TAPAN KUMAR GHANA Vs. SANKARI BALA SANTRA

JUDGEMENT

(1.) THE instant application under Article 227 of the Constitution of India is directed against the judgment and order dated 19.11.2009 passed in Misc. Appeal No.7 of 2009 by the learned Additional District Judge, 1st Track, 4th Court, Tamluk, affirming the judgment and order No.45 dated 13.3.2008 passed in J. Misc. Case No.40 of 2002 by the learned Civil Judge (Junior Division), 1st Court, Tamluk.

(2.) UPON hearing the learned Counsel for both the parties and also after going through the materials-on-record including the order No.45 dated 13.3.2008 as also the impugned order dated 19.11.2009 it could be detected that the petitioners by filing an application under Sections 8 and 9 of the West Bengal Land Reforms Act, 1955 prayed for preemption of the case land comprised in Plot Nos. 1429 and 1426 as co-sharers, in the Court of Civil Judge (Junior Division), 1st Court, Tamluk. It would appear that the learned Civil Judge (Junior Division), 1st Court, Tamluk after hearing the learned Counsel for both sides and also considering the materials-on-record arrived at a finding that the case was barred by limitation and thus he was pleased to dismiss the case by passing the order dated 13.3.2008.

(3.) ON the other hand, Mr. M.R. Karmakar, learned Counsel appearing for the opposite party argues and submits that the concurrent findings of both the Courts below cannot be called in question inasmuch as the petitioners despite their knowledge about the transfer of the suit property failed to apply for preemption of the same in accordance with the provision laid down in Section 8 of the Land Reforms Act. He further urges that the order impugned cannot be said to be untenable in the eye and estimation of law and as such the same deserves no interference by any Court of law. In support of his contention, learned Counsel for the opposite party relies upon a ruling reported in (2004) 4 Supreme Court Cases 252 Gopal Sardar Vs. Karuna Sardar, (2001) 7 Supreme Court Cases 197 Bibi Salma Khatoon Vs. State of Bihar & Ors. as also a copy of order dated 19th April, 2010 passed by the Hon 'ble Apex Court in Civil Appeal No.3494 of 2010, arising out of Special Leave Petition (Civil) No.23135/2007 Sanjay Kumar Vaish & Ors Vs. Rajendra Kumar Agarwal & Ors. and emphatically contends that the petitioners in spite of being made aware about the transfer of the subject land did not file the preemption application within the prescribed period as admissible under the law and as such the order impugned could be said to be quite justifiable.