limited vs. State of Haryana & anr., reported in (2009) 7 SCC
363, the Hon'ble Apex Court held that the date of transfer of
the document would be the date of registration. The
registration of a document, gives notice to the world that such
a document had been executed.
In the decision of Gopal Sardar vs. Karuna Sardar,
reported in (2004) 4 SCC 252, it was held that the right of
preemption conferred under Section 8 of the West Bengal
Land Reforms Act, 1955 was a statutory right, but a weak
right. Such right should be exercised strictly in terms of
Section 8 and consideration of equity did not have any place
when the applications were not made within four months
from the date of transfer. A contiguous owner could not claim
the benefit of preemption as Section 5 of the Limitation Act
would not have any application.
In the matter of Hukumdev Narain Yadav vs. Lalit
Narain Mishra, reported in (1974) 2 SCC 133, it was held that
the legislators had expressly excluded applicability of Section
5 of the Limitation Act to an application filed under Section 8
of the Transfer of Property Act.
In Minor Subir Ranjan Mandal vs. Sita Nath
Mukherjee, reported in AIR 1994 Cal 166, it was held that
right of preemption by a contiguous owner should be
exercised within four months from the date of transfer. The
date of transfer as held in Suraj Lamp and Industries Private
Limited (supra) would be the date of registration.
The deed of sale was registered on November 14, 2008.
Such date is the date of transfer and the period of limitation
started running from November 14, 2008. Date of knowledge
of transfer was not relevant.
Thus, the revisional application is accordingly
dismissed.
The learned court below correctly held that preemption
on the ground of contiguous ownership could not be exercised
after 2 years and 9 months from the date of transfer.
There shall be no order as to costs.
Parties are to act on the server copy of this order.
( Shampa Sarkar, J.)
