GANGADHAR BHANDARI Vs. LALMOHAN MUKHERJEE

JUDGEMENT

(1.) THE Opposite party, the pre-emptor, by his deed of purchase dated April 12, 1972 became a co-sharer with one Sanat Kumar of the holding No. 407, of P. S. Haripal, mouja Prasadpur District Hooghly. Sanat by a kobala dated February 20, 1973 sold his undivided share to the petitioner herein, the pre-emptee. On the allegation that notice of the sale was fraudulently not served on him nor had he any knowledge of the sale earlier than December 16, 1974, the premptor filed an application on January 21, 1975 before the learned Munsif, Second court, Chandannagore for transfer of the said share to him on deposit of the consideration money and compensation under Section 8 of the West Bengal land Reforms Act, 1955. The application was opposed by the pre-emptee on the ground of limitation, as the application was not filed within the statutory period of three months from the service of notice under Section 5 (5) and no fraud was committed in regard to service of notice. Further the pre-emptee claimed that he had made substantial improvements in the land by digging a tank in a portion thereof and making, it suitable for cultivation with the earth therefrom while providing for irrigation incurring expenses of Rs. 2000/- only. These facts were known the pre-emptor who had come up long after the statutory period to grab the property since made valuable and the application in the circumstances should be dismissed.

(2.) DURING trial, it transpired that the pre-emptee had taken all steps for service of notices at the time of registration of his kobala as required under section 5 (4) filing requisite notices giving particulars of the transfer with process fees mentioning the name of the pre-emptor as the co-sharer of the holding in his purchase deed. The trial court found that there was no fraud on the part of the pre-emptee in respect of notice and all steps as required under section 5 (4) were taken by him. As there was a presumption of regularity of official acts, the pre-emptor having taken no steps to rebut the presumption about fraud in matter of service of notice and affixation of notice, he was not entitled to the benefit of section 18 of the Limitation Act. The application was accordingly dismissed.

(3.) ON appeal it was held that there could be no presumption of service on the applicant on the evidence of the pre-emptor that no notice was served on him and in the absence of the production of the orders of the Registrar for service of notice with further endorsement that such notice had been served. It was held that Article 137 of the Limitation Act, 1963 applied, so that the application was not barred by limitation which is three years from the date the right to apply accrues. The appeal accordingly succeeded and the pre-emption was acordingly allowed. This rule is directed against this order. It is now settled law that the limitation for any application in court under any Act, not otherwise provided for, is governed by Article 137 of the limitation Act 1963 which provides for three years time from the date of accrual of the right to apply. Accordingly for a non-notified co-sharer the limitation for an application in Court, if there was no service of sale of a portion of the holding; on the other co-sharers as required in law for any reason whatsoever, will be three years from the date of completion of such sale. If therefore the pre-emptor's case about non-service of notice of sale is proved the application would not be barred by limitation