Arindam Sinha, J. - (1.) THIS application under Article 227 of the Constitution of India is directed against order dated 19th March, 2013 made by the Additional District Judge, 4th Court at Alipore in Misc. Appeal no. 41 of 2004 by which the appeal of the petitioner/pre -emptee was dismissed.
(2.) THE opposite party/pre -emptor had made an application for pre -emption stating, inter alia, the petitioner/pre -emptee obtained transfer of the suit property by registered sale deed dated 14th October, 1988. The said opposite party alleged he came to know about the transfer only when the petitioner/pre -emptee came to take possession of the suit property on 5th September, 1989. Mr. Banerjee, learned Senior Advocate appearing on behalf of the petitioner submitted it appears on the face of the said application the same was barred by limitation. Relying on Section 3 of the Limitation Act, 1963 he submitted the application ought to have been dismissed by the learned trial court or otherwise by the learned appellate court. In support of such submission, he relied on a decision reported in : (2008) 14 SCC 445 (Noharlal Verma Vs. District Co -operative Central Bank Limited, Jagdalpur) in particular paragraph 33 wherein the Hon'ble Supreme Court had held, inter alia, even in absence of such plea by the defendant, respondent or opponent, the court or authority must dismiss such suit, appeal or application, if it is satisfied that the suit, appeal, or application is barred by limitation. In making such submission, Mr. Banerjee conceded the point was not taken or urged before the learned courts below.
(3.) MR . Banerjee, then submitted even according to the opposite party/pre -emptor he is a co -sharer and not the exclusive owner of the plot which lies to the east of the case plot. Section 8 of the West Bengal Land Reforms Act, 1955 provides that any raiyat possessing land adjoining such plot of land may within four months of the date of transfer apply for pre -emption.;