GAYA PROSAD SHAW Vs. KHAGENDRA N CHAKRABORTY

JUDGEMENT

(1.) THE petitioner sought to pre-empt the sale dated 3rd October, 1978 made by one Bankim Behari Shaw in respect of 11-5/8 decimals of land in Dag Not 697 appertaining to R. S. Khatian no. 135 in Mouza Bagpura. J. L. No. 202 under Police Station Ramnagar within the District of Midnapore, in favour of the opposite party, on the ground that the petitioner was a co-sharer in respect of the holding to which the said plot belonged and also on the ground of vicinage, under Section 8 of the West Bengal Hand Reforms Act, 1955. The case as made out by the petitioner in his pre-emption application inter alia, was that the suit plot originally belonged to three persons namely, kunja, Bankim and Rudra. Kunja had 8 annas share in the suit property while Bankim and Rudra had annas share each therein. The petitioner had purchased the share of Rudra from the heirs of Rudra prior to the disputed sale and thus became a co-sharer in the suit plot along with Bankim and Kunja and hence he was entitled to pre-empt the subsequent sale made by Bankim in favour of the opposite party on 3rd October, 1978. The petitioner in his said application had further stated that' the disputed land was mutually partitioned between the said three recorded owners and each of the said recorded owners was occupying his demarcated portion in the suit plot. The petitioner further stated that although the execution of the disputed sale was dated 3rd october, 1978 but registration of the same was complete on 10th. November, 1981 when the said sale deed had entered into the volume-book of the registration office. The petitioner had no prior knowledge of the sale and for the first time came to know of the same on 20th october, 1982 when the opposite party tried to take possession of the disputed land. The said pre-emption application was filed on 19th november, 1982. The petitioner also filed an application under Section 5 of the Limitation Act along with the said application for pre-emption and stated that he was a non-notified co-sharer and as such the period of limitation for filing the said application would be three years from the date of knowledge.

(2.) THE opposite party entered appearance in the said pre-emption case which was registered as Judicial Miscellaneous Case No. 108 of 1982 of the First Court of the learned Munsif at Contai , Midnapore and filed his written statement denying and disputing the material allegations as made in the pre-emption application. The learned Munsif, by his Order No. 22 dated 14th December, 1985 dismissed the said application under Section 5 of the Limitation Act, inter alia, on the ground that the supporting affidavit was filed by the petitioner three years after the date of filing of the original application for condonation of delay and as such the affidavit dated 2 8th July, 1985 was not worthy of credence and the petitioner was also silent about the delay in filing the said affidavit after such a long time. Against the said order the petitioner moved this Court in revision and obtained the present Rule.

(3.) MR. Pradip Chakraborty, learned Advocate appearing for the petitioner submits that since the petitioner was a non-notified co-sharer and since the application was also on the ground of vicinage, the time for filing the pre-emption application should be three year's under article 137 of the Limitation Act from the date of registration of sale and as such the application under section 5 of the Limitation Act was really misconceived and was filed as an abundant caution. The application for pre-emption itself was in time and even if there was any delay, the delay was properly explained by the petitioner and the court below had acted with material irregularity in rejecting the said application under Section 5 of the Limitation Act.