SRIMATI KUNNI DEVI AGARWAL Vs. MOHAMMED PARVEJ

JUDGEMENT

(1.) THE plaintiff -opposite party Mohammed Parvej filed a suit in the Court of the Sub -Judge (now Civil Judge, Senior Division), Rourkela, for pre -emption of a sale of a shop room in favour of the defendant -petitioner by a registered sale deed dated November 16,1988. From the pleadings of the parties it appears that the shop room originally belonged to Md. Umer and the defendant -petitioner was a tenant in respect of the said shop room. It also appears that the relevant sale deed was executed on November 16, 1983. The same was copied out and delivered on March 29, 1990. The pre -emptor -plaintiff has also alleged that on the date of execution of the deed, i. e. November 16, 1988, he advanced his claim of right of pre -emption and demanded re -sale of the property to him and again on March 29, 1990, i.e. the date of delivery of the registered document, he demanded the resale of the property affirming his previous demand. The suit for pre -emption was filed on June 24, 1991.

(2.) THE pre -emptee defendant raised an objection that the suit was barred by limitation as the same was filed beyond the period prescribed by Article 97 of the Limitation Act, 1963. The said issue, whether the suit was barred by limitation was tried as a preliminary issue. By the impugned order, the trial Court has held that the suit is not governed by Article 97, but by Article 113 of the Limitation Act, 1963, and accordingly it is not barred by the law of limitation. The pre -emptee defendant has moved this Court in its revisional jurisdiction against the said order of the trial Court.

(3.) MR . A. Mohapatra, learned Advocate for the pre -emptee petitioner has urged that the claim for pre -emption under the Mahommedan Law being a right founded on law, is governed by Article 97 of the Limitation Act and the trial Court has committed error in holding that Article 97 of the Limitation, Act is not applicable.