PRATAP KUMAR RAY, J.

( 1 ) THIS application under Article 227 of the Constitution of India has been filed by the plaintiff of Title Suit No, 168 of 1999, a pre-emption suit, under Section 22 of the HINDU SUCCESSION ACT, 1956 whereby and whereunder prayer of the plaintiff to amend the plaint for incorporation of plots of agricultural lands as were sold by the defendant No. 1 of the suit in favour of the defendant Nos. 1 and 2 by registered sale of deed dated 10th November, 1998, was rejected on the ground that plaintiff did not file the application of amendment within one year from the date of knowledge of such transfer and further on the ground that hearing of the suit has already reached to the stage of argument on completion of the evidence of both sides. This application has been resisted by the opposite parties, the purchasers of the plots.

( 2 ) LEARNED Advocate for the plaintiff-petitioner herein has strongly contended that under Section 22 of HINDU SUCCESSION ACT, 1956, an application for pre-emption will lie within one year from the date of possession of the properties concerned, which is the subject matter of the suit of pre-emption in terms of Article 97 of the Limitation Act and in that view of the matter, since the defendants-opposite parties 1 and 2 as yet not has taken the possession of the said agricultural lands, which is the subject matter of the amendment application, the application was not time barred and to that effect the finding of the learned Court below was erroneous. Learned Advocate for he petitioner further submits that the fact as has been brought by way of supplementary affidavit of opposition, filed by the opposite parties contending that the plots, which are subject matter of amendment application were already under possession of the defendants-opposite parties, which was admitted by the plaintiff when he moved first. Misc. Case No. 5 of 1999 under Section 8 of the West Bengal Land Reforms Act, is not the real State of affairs as in that Misc. Case as subsequently was withdrawn due to non-maintainability under Section 8 of the West Bengal Land Reforms Act, the plaintiff of the suit never admitted the possession of defendant-opposite parties in respect of the plots covered under the application of amendment. Learned Advocate for the petitioner further argued that even if it is assumed that in view of the rival contentions of the parties, one is saying that the concerned plots of the said application is under their possession and other is denying, same accordingly has become a disputed question of facts which is to be resolved at the final hearing of the trial by taking evidence after allowing the amendment application. This proposition of law as thrashed by the learned Advocate for the petitioner is based on the judgment delivered by the Apex Court in the case Ragu Thilak D. John v. S. Rayappan and Ors. , reported in 2001 (2) SCC 472. It has been further argued by the learned Advocate for the petitioner that amendment application should not be rejected by the Court of law when the other side could be suitably compensated.

( 3 ) ON the other hand, learned Advocate for the opposite parties of this application who are the defendants of the suit has countered the argument of the learned Advocate for the petitioner by contending, inter alia, that not only the admission of possession as made in the application under Section 8 of the Land Reforms Act registered as Misc. Case No. 5 of 1999 but also in the written statement as filed by the opposite parties, such fact of possession has been disclosed by filing the same on 2nd March, 2000 whereas amendment application was filed by the plaintiff-petitioner on 5th October, 2002, which is far beyond the period of the one year from the date of knowledge of such possession over the concerned plots by the opposite parties through the written statement as filed. Learned Advocate for the opposite parties relied upon a judgment of this Court passed in the case I.

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