The provisions of Section 5 and Section 17 of the Limitation Act do not apply to pre-emption proceedings filed by adjoining land owners under Section 8 of the West Bengal Land Reforms Act.

Tapan Mukherjee, J.

This revisional application is directed against the order passed by the learned Additional District Judge Alipore in Misc. Appeal No. 294 of 1992 reversing the impugned order dated 6.6.1992 passed by the learned Munsif, Alipore in Misc. Case No. 70 of 1987 allowing the petition for pre-emption under section 8 of the West Bengal Land Reforms Act, 1955 on the ground of vicinage.

2. It has been contended by the learned Counsel for the petitioner that the petitioner is the adjoining land owner of the disputed property which was transferred to O.P. No.1 by O.P. No.2 by virtue of the registered deed of sale dated 28th April, 1986. Though the said property was purchased by O.P. No.1 on 28th April, 1986, the said fact, was not brought to the notice of petitioner pre-emptor by or exercising fraud and on 24th June, 1987 the O.P. No.1 for the first time came to the case land and she was digging earth on the case land with a view of raising the same to high land an being questioned by the petitioner the O.P. No.1 for the first time disclosed to the petitioner that she had purchased the disputed land from O.P. No.2 by way of registered Kabala dated 28th April, 1986. After searching, the petitioner got the certified copy on 27th June, 1987 and filed the application for pre-emption under section 8 of the West Bengal Land Reforms Act, 1955 as an adjoining land owner having the largest common boundary.

3. The learned Counsel of the petitioner has further contended that for keeping the matter of transfer secret for a long time from 26.04.1986 to 24.06.1987, the possession of the disputed land was not taken by the O.P. No. 1 only to prevent the petitioner from knowing about the said transfer and from taking appropriate remedy under section 8 of the West Bengal Land Reforms Act, 1955 within the prescribed time of four months from the date of transfer. The learned Counsel of the petitioner has also contended that the Kabala was executed on 28.04.1986, the same was registered on 16.06.1986 and the registration was completed on 30.09.1986. The learned Counsel of the petitioner has further contended that as fraud was exercised upon the petitioner by the O.P. No.1 and the fraud was discovered only on 24.06.1987 so the petitioner was entitled to the benefit of section 17 of the Limitation Act and to file the application for pre-emption within four months from the date of discovery of fraud.

4. Mr. Hiranmoy Bhattacharyya, learned Counsel of the petitioner has further contended that in view of the provisions of section 5 sub-section (5) of the West Bengal Land Reforms Act. the notice of transfer is not only to be served upon all the co-sharers of the land who are not parties to the transfer but a copy is required to be fixed on the plot of land which has been transferred. In this case, no notice of transfer was served on the disputed land in compliance with the provisions of section 5(5) of the West Bengal Land Reforms Act to conceal the matter of transfer.

5. Mr. Bhattacharyya has placed reliance upon the ruling reported in 2005(1) CHN at page 140 in support of his contention that though section 5 of the Limitation Act docs not apply to the proceedings of pre-emption, section 17 of the Limitation Act apply when there is a case of fraud. He has also placed reliance upon the ruling reported-in 2005(3) Indian Civil Cases page 317 in support of his contention that section 17 of the Limitation Act cannot be excluded in case of pre-emption proceeding.

6. The learned Counsel of the O.P. No. 1 has contended that the learned Appellate Court has rightly set aside the order of the learned Munsif allowing the petition for pre-emption under section 8 of the West Bengal Land Reforms Act, 1955. The learned Counsel of the O.P. No.1 has further contended that the petitioner was well aware of the said transfer of the disputed land and that the provisions of the Limitation Act do not apply and the petitioner is not entitled to protection either unde