A co-owner of an adjoining plot is entitled to claim pre-emption, even if the transferred portion is not directly adjoining the pre-emptor's plot. The right to pre-emption cannot be waived, and the sale of the suit plot to a relative does not bar the right to pre-emption under the law.

Subrata Talukdar, J.

This petition under Article 227 of the Constitution of India being CO 2159 of 2008 challenges the judgment and order dated 15th May, 2008 passed in Misc. Appeal No.44 of 2007 by the Learned 2nd Additional District Court, West Midnapore dismissing the appeal and thereby affirming the judgment and order dated 9th April, 2007 passed in Misc. Case no.10 of 2004 by the Learned 3rd Civil Court (Junior Division), Midnapore rejecting the claim of the petitioner for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955 (for short the WBLR Act).

2. The pre-emptor is the petitioner before this Court. Pursuant to the order dated 22nd March, 2012 passed by the Learned Registrar (Administration), on the death of the sole pre-emptor petitioner his legal heirs have been substituted as petitioners in the present CO 2159 of 2008.

3. The opposite party no.1 is the Purchaser of the suit plot and the Opposite Party (for short OP) no.2 is the Vendor of the suit plot.

The case of the pre-emptor, in short is as follows:-

(a) That the petitioner-pre-emptor filed J. Misc. Case no.10 of 2004 claiming pre-emption under Sections 8 and 9 of the WBLR Act in respect of the suit plot no.134;

(b) In the pre-emption petition it is contended that the suit plot no.134 measuring 3.90 acres of Mouza - Foolgeria in L.R. Khatian no.-103 originally belonged to one Rashbehari Adhikary, father of the OP 2-Vendor. The said Rashbehari Adhikary gifted 0.93 acres on the North-East corner of the said plot out of 3.90 acres to his son, the OP 2-Vendor;

(c) Thereafter the OP 2-Vendor sold out the suit plot to the OP 1- Purchaser for a consideration of Rs. 55, 000 and a Registered Sale Deed was executed on 30th January, 2004. Registration of the suit plot was completed on 10th February, 2004;

(d) The OPs contested the pre-emption matter by filing separate written objection. The OPs have contended that in the aforesaid Sale Deed 0.1 decimals of land having a common boundary wall with the suit plot was not found. In such view of the matter the OPs contend that no application for preemption can be maintained.

4. By judgment and order dated 9th April, 2007 in J. Misc. Case no.10 of 2004 the Learned 3rd Civil Court (Junior Division) at Midnapore has recorded that the petitioner/pre-emptor and his brother are the owners of and in possession of plot no.146 adjacent to the suit plot. On the basis of amicable arrangement between them the petitioner/pre-emptor has constructed a room on the eastern portion of plot no.146 being adjacent to the suit plot. In the Sale Deed the OPs have mentioned the boundary of the property sold excepting 1 decimal of land in the northeastern portion of the suit plot so that the petitioner/pre-emptor may not claim preemption. The petitioner, however claims pre-emption on the ground of being an adjoining raiyat.

5. The Learned Trial Court also recorded that the OPs have contended that a Surveyor was appointed and it was detected on the basis of such survey that the petitioner/pre-emptor has encroached on the land of the OP 2/Vendor. The suit plot was sold by the OP 2/Vendor to the OP 1-Purchaser barring 1 decimal of land inasmuch the said 1 decimal of land was in possession of the petitioner/pre-emptor.

6. Upon consideration of the rival submissions the Learned Trial Court was of the view that the point that needs consideration is whether the petitioner/pre-emptor has valid title over 1 decimal of the suit plot no.134. The Learned Trial Court found that in the facts of the present case the OP 2/Vendor did not have any possession over 1 decimal of the suit plot no.134. However, the OP 2 is the real owner in respect of the said land and the petitioner did not have any valid title to the same. In the opinion of the Learned Trial Court although the petitioner/pre-emptor has denied that he is an encroacher in the suit plot no.134, the Learned Court found from the evidence of OP 1 that OPW 2/petitioner/pre-emptor encroached 1 dec