Dismissed

Abhijit Agarwala @ Abhijit Agarwal v. Md. Badiruddin

Calcutta HC16 Aug 2021CO/1033/2017

Case brief

AI extract

What is this about?

This single-judge order dismisses a Civil Origin Special Appeal challenging the dismissal of a pre-emption application. The High Court affirmed the lower courts' finding that the application was time-barred and void due to prior partition of the property, holding within jurisdiction without interfering with factual findings.

What did the court decide?

C.O. No. 1033 of 2017 dismissed, affirming orders of courts below.

Abhijit Agarwala @ Abhijit Agarwal Vs Md. Badiruddin — Partition | Calcutta HC (2021)

¶1

16.08.2021 mb

¶2

In the High Court at Calcutta Civil Jurisdiction Appellate Side

¶3

C.O. No. 1033 of 2017 (Via video conference)

¶4

Abhijit Agarwala alias Abhijit Agarwal -Vs.Md. Badiruddin

¶5

Dr. Indrajit Mandal, Ms. Priyanka Jana

¶6

…for the petitioner

¶7

Ms. Shila Sarkar, Mr. Tanmoy Mukherjee

¶8

… for the opposite party

¶9

Affidavit-of-service filed in Court today be kept on record.

¶10

Upon hearing learned counsel for both the parties, it appears that the trial court dismissed a pre-emption application on the ground of limitation; whereas the appellate court affirmed such decision on a different ground, that the preemption application did not lie on the ground of co-sharership, in view of partition having already been effected by virtue of a partition decree passed by a competent civil court.

¶11

¶12

Learned counsel appearing for the petitioner places reliance on a Division Bench judgment of this Court, reported at 2017(3) CHN (CAL) 678 (Nurul Islam vs. Estarun Bibi ). It was categorically held in the said judgment, that in case of a nonnotified co-sharer, the right to enforce preemption is governed by Article 97 of the Limitation Act, 1963. The third column of Article 97 of the 1963 Act clearly stipulates that the time from which the limitation period begins to run is, when the purchaser comes under the sale sought to be impeached, physical possession of the whole or part of the property sold, or, where the subjectmatter of the sale does not admit of physical possession of the whole or part of the property, when the instrument of sale is registered.

¶13

However, there is not an iota of pleading in the pre-emption application itself as to when the possession was taken by the pre-emptee.

¶14

As such, there was no irregularity for the trial court deciding the date of registration to be the starting point of limitation.

¶15

In the present case, the deed-in-question was executed and registered on January 07, 2008, whereas the application under Section 8 of the West Bengal Land Reforms Act, 1955 was

¶16

¶17

presented on August 03, 2009, which is beyond one year from the date of registration of the documents sought to be preempted.

¶18

In such view of the matter, more so, since the appellate court, being the last court of facts, specifically found on the materials-on-record, that a partition decree was passed in respect of the subject-matter of the deed, this Court is not inclined to interfere with the judgment of affirmance passed by both the courts below, merely because a different view may have been possible on the materials-on-record.

¶19

Both the courts below acted well within their jurisdiction in applying the doctrine of preponderance of probability to arrive at the conclusion that the pre-emption application was time barred and that the ground of co-sharership was not tenable in view of partition having been effected in terms of Section 14 of the 1955 Act.

¶20

Accordingly, C.O. No. 1033 of 2017 is dismissed on contest, thereby affirming the orders of both the courts below, which have been impugned herein.

¶21

There will be no order as to costs.

¶22

Urgent photostat certified copies of this order, if applied for, be made available to the

¶23

¶24

parties upon compliance of all necessary

¶25

formalities.

¶26

(Sabyasachi Bhattacharyya, J.)

Abhijit Agarwala @ Abhijit Agarwal v. Md. Badiruddin

Case brief

What is this about?

What did the court decide?

Abhijit Agarwala @ Abhijit Agarwal v. Md. Badiruddin

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Atanu Ghosh Vs Prabhash Chandra Dey & Ors.

K.M.C. Vs Kamalesh Chowdhury

K.M.C Vs Kamalesh Chowdhury

Abdul Alim Molla & Ors. Vs Nazrul Molla & Ors.

M/S Ks Property Service by Its Partner Mrityunjoy Sarkar and Ors. Vs Sajal Kanti Dey and Ors.

Saibal Basu Vs Sudeepta Basu