IMPORTANT POINT
Right to Pre-emption – Application for pre-emption under Section 4 of Partition Act can be made at any stage of partition suit so long entire partition decree is not satisfied – It is only when decree engrossed on stamp paper, joint title of parties comes to an end and parties ceases to be a co-sharer.

JUDGMENT

Ajoy Kumar Mukherjee, J.—This appeal has been preferred against Judgement and order dated 24th April 2014 passed by Learned Additional District Judge, 5th court Howrah, in Title Appeal no 152 of 2012, which was preferred against judgement and decree dated 28.08.2012 passed by Civil Judge (Sr.Division) 2nd court, Howrah in Title Suit no 25 of 1998.

2. Brief background of the present case needs to be stated at the outset. The property in dispute comprising of dwelling house over land measuring about 2 katha 7 chattak 20 sq ft, known as 6/2, Asutosh Mukherjee Lane, originally belonged to one Bhola Nath Majilya who during his lifetime executed a registered deed of “Nirupan Patra” on 10th July 1985, by which he settled the said dwelling house in favour of his three sons namely, Subuddhi Bhajan Majilya, Harekrishna Majilya and Debnarayan Majilya in equal share. Thereafter Subuddhi Bhajan mortgaged his 1/3rd share in the said premises in favour of respondent no. 1 herein, Swapan Mandal by executing an ostensible deed of sale and simultaneously an agreement of reconveyance was also executed on the same date. Subsequently on 16th Sep 1998, said respondent no. 1 Swapan Mandal reconveyed the property by executing a registered deed of Re-conveyance in favour of Subuddhi. Thereafter on 11th April, 1997, aforesaid Harekrishna and Debnarayan sold their 2/3rd share of the said premises in favour of appellant herein, Bijon Ghosh. On 26th February 1998 appellant/Bijon filed Title Suit no. 25 of 1998 against said Subuddhi Bhajan and Swapan for partition and injunction relating to aforesaid suit building. During pendency of the said partition suit, Subuddhi Bhajan i.e. defendant no 2 of that suit filed one Misc. case being 5 of 2000 under section 4 of the Partition Act 1893, seeking pre-emption of the transferred portion to the stranger purchaser i.e. appellant herein.

3. Learned Trial Court heard the partition suit as well as aforesaid Misc. case seeking Pre-emption analogously and by the judgement and decree dated 28.08.2012 was pleased to dismiss aforesaid Misc. case no. 5 of 2000 on the ground of limitation relying upon section 97 of the Limitation Act and decreed the partition suit being Title Suit no. 25 of 1998 in preliminary form.

4. Being aggrieved by that judgment and decree, the substituted defendant/respondent no 2 series herein preferred appeal being Title Appeal no. 152 of 2012 before Learned District Judge, Howrah, which was subsequently transferred before Additional District Judge, 5th court, Howrah for disposal. The appellate court vide its judgement dated 24th April 2014 was pleased to allow the said appeal after setting aside the judgment and decree passed by the learned Trial Court and sent back the suit on remand to the Trial Court for hearing afresh the Misc. case no. 5 of 2000.

5. Being aggrieved by the aforesaid judgment of remand, passed by the first appellate court the appellant/plaintiff have preferred this Misc. Appeal before this court. While admitting the Misc. Appeal this court was pleased to formulate following substantial questions of law:—

(i) Whether the Ld. Judges in the courts below, substantially erred in law in not considering the provisions of Articles 97 of the Limitation Act, which says that the period of Limitation to Pre-empt a property is one year?

(ii) Whether the ld. Judge in the lower appellate Court substantially erred in law in not considering that the application for pre-emption under Section 4 of the Partition Act was barred by limitation in view of Article 97 of the Limitation Act?

Decision

6. At the outset it is to be mentioned that learned Trial Court rejected defendants prayer for pre-emption filed under section 4 of the Partition Act stating that in the instant case the sale was effected on 11.04.1997 and the Trial Court observed that Article 97 provides that the period of limitation to pre-empt the property is one year, which runs from the time when the purchaser takes physical