AJIT MONDAL Vs. TAPAN KUMAR GHANA

JUDGEMENT

(1.) A seemingly settled position at law appears to have been disturbed by a recent judgment of this court that has resulted in the order impugned being passed. The issue involved is as to the time available to a non-notified co-sharer to apply for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955.

(2.) THE parties do not dispute the facts as recorded in the appellate order of June 13, 2012 that has been assailed herein. The opposite party Nos. 1 to 4 herein filed a petition under Sections 8 and 9 of the said Act of 1955 seeking to purchase the 'Ka' schedule property which they claimed to be a part of the 'Kha' schedule property. According to the petitioners in the pre-emption proceedings, one Sital Prasad Mondal was the owner of half share of the 'Kha' schedule property and the other half of such property was owned by Madan Mondal and Bankim Mondal. Upon the death of Bankim, Madan inherited Bankim's share. Thus, Sital and Madan became the joint owners of the 'Kha' schedule property in equal share. Sital and Madan transferred such property in favour of Netai Sau and Samar Chandra Sau by a registered deed of March 13, 1969. Netai transferred 4/5 decimal of land in plot No. 1426 in favour of the fourth petitioner in the pre-emption proceedings by a registered deed of sale dated December 27, 1991. Following the death of Netai thereafter, by a registered deed of sale of March 31, 1995, the heirs of Netai transferred a part of the land covered by plot No. 1426 and another part of the land covered by plot No. 1427 in favour of the first three petitioners in the pre-emption proceedings. The petitioners in the pre- emption proceedings, thus, became co-sharers of plot Nos. 1426 and 1427 along with Samar Chandra Sau. Samar transferred a part of his holding in plot No. 1426 and another part of his holding in plot No. 1427 in favour of the petitioners in this court by a registered deed of sale of August 30, 1999. It is such transfer that was sought to be pre-empted. It is the case of the petitioners in the pre-emption proceedings that no notice of such transfer was given to the petitioners in the pre-emption proceedings, being the opposite party Nos. 1 to 4 herein. The petitioners in the pre-emption proceedings did not indicate in the petition the date when they came to know of the impugned transfer. The parties have referred to the petition filed under Sections 8 and 9 of the said Act of 1955 and there is no dispute on such score. The pre-emption petition was lodged on July 7, 2002, which was within three years of the date of registration of the impugned transaction. The impugned transfer is referred to in the pre-emption petition as the 'Ka' schedule property and the petitioners in the pre-emption proceedings claimed that they had a right to seek an order of pre-emption over such property.

(3.) THE petitioners herein claim that since the right asserted by the petitioners in the pre-emption proceedings was as non-notified co-sharers, the petition under Sections 8 and 9 of the 1955 Act was barred by the laws of limitation. The petitioners herein contend that it is beyond question that proceedings for pre- emption are regarded as original proceedings and Section 5 of the Limitation Act would not apply thereto. They suggest that the period within which a petition under the relevant provision has to be carried to court has been indicated in Section 8 of the 1955 Act and, unless the petitioners in pre-emption proceedings demonstrate good cause under Sections 4 to 24 of the Limitation Act, the time prescribed under Section 8(1) of the 1955 Act has to be adhered to.