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HIGH COURT OF CALCUTTA
Tarun Chatterjee, J.
Dasarath Bhunia
vs.
Haripada Bhunia
CIVIL REVISION C.O. No. 3810 of 1991
Decided On : January 15, 1996
PRE-EMPTION - WEST BENGAL LAND REFORMS ACT - SECTION 8 - LIMITATION - CONDONATION OF DELAY - SECTION 5 OF LIMITATION ACT - VICINAGE - CO-SHARER - AMENDMENT OF APPLICATION - FRAUD - SUFFICIENT CAUSE - SECTION 115 OF THE CODE OF CIVIL PROCEDURE.
Fact of the Case:
Petitioner filed a pre-emption application under Section 8 of the West Bengal Land Reforms Act (Act) on grounds of co-sharership and vicinage, along with an application under Section 5 of the Limitation Act for condonation of delay. Both courts below proceeded on the basis that the petitioner had claimed pre-emption on the ground of vicinage only. The petitioner argued that Section 5 of the Limitation Act is maintainable in a proceeding under Section 8 of the Act and that the period of limitation should be computed from the date of knowledge of the transfer, not the date of transfer, if fraud is established.
Finding of the Court:
The court held that Section 5 of the Limitation Act is not attracted to a proceeding under Section 8 of the Act. The period of limitation for filing an application for pre-emption on the ground of vicinage is four months from the date of transfer, as prescribed in Section 8(1) of the Act. The court also held that the application for pre-emption was time-barred since it was filed well beyond the four-month limitation period. The court further held that the plea of fraud was not accepted by the courts below, and therefore, there was no need to go into the question of whether the limitation period could be extended in cases of fraud.
Issues: 1. Whether Section 5 of the Limitation Act is maintainable in a proceeding under Section 8 of the West Bengal Land Reforms Act. 2. Whether the period of limitation for filing an application for pre-emption on the ground of vicinage can be computed from the date of knowledge of the transfer, not the date of transfer, if fraud is established. 3. Whether the application for pre-emption was time-barred.
Ratio Decidendi: 1. Section 8 of the Act confers the right of purchase to co-sharers or contiguous tenants. Section 8(1) of the Act itself prescribes the period of limitation. The court held that the legislature intended to prescribe a fixed period of limitation that starts from the date of transfer in the case of a Bargadar and an adjoining owner, and not like the period of limitation prescribed for a co-sharer of the holding. 2. The court held that the Division Bench decision in Ashalata vs. Gopal Chandra (1975 (1) CLJ 494) clearly held that the application for pre-emption on the ground of vicinage must be filed within four months from the date of transfer and that Article 137 of the Limitation Act had no manner of application in the cases of vicinage. 3. The court held that the application for pre-emption was filed well beyond the period of limitation of four months from the date of transfer, and therefore, it was clearly time-barred.
Final Decision: The revisional application was rejected.
Tarun Chatterjee, J : This revisional application raises amongst others a question which has already been decided by me in the case of Minor Subir Ranjan Mondal vs. Sitanath Mukherjee. reported in 1994 (1) CLJ 106. One of the question that is raised in this revisional application is whether, in & pre-emption proceeding filed under s. 8 of the West Bengal Land Reforms Act (hereinafter referred to as the 'Act'), s. 5 of the Limitation Act is for condonation of delay in filing the application under s. 8 of the Act attracted or not. Precisely this question was decided by me in the aforesaid decision. In that decision. 1 have given my reasons for the conclusion that s. 5 of the Limitation Act is not attracted to a proceeding under s. 8 of the Act. The learned Advocate for the pre-emptor/petitioner tried to persuade me to change my views expressed in the decision reported in 1994( 1) CLJ 106 by making an elaborate argument. A written argument has been filed on behalf of the pre-emptor/petitioner incorporating therein the argument in support of the conclusion that an application under s. 5 of the Limitation Act is maintainable in a proceeding under s. 8 of the Act. In the written argument some other points have also been raised by the petitioners. Before I go into the details of the submissions contained in the written argument, let me state in a nutshell the case of the petitioner in the petition under s. 8 of the Act which is as follows:
2. The petitioner was a co-sharer and also an adjoining land owner. He filed the pre-emption under s. 8 of the Act as a co-sharer and also as an adjoining land owner along with an application under s.5 of the Limitation Act. The application for pre-emption relates to a deed of sale executed on 12th of December, 1984. According to the petitioner, he was kept out of knowledge of the aforesaid transfer on account of fraud till 30th October, 1987 when the application under s. 8 of the Act for pre-emption of the aforesaid transfer on 29th of November, 1987 with an application under s.5 of the Limitation Act was filed. Both the Courts below proceeded on the basis that the petitioner had claimed pre-emption on the ground of vicinage only. The learned advocate for the petitioner had also argued in respect of the claim for pre-emption on the ground of vicinage only. It is well settled law now that after the amendment of the definition of 'holding' in the Act practically the right of pre-emption on the basis that the pre-emptor is a cosharer of the holding has been taken away.
3. Let me now consider the first branch of submission of the learned Advocate for the pre-emptor/petitioner. He contended that when a non-notified co-sharer before the amendment of the definition of 'holding' could file an application for pre-emption under s. 8 of the Act within 3 years under Article 137 of the Limitation Act and as the right of pre-emption on the ground of being a cosharer has now been practically taken away after amendment of the definition of holding, why the same period of limitation of 3 years would not be attracted in the case of vicinage also. In support of this contention he relied on a Single Bench decision of this Court in the case of (Promod Ranjan Banerjee vs. Mirapada Mondal ) reported in AI R 1980 Cal 181. This argument of the learned Advocate for the petitioner is in my view, of no substance. Section 8 of the Act confers right of purchase to co-sharer or contiguous tenant. Section 8 (1) of the Act itself prescribe the period of limitation. Section 8 as it stands now confers right of pre-emption to (1) Bargadar, (2) Co-sharer Raiyat and (3) contiguous tenant. In the case of Bargadar the application for pre-emption is to be filed within 3 months from the date of transfer. In the case of co-sharer raiyat of the holding the application for pre-emption has to be filed by him within 3 months of the service of notice/given to him under s. 5(5). In the case a raiyat possessing land adjoining such holding t
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