The right of pre-emption acquired by a co-sharer under Section 8(2) of the West Bengal Land Reforms Act, 1955, cannot be defeated by a subsequent transfer.

This application is directed against the appellate order dated the 31st July, 1936 passed by the learned Additional District Judge, 1st Court, Midnapore, in Misc. Appeal No. 83 of 1985. reversing the order dated the 13th July, 1985, passed by the learned Munsif, Danton, in J. Misc. Case No. 15 of 1981 arising out of an application under s. 8 of the West Bengal Land Reforms Act, 1955.

2. The instant application arises out of an application by the petitioner under s 8 of the West Bengal Land Reforms Act, hereinafter referred to as the said Act, for pre emption of the land which was transferred by the opposite party no. 6 in favour of the opposite party nos. 1 to 5, by a registered sale deed dated 26th November, 1980. The said application was filed in the Court of the learned Munsif, Danton, and both the transferor and the transferees were made parties therein, and the case was registered as J. Misc, case no. 15 of 1981.

3. The petitioner's case in short is that his father and the opposite party no.6 were the owners of plot no. 185 of mouza Saradabarh, in respect of 3/4th share and after the petitioner's father's death, the mother of the petitioner and the sister of the petitioner, the opposite party no. 6 and the petitioner, equally inherited the petitioners father's share in the property. Subsequently, the petitioner no. 6 and the petitioner jointly purchased the share of the mother and sister and thereby became the joint owners of the 3/4th share in the land in dispute. It is the further case of the petitioner that, thereafter the opposite party no. 6 and the petitioner also purchased the remaining 1/4th share of the disputed land from one Bhutnath Patra and others and pursuant to such sale the opposite party no. 6 and the petitioner became owners of the entire 16 Annas share in the said land, and, as such, both the petitioner and the opposite party no. 6 became co-sharers in respect of the land comprised in plot no 185, measuring 37 decimal.

4. By a sale deed dated the 19th August, 1978, the opposite party no. 6 transferred 18.1/2 decimals of land out of the aforesaid plot to the opposite party nos. 1 to 5 herein, without serving any notice upon the petitioner, who was a co-sharer in the said plot. After coming to know of the said transfer, the petitioner obtained the certified copy of the sale deed and filed the abovementioned J. Misc. case on 27th February, 1981. In the said application under s.8 of the aforesaid Act the petitioner prayed for pre-emption in -respect of the sale of the said 18.1/2 decimals of land by the opposite party no. 6 in favour of the opposite party nos. 1 to 5.

5. The opposite Party nos. 1 to 5 herein appeared in the said proceedings and filed a written objection alleging that the transfer in question was not an out and out sale bat a loan transaction. Although the sale deed was executed on 19th August, 1978, on that very same date, an agreement for re-conveyance was also executed by and between the parties. The loan was re-paid on 27th January, 1981, and a deed of re-conveyance of the said property was executed by the opposite party no. 1 to 5 in favour of the opposite party no. 6. The opposite party no. 6 who was subsequently added as a party in the proceedings, also filed a written objection supporting the case made out by the opposite party nos. 1 to 5. The petitioner's application for preemption under s. 8)) of the said Act was heard by the learned Munsif, Danton and by his order dated 10.7.85, the learned Munsif was pleaded to allow the petitioner's application on contest with cost. While deciding the said application, the learned Munsif was pleased to hold that the petitioner was a co-sharer in respect of the plot in question and was, therefore, entitled to pre-empt the sale effected by the opposite party no. 6 in favour of the opposite parties nos. 1 to 5 herein. The learned Munsif also considered the case sought to be made out by the opposite parties herein that the deed executed by the opp