JUDGMENT :

Bibhas Ranjan De, J.

1. I am dealing with the revision application under Article 227 of the Constitution of India whereby petitioners challenged proceeding of Misc. Case No. 09 of 1999 arose out of a petition under Section 4 of the Partition Act, 1893 (hereinafter referred to as Act, 1893), pending before the Learned Civil Judge (Senior Division), 9th Court, Alipore, South 24 Parganas (South).

Background in brief:-

2. The property in question being undivided dwelling house originally belonged to Dilip Kumar Dutta and Pradip Kumar Dutta. Dilip Kumar Dutta died leaving behind his wife, petitioner of the Misc. Case, and two married daughters. Pradip Kumar Dutta also died leaving behind his wife and sons (OP Nos 1 & 2 in the Misc. Case) and OP No. 3 Mihir Kumar Das is a tenant in a portion of the suit property. The heirs of Dilip took out a Partition Suit (T.S. 33/1997) against legal heirs of Pradip Kumar Das incorporating said Mihir Kumar Das as proforma defendant. In the partition suit said Mihir Kumar Das claimed himself the owner of share of Pradip Kumar Dutta by purchase. Thereby, said Mihir Kumar Das was transposed as defendant no. 3.

3. During pendency of the partition suit heirs of Dilip Kumar Das (Co-owners) took out an application under Section 4 of the Act, 1893 against legal heirs of Pradip & Mihir Kumar Das i.e. all defendants of the partition suit.

4. Only Mihir Kumar Das contested the Misc. Case arose out of the application under Section 4 of the Act 1893, on some issues but, issue, high on the list, is that the application under Section 4 of the Act, 1893 cannot be taken out by the co-owners who filed the partition suit.

5. I have had the opportunity to peek into judgment passed by Hon’ble Division Bench in the Appeal from the original decree No. 107/1999 in respect of the property involved in the partition suit. Clear mandate of the Hon’ble Division Bench was that the property in question was unpartitioned although some specific portion were in possession of the parties by mutual arrangement. That mandate remained unchallenged.

6. Therefore, only question to be adjudicate by this Court is whether co-owner being a party to a partition suit can persue the right of pre-emption by filing an application under Section 4 of the Act 1893.

7. Learned advocate, Mr. Sandip kumar Bhattacharyya appearing on behalf of the petitioners assailed the proceeding of the Misc. Case no. 9 of 1999 on the proposition that right of pre-emption under Section 4 of the Act, 1893 can only be invoked by the co-sharer of the property if transferee sues for partition not otherwise. Mr. Bhattacharyya has contended that admittedly partition suit was not filed by Mihir Kumar Das who is a stranger purchaser/transferee.

8. Mr. Bhattacharyya raised another issue of limitation and has submitted that Article 97 of the Limitation Act, 1963 bars the right of pre-emption claimed beyond one year from the date when dispute regarding purchase of property surfaced.

9. In support of his argument Mr. Bhattacharyya relied on a case of A.R. Antulay Vs. R.S. Nayak and another reported in (1988) 2 SCC 602 and Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329.

10. Per Contra, Learned Advocate, Mr. Gopal Chandra Ghosh, appearing on behalf of the opposite party has drawn my attention to the paragraph 13 of the written statement filed by the stranger purchaser, Mihir Kumar Das (defendant no. 3 in the partition suit, quoted in the judgement passed in Appeal from original decree no. 107 of 1999.

11. Mr. Ghosh, pointing out the relevant paragraph of written statement filed by the defendant no. 3, stranger purchaser, has submitted that defendant no. 3 not only participated in the proceeding for partition but also expressed his inclination for partition of the suit property. Thereby, Mr. Ghosh has equated the inclination for partition with one words “ Sues for partition” inscribed in Section 4 of the Act, 1893.

12. In support of his contention,