A co-sharer of an adjoining land can apply for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955, even if they do not have a common boundary with the portion of the land sought to be transferred.

( 1 ) THIS application under Article 227 of the Constitution is directed against the judgment and order dated 16th January, 2002 passed in Misc. Appeal No. 11 of 2000 (Abdul Gofur vs. Bahastulla Sk. ). By the impugned judgment the Misc. appeal was allowed and the order of the learned Civil judge, Junior Division which was under challenge in the misc. appeal was set aside.

( 2 ) THE opposite parties filed an application under section 8 of the west Bengal Land Reforms Act, 1955 (hereinafter referred to as the said act), exercising his right of pre-emption against the petitioner. By an order dated 18th January, 2000 passed by the learned Civil Judge, Junior division, Berhampur, Murshidabad, the said application under section 8 being Misc. Case No. 16 of 1994 was rejected. Before the Lower Appellate court the question arose as to whether the opposite party the could maintain an application under section 8 for pre-emption on the ground of possessing land adjoining the plot of land which is the subject-matter of dispute.

( 3 ) AS far as, finding of fact is concerned there is not dispute that the land belonging to the petitioner are comprised in plot Nos. 765, 772, 773, 776 and 779 measuring about 4 decimal of land are all adjoining land. It is also an undisputed finding of fact that the opposite party is the owner in respect of certain portions of land in plot Nos. 773 and 774.

( 4 ) THE petitioner was stated to be a stranger purchaser and such claim of the opposite party has been accepted as a finding of fact by the Lower appellate Court. These facts are not assailed before me. The only point on which this application is sought to be pressed on behalf of the petitioner is that the opposite party being a co-owner of a part or portion of the land as mentioned above and as there has been no partition amongst his co-owners, he cannot claim to be exclusive owner of the land in question and therefore, he cannot maintain an application under section 8 of the West Bengal Land reforms Act.

( 5 ) BEFORE dealing with the law in the subject and the various decisions relied upon by the parties the scope and purport of section 8 is required to be understood in the correct perspective. For the sake of convenience section 8 is set out hercunder :

"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 co-sharer 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 possessing 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 mentioned in section 14m on deposit of the consideration money together with a further sum of ten per cent of that amount : provided that if the bargadar in the plot of land, a co-sharer or a raiyat in a plot of land and a raiyat possessing land adjoining such plot of land apply for such transfer, the bargadar shall have the prior right to have such portion or share of the plot of land transferred to him, and in such a case, the deposit made by other shall be refunded to them : provided further that where the bargadar does not apply for such transfer and a co-sharer of a raiyat in a plot of land and a raiyat possessing land adjoining such plot of land both apply for such transfer, the former shall have the prior right to have such portion or share of the plot of land transferred to him, and in such a case, the deposit made by the latter shall be refunded to him : provided also that as amongst raiyats possessing lands adjoining such plot of land preference shall be given to the raiyat having this longest common bou