Arindam Sinha, J.

This application under Article 227 of the Constitution of India is directed against order dated 19th March, 2013 made by the Additional District Judge, 4th Court at Alipore in Misc. Appeal no.41 of 2004 by which the appeal of the petitioner/pre-emptee was dismissed.

The opposite party/pre-emptor had made an application for pre-emption stating, inter alia, the petitioner/pre-emptee obtained transfer of the suit property by registered sale deed dated 14th October, 1988. The said opposite party alleged he came to know about the transfer only when the petitioner/pre-emptee came to take possession of the suit property on 5th September, 1989.

Mr. Banerjee, learned Senior Advocate appearing on behalf of the petitioner submitted it appears on the face of the said application the same was barred by limitation. Relying on Section 3 of the Limitation Act, 1963 he submitted the application ought to have been dismissed by the learned trial court or otherwise by the learned appellate court. In support of such submission, he relied on a decision reported in (2008) 14 SCC 445 (Noharlal Verma Vs. District Co-operative Central Bank Limited, Jagdalpur) in particular paragraph 33 wherein the Hon’ble Supreme Court had held, inter alia, even in absence of such plea by the defendant, respondent or opponent, the court or authority must dismiss such suit, appeal or application, if it is satisfied that the suit, appeal, or application is barred by limitation. In making such submission, Mr. Banerjee conceded the point was not taken or urged before the learned courts below.

Mr. Banerjee, then submitted even according to the opposite party/pre-emptor he is a co-sharer and not the exclusive owner of the plot which lies to the east of the case plot. Section 8 of the West Bengal Land Reforms Act, 1955 provides that any raiyat possessing land adjoining such plot of land may within four months of the date of transfer apply for pre-emption.

In support of this submission, Mr. Banerjee relied on the decision reported in (2004) 1 WBLR (Cal) 812 (Amal Kumar Giri Vs. Noni Gopal Paira & Ors.). In that decision it was held the claim for pre-emption on the ground of vicinage can succeed only if such claimant can show by positive evidence that he is the exclusive owner of the property by relying on, inter alia, the decisions reported in 1980(1) CLJ 395 (Kedarnath Panchadoyee & Ors. Vs. Nagendranath Mahapatra & Ors.) and 1995 WBLR(Cal) 263 (Smt. Rekha Rani Maity & Ors. Vs. Jagatapati Sashmal).

Mr. Banerjee, further submitted since the opposite party/pre-emptor is a co-sharer, therefore too, he cannot claim to have common boundary with the suit plot and in any event in the objection filed by the petitioner, it was disputed the pre-emptor was the owner of any contiguous land of the case plot.

Mr. Banerjee still further submitted that the decision reported in 2000(1) CHN 505 (Smt. Bula Kundu Vs. Nirmal Kumar Kundu & Anr.) relied upon by the learned trial court below cannot be said to be good law in view of the amendment to Section 8 of the said Act, whereby the word ‘holding’ was substituted by the word ‘plot’ in relation to pre-emption claimed by adjoining owner.

Mr. Bhattacharjee, learned Advocate appearing on behalf of the opposite party/pre-emptor submitted by relying on the decisions reported in AIR 1961 SC 1747 (Ram Saran Lall & Ors. Vs. Domini Kuer & Ors.) in particular paragraph-5,6 and 8, AIR 1981 (Cal) 435 (Krishna Chandra Pramanik & Ors. Vs. Hari Sadhan Sahana & Anr.) Para-9, 2000(2) CLJ 571 (Smt. Pranati Biswas Vs. Mantu Kumar Lal) in particular paragraph 7 and AIR 1977 AP 90(Shaik Buddan Sab & Ors. Vs. Nagamma & Ors.) in particular paragraph 18, a claim for pre-emption made within 4 months from the date of transfer was maintainable if made within 4 months from the transfer being complete by registration as provided in Section 61 of the Registration Act. He further submitted the petitioner got registered his document of transfer and ne