Calcutta High Court (Appellete Side)
Smt. Ratna Das & Ors vs Smt. Manju Biswas & Ors on 20 September, 2024
1
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
C.O. 615 of 2024
(Assigned)
Smt. Ratna Das & Ors.
Vs.
Smt. Manju Biswas & Ors.
With
C.O. 616 of 2024
(Assigned)
Smt. Ratna Das & Ors.
Vs.
Mihir Kumar Konar & Ors.
With
C.O. 617 of 2024
(Assigned)
Smt. Ratna Das & Ors.
Vs.
Smt. Chhanda Koner & Ors.
For the petitioners :Mr. Susenjit Banik, Adv.
in C.O. No. 615 of 2024, Mr. Mrinal Saha, Adv.
C.O. No. 616 of 2024 &
C.O. No. 617 of 2024
For the Opposite Party no. 1 :Mr.Md. Nure Zaman, Adv.
in C.O. No. 616 of 2024 &
C.O. No. 617 of 2024
2
For the Opposite Party nos. 3 to 13 :Mr. Amit Singh, Adv.
in C.O. No. 615 of 2024,
C.O. No. 616 of 2024 &
C.O. No. 617 of 2024
Heard On :08.07.2024, 05.08.2024, 19.08.2024,
Order On :20.09.2024
Bibhas Ranjan De, J. :
1. All the three revision applications having identical issue and
arising out of the self same cause of action shall be disposed of
via this common judgment.
Backdrop:-
2. One Dasarathi Das (since deceased)/father of the opposite
party no. 13 & 14 herein in respect of the present revision
applications and the predecessor-in-interest of the petitioners
qua all three revision applications & opposite party no 3. to 12,
was the original owner of 1/4th undivided share of plot of land
admeasuring about 89 decimals situated at Dag No. 133, P.S.-
Kalna, Mouja-Madhuban bearing J.L. No. 166/Khatiyan No.
111. District-Burdwan. Opposite party no. 2 in respect of the
revision applications was also the owner of undivided half
portion of the land in the subject plot.
3. The opposite party no. 13 & 14, the said predecessor in
interest of the petitioners and the opposite party no. 3 to 12
after demise of the said Dasarathi Das inherited the landed
property along with the opposite party no. 2, who subsequently
filed a partition suit of the said property pending final decree.
4. During the pendency of the said partition suit, the common
opposite party no. 2 by virtue of three separate deeds of
conveyance sold her undivided share of the subject plot of land
to the opposite party no. 1, namely Smt. Manju Biswas qua
C.O. No. 615 of 2024, the opposite party no. 1 namely Sri.
Mihir Kumar Konar qua C.O. No. 616 of 2024 & the opposite
party no. 1 namely Smt. Chhanda Konar qua C.O. No. 617 of
2024. Thereafter, the said opposite party no. 13 & 14 along
with her other sisters i.e. Bimala Das (since deceased)/
predecessor-in-interest of the petitioners herein and opposite
party nos. 3 to 12 jointly filed an application under Section 8 of
the West Bengal Land Reforms Act, 1955 seeking pre-emption
on the ground of co-sharer ship vide Misc. Case Nos. 33 of
2001, 04 of 2001 & 34 of 2001 respectively.
5. During pendency of the pre-emption proceeding one of the pre-
emptors namely Bimala Das/ predecessor-in-interest of the
petitioners herein expired. Said Bimala Das had three sons and
one daughter out of which one of her sons pre-deceased her.
The other two sons/opposite party no. 11 & 12 jointly filed an
application with a prayer for substitution in the said pre-
emption proceeding. The Ld. Trial Judge vide order dated
December 03, 2022 was pleased to substitute the said opposite
party no. 11 & 12 in place of the deceased mother. The other
heirs of Bimala Das (her daughter & the heirs of her deceased
son), were out of station at the time of her death. Therefore,
they were not able to file application for substitution in the
said pre-emption proceeding.
6. All the three applications preferred by the petitioners were
rejected by the Ld. Trial Judge on the ground that since the
other heirs of the deceased Bimala Das i.e. opposite party no.
11 & 12 at the time of substitution did not disclose the names
and address of the present petitioners in their application and
also on the ground of delay in filing substitution application by
the petitioners vide order nos. 46 dated 24.01.2024, 147/1
dated 18.01.2023 & 141 dated 17.03.2023 qua the revision
applications respectively.
7. Being aggrieved by and dissatisfied with the said orders of
rejection, the petitioners have preferred these revision
applications.
Argument:-
8. Ld. Counsel, Mr. Susenjit Banik, appearing on behalf of the
petitioners qua revision applications has contended that
petitioners being co-sharers of the subject property are entitled
to be substituted in all three cases under Section 8 of the
WBLR Act, 1955 as other legal heirs of Bimala Das (since
deceased) were already on record by way of substitution. It is
submitted that the substitution applications filed by the
petitioners cannot be said to be barred by any limitation and
also not liable to be abated in terms of limitation.
9. In support of his contention, Mr. Banik relied on a couple of
cases namely:-
Mahabir Prasad, vs. Jage Ram and others reported in
1971 0 AIR(SC) 742
Dolai Maliko and others vs. Krushna Chandra Patnaik
and others reported in 1967 0 AIR (SC) 49.
10. Ld. Counsel, Mr. Md. Nure Zaman, appearing on behalf
of the opposite party no. 1 in connection with C.O. no. 616 of
2024 & C.O. No. 617 of 2024 has highlighted the ground of
limitation and submitted that all the three substitution
applications were filed by the petitioners well after the demise
of said Bimala Das i.e. on 16.11.2020.
11. In support of his contention, Mr. Zaman has referred the
following case of Balwant Singh vs. Jagdish Singh & Ors.
reported in (2010) 8 SCR 597
Analysis:-
12. Before going into the nitty-gritties of the revision
applications, I think it would be feasible to first discuss the
ratio of the referred cases on behalf of the parties which are as
follows:-
13. In Mahabir Prasad (supra) the Hon'ble Apex Court laid
down that in a case where the heirs to be substituted are
already on record, substitution application within the
prescribed period of limitation is not necessary. There can be
no abatement of the suit merely because no application for
impleading the other heirs and legal representatives of the
deceased has been made within the period of limitation.
14. In Dolai Maliko (supra) the Hon'ble Supreme Court
remarked that even where the plaintiff or the appellant has
died and all his heirs have not been brought on the record
because of oversight or because of some doubt as to who are
his heirs, the suit or the appeal, as the case may be, does not
abate and the heirs brought on the record fully represent the
estate unless there are circumstances like fraud or collusion.
15. In Balwant Singh (supra) The Hon'ble Apex Court dealt
with an issue of death of the sole petitioner and admittedly no
steps were taken to bring on record the legal representatives of
deceased for a considerable period of 778 days, which is,
absolutely not at all identical with the issue of impleading
remaining co-sharers in addition to other subsisting co-
sharers, in the cases dealt with by this Court. Therefore, the
observation made by the Hon'ble Apex Court in the case of
Balwant Singh (supra) cannot be said to be squarely
applicable to the cases at hand.
16. The contentious issue in all the revision applications at
hand is that whether the substitution application filed by the
petitioners qua revision applications are liable to be tested by
the provisions of law of limitation or abatement by operation of
law.
17. The principles established for Substitution affirm that the
rights of co-sharers are protected even in the absence of all
parties, provided that the remaining parties can adequately
represent the interests of the deceased. Legal representatives
can be substituted even after the limitation period if the cause
of action survives, and the Court retains the discretion to
ensure that all necessary parties are included for a fair
adjudication of the case.
18. In the instantaneous cases admittedly one of the co-
sharers namely Bimala Das died living behind her legal heirs
i.e. her three sons and one daughter. Amongst them one of her
son namely Tarapada Das pre-deceased her. The other two
sons namely Sankar Das and Shibpada Das/ opposite party
no. 11 & 12 herein have admittedly been added by way of
substitution in place of their deceased mother and the
petitioners herein subsequently filed the substitution
applications beyond the period of limitation on the ground that
they were out of station for an excursion when the opposite
party no. 11 & 12 were substituted as the legal heirs of said
Bimala Das.
19. It is settled proposition of law that where some co-
sharers are already on record, the remaining co-sharers can be
impleaded as parties to the suit. The Courts have recognized
that the absence of some co-sharers does not necessarily lead
to the abatement of the suit, especially if the remaining parties
can adequately represent the interests of the absent co-
sharers.
20. Therefore, in my humble opinion, it is permissible to
implead remaining co-sharers in a pre-emption case even if the
application for substitution is made beyond the limitation
period, provided that the rights of the parties are not
compromised.
21. In the aforesaid view of the matter, the prayer of the
petitioners herein for substitution stands allowed. Their names
be incorporated in the cause title of the Miscellaneous (Pre-
emption) cases accordingly. As a sequel, the orders assailed in
the revision applications stand set aside.
22. Accordingly, the revision applications being no. C.O. 615
of 2024, C.O. 616 of 2024 & C.O. 617 of 2024 stand disposed
of.
23. Considering the long pendency, Ld. Trial Judge is
requested to take note of the necessary changes and dispose of
all three Miscellaneous (Pre-emption) cases within 6 months
from the date of communication of this order without affording
any unnecessary adjournment to either of the parties.
24. Interim order, if there be any, stands vacated.
25. Connected applications, if there be, also stand disposed
of accordingly.
26. All parties to this revisional applications shall act on the
server copy of this order downloaded from the official website of
this Court.
27. Urgent Photostat certified copy of this order, if applied
for, be supplied to the parties upon compliance with all
requisite formalities.
[BIBHAS RANJAN DE, J.]
