TMI Blog2004 (3) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at an application made under Section 8 of the Act is a suit; hence Section 5 of the Limitation Act does not apply in making an application under Section 8 of the Act; Schedule to the Limitation Act contains three divisions, relating to suits, appeals and applications respectively; Article 97 of the Limitation Act relates to enforcement of right of pre-emption and there is no reference to pre-emption suit anywhere else in the Schedule; Under Article 97, the period of limitation prescribed is one year. As per Section 29(2) of the Limitation Act, the period of limitation prescribed under any special or local law for any suit, appeal or application is different from the period prescribed in the Schedule of the Limitation Act. Section 3 of the Limitation Act shall apply as if such period is the period prescribed by the Schedule of the Limitation Act and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. The learned senior counsel submitted that under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , basically the only short question that arises for consideration is whether Section 5 of the Limitation Act is applicable to an application made under Section 8 of the Act having regard to Section 29(2) of the Limitation Act. Ultimate result in these appeals depends on the answer to this question. Before finding an answer to the question, it is both useful and necessary to reproduce relevant portions of the provisions of the Act and Limitation Act: - West Bengal Land Reforms Act, 1955 8. Right of purchase by co-sharer or contiguous tenant (1) If a portion or share of a plot of land of a raiyat is transferred to any person other than a cosharer of a raiyat in the plot of land, the bargadar in the plot of land may, within three months of the date of such transfer, or any co-sharer of a raiyat in the plot of land may, within three months of the service of the notice given under sub-section (5) of Section 5, or any raiyat possession land adjoining such plot of land, may, within four months of the date of such transfer, apply to the Munsif having territorial jurisdiction for transfer of the said portion or share of the plot of land to him, subject to the limit menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Bar of limitation (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. 5. Extension of prescribed period in certain cases - Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation-The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section. 8. Special exceptions Nothing in Section 6 or in Section 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and looking to the provisions of the Limitation Act, as stated above, it appears to us that when one applies for enforcement of rights of preemption under Section 8 of the Act, the proceedings initiated are in the nature of a suit. The words application and suit have been defined in Section 2(b) and 2(l) of the Limitation Act. Application includes a petition but suit does not include an appeal or an application. The Division Bench of the Calcutta in Serish Maji (supra), after elaborate consideration, referring to various decisions and on analysis of different provisions, in paras 25 to 50 of the judgment has concluded that a proceeding initiated by an application of Section 8 is to be construed as a suit for the purpose of the Limitation Act. We have good reason to approve the said view. This being the position, Section 5 of the Limitation Act is not attracted to the proceedings initiated under Section 8 of the Act. The right conferred under Section 8 is a statutory right. Even otherwise, in our view, the position as regards to applicability of Section 5 of the Limitation Act to an application under Section 8 of the Act does not get altered. As alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 5 to the Limitation Act having regard to the nature of rights of pre-emption which is considered a weak right. In a recent decision of this Court in Mattoo Devi (Smt.) vs. Damodar Lal (deceased) by Lrs. Ors. [(2001) 6 SCC 330] in para 8 it is stated thus:- 8. On the basis of the aforesaid, Subba Rao, J. with his usual felicity of expression observed that the general law of pre-emption does not recognise any right to claim a share in the property sold when there are rival claimants and pre-emption is a right to acquire the whole of the property sold in preference to other persons. The learned Judge further relied upon the decision in the case of Gobind Dayal v. Inayatullah (ILR (1885) 7 All 775 : (1885) 5 AWN 228 (FB)) as also the decision of the Lahore High Court in the case of Mool Chand v. Ganga Jal (ILR (1930) 11 Lah 258 (FB) : AIR 1930 Lah 356) and summarised the law pertaining to the right of pre-emption in the manner as below : (1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 137 of the Limitation Act. An important departure is made in Section 29, subsection (2) of Limitation Act of 1963. Under the Indian Limitation Act, 1908 Section 29(2)(b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the application of Section 5 of the Limitation Act was specifically and in clear terms excluded, but under Section 29(2) of the present Limitation Act Section 5 shall apply in case of special or local law to the extent to which they are not expressly excluded by such special or local law. In other words, application of Section 5 of the Limitation Act stands excluded only when it is expressly excluded by the special or local law. The emphasis of the argument by the learned counsel, who argued for the proposition that Section 5 of the Limitation Act is applicable to an application made for enforcement of rights of pre-emption under Section 8 of the Act was on the ground that the Act has not expressly excluded the application of Section 5 of the Limitation Act. In Hukumdev Narain Yadav vs. Lalit Narain Mishra [(1974) 2 SCC 133], a bench of three learned Judges of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Representation of People Act and Section 29(2) of the Limitation Act, took a view that the controversy was practically concluded on the question of applicability of Section 5 of the Limitation Act by the decision of this Court in the case of Hukumdev Narain Yadav (supra). Para 8 of the said judgment reads thus:- 8. In H.N.Yadav vs. L.N. Mishra, this Court held that the words expressly excluded occurring in Section 29(2) of the Limitation Act do not mean that there must necessarily be express reference in the special or local law to the specific provisions of the Limitation Act, the operation of which is sought to be excluded. It was held that if on an examination of the relevant provisions of the Special Act, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred by the Limitation Act cannot be called in aid to supplement the provisions of the Special Act. That too was a case arising under the Representation of People Act and the question was whether Section 5 of the Limitation Act is applicable to the filing of the election petition. The test to determine whether the provisions of the Limitation Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extension or application of Section 5 of the Limitation Act. When in the same statute in respect of various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefit of Section 5 of the Limitation Act and such provision is not made to an application to be made under Section 8 of the Act, it obviously and necessarily follows that the legislature consciously excluded the application of Section 5 of the Limitation Act. Considering the scheme of the Act being self-contained code in dealing with the matters arising under Section 8 of the Act and in the light of the aforementioned decisions of this Court in the case of Hukumdev Narain Yadav, Anwari Basavaraj Patil and M/s. Parson Tools (supra), it should be construed that there has been exclusion of application of Section 5 of the Limitation Act to an application under Section 8 of the Act. In view of what is stated above, the nonapplicability of Section 5 of the Limitation Act to the proceedings under Section 8 of the Act is certain and sufficiently clear. Section 29(2) of the Limitation Act as to the express exclusion of Section 5 of the Limitation Act and the specific period of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Calcutta High Court in Serish Maji (supra), referring to the observation made in Mangu Ram (supra) that mere provision of a period of limitation in howsoever preemptory or imperative language is not sufficient to displace the applicability of Section 5 , in para 11 of the judgment, has stated thus:- 11. The observation does not help the applicant. It assumes that an imperative provision coupled with other factors might be sufficient to exclude the applicability of the Limitation Act. Ultimately it would be a question of interpretation of the special or local law in question. Further the decision in Hukumdev Narain Yadav (supra) was not brought to the notice of this Court when Mangu Ram case (supra) was decided. In the light of the three-Judge Bench decision of this Court in Hukumdev Narain Yadav we do not find any good reason to take a different view. The case of Mukri Gopalan vs. Cheppilat Puthanpurayil Aboobacker [(1995) 5 SCC 5] cited in support of the submission that Section 5 of the Limitation Act can be applied to a proceeding under Section 8 of the Act also does not support the submission for the reasons more than one. The short question that ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also was rendered by two learned Judges of this Court. Thus, in our view, this case of Mukri Gopalan (supra) does not help to say that Section 5 of the Limitation Act is applicable to proceedings under Section 8 of the Act. Having regard to all aspects we answer the question set out above in the negative. Once it is held that the benefit of Section 5 of the Limitation Act is not available to the proceedings under Section 8 of the Act and the applications filed under Section 8 of the Act are to be dismissed on that ground, it is unnecessary to go into the merits of these appeals on other issues. We conclude that Section 5 of the Limitation Act cannot be pressed into service in aid of a belated application made under Section 8 of the Act seeking condonation of delay. The right of pre-emption conferred under Section 8 is a statutory right besides being weak, it has to be exercised strictly in terms of the said Section and consideration of equity has no place. On the facts found in these appeals, applications under Section 8 were not made within four months from the date of transfer but they were made four years and six years after the date of transfer respectively which were hop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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