SANKAR GHOSH Vs. MINOR SRIMANTA GHOSH
LAWS(CAL)-2003-9-70
HIGH COURT OF CALCUTTA
Decided on September 11,2003

SANKAR GHOSH Appellant
VERSUS
MINOR SRIMANTA GHOSH Respondents


Referred Judgements :-

VISHWAMBHAR AND ORS. V. LAXMINARAYANA (DEAD) THROUGH LRS. AND ANR. [REFERRED TO]
RAGU THILAK D. JOHN V. S. RAYAPPAN AND ORS. [REFERRED TO]
MRIDULA GHOSH AND ANR V. MITRA AND GHOSH PUBLISHERS COMPANY PVT. LTD. AND ORS. [REFERRED TO]
K RAHEJA CONSTRUCTIONS LIMITED VS. ALLIANCE MINISTRIES [REFERRED TO]
RADHIKA DEVI VS. BAJRANGI SINGH [REFERRED TO]
I T C LIMITED VS. M M P LINES PVT LTD [REFERRED TO]
TARAK DAS GHOSH VS. SUNIL KUMAR GHOSH [REFERRED TO]


JUDGEMENT

- (1.)This application under Article 227 of the Constitution of India has been filed by the plaintiff of Title Suit No, 168 of 1999, a pre-emption suit, under Section 22 of the Hindu Succession Act whereby and whereunder prayer of the plaintiff to amend the plaint for incorporation of plots of agricultural lands as were sold by the defendant No. 1 of the suit in favour of the defendant Nos. 1 and 2 by registered sale of deed dated 10th November, 1998, was rejected on the ground that plaintiff did not file the application of amendment within one year from the date of knowledge of such transfer and further on the ground that hearing of the suit has already reached to the stage of argument on completion of the evidence of both sides. This application has been resisted by the opposite parties, the purchasers of the plots.
(2.)Learned Advocate for the plaintiff-petitioner herein has strongly contended that under Section 22 of Hindu Succession Act, an application for pre-emption will lie within one year from the date of possession of the properties concerned, which is the subject matter of the suit of pre-emption in terms of Article 97 of the Limitation Act and in that view of the matter, since the defendants-opposite parties 1 and 2 as yet not has taken the possession of the said agricultural lands, which is the subject matter of the amendment application, the application was not time barred and to that effect the finding of the learned Court below was erroneous. Learned Advocate for he petitioner further submits that the fact as has been brought by way of supplementary affidavit of opposition, filed by the opposite parties contending that the plots, which are subject matter of amendment application were already under possession of the defendants-opposite parties, which was admitted by the plaintiff when he moved first. Misc. Case No. 5 of 1999 under Section 8 of the West Bengal Land Reforms Act, is not the real State of affairs as in that Misc. Case as subsequently was withdrawn due to non-maintainability under Section 8 of the West Bengal Land Reforms Act, the plaintiff of the suit never admitted the possession of defendant-opposite parties in respect of the plots covered under the application of amendment. Learned Advocate for the petitioner further argued that even if it is assumed that in view of the rival contentions of the parties, one is saying that the concerned plots of the said application is under their possession and other is denying, same accordingly has become a disputed question of facts which is to be resolved at the final hearing of the trial by taking evidence after allowing the amendment application. This proposition of law as thrashed by the learned Advocate for the petitioner is based on the judgment delivered by the Apex Court in the case Ragu Thilak D. John v. S. Rayappan & Ors., reported in 2001 (2) SCC 472. It has been further argued by the learned Advocate for the petitioner that amendment application should not be rejected by the Court of law when the other side could be suitably compensated.
(3.)On the other hand, learned Advocate for the opposite parties of this application who are the defendants of the suit has countered the argument of the learned Advocate for the petitioner by contending, inter alia, that not only the admission of possession as made in the application under Section 8 of the Land Reforms Act registered as Misc. Case No.5 of 1999 but also in the written statement as filed by the opposite parties, such fact of possession has been disclosed by filing the same on 2nd March, 2000 whereas amendment application was filed by the plaintiff-petitioner on 5th October, 2002, which is far beyond the period of the one year from the date of knowledge of such possession over the concerned plots by the opposite parties through the written statement as filed. Learned Advocate for the opposite parties relied upon a judgment of this Court passed in the case I.T.C. Limited v. M.M.P. Lines Pvt. Ltd. & Ors., reported in AIR 1978 Calcutta 298 wherein the Court held that the period of limitation will run from the date of knowledge of certain facts through the written statement as filed. Having regard to such, it is the contention of the learned Advocate for the opposite parties that in the instant case, amendment application accordingly was hopelessly time barred as the plaintiff-petitioner had the knowledge of possession of the concerned agricultural plots, which are the subject matter of amendment application even from the written statement on 2nd March, 2000. The application for amendment accordingly was required to be filed within one year in terms of Article 97 of the Limitation Act, which expired on 2nd March, 2001. Learned Advocate for the opposite parties also relied upon two judgments of the Apex Court passed in the case K. Raheja Construction Ltd. v.Alliance Ministries & Ors. reported in AIR 1995 SC 1768 and Radhika Devi v. Bajrangi Singh & Ors., reported in AIR 1996 SC 2358, which subsequently has been followed and relied in the case Mridula Ghosh & Anr. v. Mitra & Ghosh Publishers Company Pvt. Ltd. & Ors., reported in 2002 (4) ICC 174, to contend that since the plaintiff-petitioner did not file the application for amendment within the period of limitation in terms of Article 97 of the Limitation Act, the opposite parties accordingly have accrued a right which cannot be taken away by the Court of law. Learned Advocate for the opposite parties further relied upon a latest judgment of the Apex Court passed in the case Vishwambhar & Ors. v. Laxminarayana (Dead) Through L.Rs. & Anr., reported in 2001 WBLR (SC) 525 and more exactly paras 9 and 10 thereof, to contend that the amendment application, which is barred by limitation, cannot be allowed.
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