- (1.) THE instant application under Article 227 of the Constitution of India is directed against the judgment and order dated 19.11.2009 passed in Misc. Appeal No.7 of 2009 by the learned Additional District Judge, 1st Track, 4th Court, Tamluk, affirming the judgment and order No.45 dated 13.3.2008 passed in J. Misc. Case No.40 of 2002 by the learned Civil Judge (Junior Division), 1st Court, Tamluk.
(2.) UPON hearing the learned Counsel for both the parties and also after going through the materials-on-record including the order No.45 dated 13.3.2008 as also the impugned order dated 19.11.2009 it could be detected that the petitioners by filing an application under Sections 8 and 9 of the West Bengal Land Reforms Act, 1955 prayed for preemption of the case land comprised in Plot Nos. 1429 and 1426 as co-sharers, in the Court of Civil Judge (Junior Division), 1st Court, Tamluk. It would appear that the learned Civil Judge (Junior Division), 1st Court, Tamluk after hearing the learned Counsel for both sides and also considering the materials-on-record arrived at a finding that the case was barred by limitation and thus he was pleased to dismiss the case by passing the order dated 13.3.2008. The petitioners being aggrieved preferred an appeal before the learned Additional District Judge, 1st Track, 4th Court challenging the said order dated 13.3.2008 passed by the learned Trial Court, but the learned First Appellate Court having heard the learned Counsel for the parties concerned and also giving due consideration to the materials-on-record supported the finding arrived at by the learned Civil Judge (Junior Division), 1st Court, Tamluk and dismissed the appeal upon a finding that the pre-emption application was barred by limitation. Thereafter, the petitioners being aggrieved by and dissatisfied with the impugned order dated 19.11.2009 passed by the learned Additional District Judge, 1st Track, 4th Court, Tamluk have come up before this Court praying for setting aside the impugned order dated 19.11.2009 and also for obtaining an order of pre-emption. Mr . Basudeb Gayen, learned Counsel appearing for the petitioners while making submission draws this Court 's attention to the contents of the documents concerning service of notice under Certificate of Posting (X series) as also other materials including the finding of the learned Trial Court as well as the learned First Appellate Court and emphatically urges that both the Courts below ignoring the specific provision of law as laid down in Section 5(5) of the West Bengal Land Reforms Act, 1955, arrived at a wrong finding opining thereby that the petitioners were duly notified about the transfer of the case land and thus failed to apply for pre-emption of the suit property within the stipulated period of limitation and ultimately passed the impugned order. In support of his contention, learned Counsel appearing for the petitioners relies upon a ruling reported in 1982 (1) CHN 240 Smt. Gita Nandi Vs. Satya Kinkar Patra and Ors. and strongly contends that in view of the observation made in Para 7 of the said ruling learned Court below ought to have allowed the pre-emption application inasmuch as the petitioners filed the pre-emption application within the period of 3 years as non-notified co-sharers. He also submits that the finding arrived at by the learned Courts below is not based on legal fact and merit and the same is liable to be set aside and the petitioners should be allowed an order of pre-emption as prayed for.
(3.) ON the other hand, Mr. M.R. Karmakar, learned Counsel appearing for the opposite party argues and submits that the concurrent findings of both the Courts below cannot be called in question inasmuch as the petitioners despite their knowledge about the transfer of the suit property failed to apply for preemption of the same in accordance with the provision laid down in Section 8 of the Land Reforms Act. He further urges that the order impugned cannot be said to be untenable in the eye and estimation of law and as such the same deserves no interference by any Court of law. In support of his contention, learned Counsel for the opposite party relies upon a ruling reported in (2004) 4 Supreme Court Cases 252 Gopal Sardar Vs. Karuna Sardar, (2001) 7 Supreme Court Cases 197 Bibi Salma Khatoon Vs. State of Bihar & Ors. as also a copy of order dated 19th April, 2010 passed by the Hon 'ble Apex Court in Civil Appeal No.3494 of 2010, arising out of Special Leave Petition (Civil) No.23135/2007 Sanjay Kumar Vaish & Ors Vs. Rajendra Kumar Agarwal & Ors. and emphatically contends that the petitioners in spite of being made aware about the transfer of the subject land did not file the preemption application within the prescribed period as admissible under the law and as such the order impugned could be said to be quite justifiable. It would be explicit from the submission made by the learned Counsel for the petitioners that his clients happen to be the non-notified co-sharers in respect of the subject land and as such judicial Misc. Case No.40 of 2002 ought to have been held tenable under the law simply because the petitioners filed the said case as non-notified co-sharers within the stipulated period of 3 years as per provision laid down in Section 137 of the Indian Limitation Act read with the provisions contained in Section 5(5) of the West Bengal Land Reforms Act, 1955. Section 5(5) of the West Bengal Land Reforms Act reads as follows: "The Court, the Revenue Officer or the registering officer, as the case may be, shall transmit the notice to the authority referred to in subclause (i) of Clause (b) of sub-section (1) who shall serve the notices on the co-sharers referred to in sub-section (4) by registered post and shall cause copies of the notice to be affixed on the (plot of land) and in the Court house or in the office of the Revenue Officer, or of the registering officer, as the case may be. Explanation. �In this section � (a) "transferor ", [ "transferee "], "purchaser " and "mortgagee " include their successors-in-interest, and (b) "transfer " does not include simple or usufructuary mortgage or mortgage by deposit of title deeds. " Sub-Clause (i) of Clause (b) of Sub-section (1) as also Sub-section (4) of Section 5 of the West Bengal Land Reforms Act, 1955 reads as follows: (i) a notice giving the particulars of the transfer in the prescribed form for transmission of the prescribed authority; (4) If the transfer of a portion or share of such a [plot of land] be one to which the provisions of section 8 apply, there shall be filed by the transferor or transferee notices giving particulars of the transfer in the prescribed form together with the process fees prescribed for the service thereof on all the co-sharers of the said [plot of land] who are not parties to the transfer and for affixing a copy thereof in the office of the registering officer of the Court house or the office of the copy on the [plot of land].;