Article 97 of the Limitation Act, 1963 does not apply to an application under section 4 of the Partition Act in a pending partition suit.

Prabir Kumar Samanta, J.

1. An application under section 4 of the Partition Act in a pending partition suit whether would be hit or not by Article 97 of the Limitation Act, 1963 is the subject matter for consideration in this revisional application.

2. The facts of this case for the present purpose are stated as under. One Sibapada Paul filed a suit for partition against the predecessor-in-interest of the defendant/petitioner of this revisional application. The said suit was registered as Title Suit (Partition) No. 44 of 1981. The said suit was for partition of a joint family dwelling house being premises No. 8D. Akrur Dutta Lane. It was alleged in the said partition suit that the aforesaid joint family dwelling house namely premises No. 8D, Akrur Dutta Lane belonged to Sibapada Paul and Nader Chandra Paul, the predecessor-in-interest of the defendant in majority shares. During the pendency of the aforesaid partition suit said Sibapada Paul allegedly entered into an agreement on 23rd December, 1986 with the opposite parties herein namely Babulal Rojha, Gogen Rojha, Gorachand Rojha and Gobinda Rojha for sale of his share in the said premises. On his death his wife, namely Smt. Dolly Paul by a registered deed of conveyance dated 5.10.1991 sold away all her right, title and interest in the said premises in favour of the said Rojhas. The said Rojhas' were thus added as plaintiffs in the said partition suit. In the said partition suit the defendant/petitioner made an application under section 4 of the Partition Act for buying out the share of Sibapada Paul in the said joint family dwelling house which was transferred as above to the strangers to the family namely the said Rojhas, the opposite parties herein. The said application was filed on 18th March, 1993 while the deed of conveyance in favour of the said Rojhas was registered on 5.10.1991. The said Rojhas being added as plaintiffs to the partition suit raised a plea that in view of the Article 97 of the Limitation Act, 1963 the said petition under section 4 of the Partition Act was barred by limitation which was upheld by the impugned order dated 30th June, 2000 made in Misc. Case No. 2560 of 1994 which arose out of the said application under section 4 of the Partition Act filed in the original partition suit being Title Suit No. 44 of 1981 as aforesaid.

3. The Article 97 of the Limitation Act in its terms prescribes limitation of one year for the purpose of enforcing a right of pre-emption where the right is founded on law or general usage or on special contract. The starting point of limitation has been prescribed as the time, when the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold, or where the subject matter of the sale does not admit of physical possession of the whole or part of the property, when the instrument of sale is registered. In this case the added plaintiffs/opposite parties alleged that possession of one room in the suit premises was made over to them on the date of sale i.e., 5.10.1991. Accordingly, it was contended that the application by the defendant/petitioner under section 4 of the Partition Act on 18.3.93 after expiry of the period of one year was barred. The learned Trial Court upheld the said contention as it was recited in the said deed of conveyance dated 5.10.1991 that possession had been delivered to the said transferees on the self same date.

4. Apart from the question involved in this revisional application the impugned order on it's face cannot be sustained as the learned Judge took it for granted that possession was delivered on the date of registration as recited in the deed of conveyance. Such a question ought to have been decided on the basis of the evidences of the parties in relation thereto. Even upon plain reading of the Article 97 of the Limitation Act, it appears that the possession as mentioned therein speaks of actual physical possession of the whole or part o