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CASE NO.:

Appeal (civil) 4688 of 1998

PETITIONER:

Gopal Sardar

RESPONDENT:

Karuna Sardar

DATE OF JUDGMENT: 09/03/2004

BENCH:

Shivaraj V. Patil & D.M. Dharmadhikari

JUDGMENT:

J U D G M E N T

WITH

CIVIL APPEAL NO. 444 OF 2000

SHIVARAJ V. PATIL J.

CIVIL APPEAL NO. 4688 OF 1998

The respondent made an application under Section 8

of the West Bengal Land Reforms Act, 1955 (for brevity

’the Act’) in the Munsif Court claiming right of pre-

emption on the basis of vicinage being the owner of

adjoining plots of land purchased on 20.7.1966 and

1.6.1981. According to her, the appellant tried to

take forcible possession of the plot no. 1368 adjoining

to the east of his land. It is her case that she came

to know on 18.9.1985 that the appellant had purchased

the said plot no. 1368 on 17.8.1979, which is adjoining

the respondent’s plot no. 1366. The appellant

contested the case denying the material incidents and

inter alia contending that the application made under

Section 8 of the Act was barred by limitation. The

Munsif Court condoned the delay on the ground that the

respondent had no knowledge of the sale till the date

of application and that there was sufficient cause for

not making the application within time but dismissed

the application on merits finding that on the date of

transfer, the respondent was not possessing the longest

common boundary. The appeal filed by the respondent

against the said order of the Munsif Court was

dismissed by the learned Addl. District Judge both on

the ground of limitation as well as on merits. In

other words, on merits, the learned Addl. District

Judge concurred with the finding recorded by the Munsif

Court and reversed its finding on the limitation

holding that the application filed by the respondent

was barred by time. The respondent approached the High

Court by filing a revision petition under Section 115

of the Code of Civil Procedure. The High Court held

that the period under Article 137 in the Schedule of

the Limitation Act, 1963 (for short ‘Limitation Act’)

was applicable to the case. In that view, the High

Court upheld the order passed by the Munsif Court

condoning the delay for making the application. The

High Court also held that the respondent was entitled

to get the order of pre-emption on the basis of

purchase in 1966 in view of the amendment of 1981. In

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the result, the High Court set aside the order of the

Addl. District Judge and remitted the case to the first

appellate court (District Judge) to decide on merits.

Hence, this appeal.

CIVIL APPEAL NO. 444 OF 2000

The appellant made an application to enforce right

of pre-emption under Section 8 of the Act as a

contiguous land owner in the Munsif Court stating that

he came to know about the sale deed of the land in

question on 18.2.1989. She immediately rushed to the

office of the sub-Registrar and on search came to know

of the existence of the sale deed dated 27.5.1983. The

application under Section 8 was filed within time from

the date of knowledge; an application under Section 5

of the Limitation Act also was filed for condonation of

delay in filing the application under Section 8 of the

Act; the Munsif Court dismissed the application filed

under Section 5 of the Limitation Act; consequently

rejected the application filed under Section 8 of the

Act. Aggrieved by the said order of the Munsif Court,

the appellant filed Civil Revision No. 56 of 1991 in

the District Court under Section 115-A of the Code of

Civil Procedure; the learned District Judge condoned

the delay in making application under Section 8 of the

Act applying Article 137 of the Limitation Act, set

aside the order of the Munsif Court and remitted the

case to the Munsif Court to decide the ap