The right of pre-emption under section 8 of the West Bengal Land Reforms Act is available only to co-sharers in a plot of land, and the registration of a sale deed does not raise a presumption of due service of notice under section 5 of the Act.

HARISH TANDON, J.:

1. This revisional application is directed against the judgment and order dated 12.2.2009 passed by the learned Judge, Special Court (EC Act)-cum Additional District Judge, Hooghly in Misc. Appeal No. 25 of 2006 reversing those judgment and order dated 27.2.2006 passed by the Civil Judge (Jr. Division), Hooghly in Misc. Case No. 33 of 2004.

2. This revisional application is filed at the behest of the pre-emptor challenging an order of the first appellate court by which his application for pre-emption under section 8 of the West Bengal Land Reforms Act is rejected.

3. Before dealing with the points canvassed before this court short facts are necessary to be recorded.

4. By a deed of sale executed on 10.8.1999 the opposite party no. 2 sold the “Ka” schedule property which is the tank to the opposite party no. 1 for a consideration of Rs. 1,50,000/- and the said sale deed was duly registered on 22.9.1999. The application under section 8 of the West Bengal Land Reforms Act was filed by the petitioner on 19.8.2000. The petitioner asserted the right of pre-emption on the ground that the entire plot being plot no. 633 was comprised of 224 satak of which 144 satak is a tank and the rest 80 satak is an embankment, previously, the opposite party no. 2 sold 26 satak of embankment land comprised in plot no. 633 to the petitioners and it is alleged that by virtue thereof the petitioners became the co-sharer in respect of the said plot. It is further stated that the pre-emptee/opposite party no. 1 has inflated the consideration money in the said sale deed whereas the actual cost of the land sold to the opposite party no. 1 being “Ka” schedule property is Rs. 75,000/- and deposited the said sum of Rs. 75,000/- together with the statutory compensation of 10% in the proceeding.

5. The opposite party no. 1 contested the said proceeding by contending that prior to the purchase of the “Ka” schedule property the petitioner was offered to purchase the same and on refusal the opposite party no. 2 sold the property. It is further stated that the petitioner was given an oral notice of such transfer and as such the said pre-emption proceeding having instituted beyond the prescribed period is not maintainable. It is stated that the petitioners are neither the co-sharers nor the owner of the adjoining land as the tank is not a land within the meaning of the West Bengal Land Reforms Act.

6. The trial court found that the petitioners are the co-sharers in respect of the plot no. 633 and no notice under section 5 of the West Bengal Land Reforms Act was served upon the petitioner and as such the proceeding initiated within a year from the date of completion of the registration is maintainable under Article 137 of the Limitation Act. It is further held that the tank is included within the definition of a “land” assigned in section 2 (7) of the West Bengal Land Reforms Act and in absence of any deed or the contingencies enumerated under section 14 of the said Act it cannot be said that there has been a valid partition. However, the trial court rejected the contention of the petitioner that the actual price of the land being “Ka” schedule property is Rs. 75,000/- and not Rs. 1,50,000/- as has been shown in the sale deed and thereafter directed the petitioners to pay the balance consideration money together with the statutory compensation in the court.

7. The pre-emptee being the opposite party no. 1 assailed the said order under section 9 of the said Act before the District Judge, Hooghly who reversed the said judgment and order by which an application for preemption was allowed. It is held by the court below that under section 5 of the said Act registration shall not be completed unless a notice together with prescribed fees and the other particulars are furnished which necessarily raised presumption that in the event the registration is complete, the notice must be deemed to have been served upon the persons who has a semblance of r