A co-sharer is entitled to pre-emption even if the entire share of the plot is transferred, and the limitation period for filing a pre-emption case by a non-notified co-sharer or adjoining landowner is one year under Article 97 of the Limitation Act.

Mir Dara Sheko, J.

1. Aggrieved by the judgment dated January 30, 1993 delivered in Miscellaneous Appeal No. 144 of 1991 by Ld. Additional District Judge, 2nd Court North 24-Parganas, Barasat affirming the order of pre-emption passed by Learned the then Munsif, 3rd Court Basirhat in Miscellaneous case No. 7 of 1984, the pre-emptee-opposite party/appellant/petitioner, to be called on hereafter as the petitioner, preferred this revisional application on the grounds mentioned in the application under Article 227 of the Constitution of India.

2. Admittedly the case property of Khatian 326 of mouza Chandipur under Police Station Baduria appertained to plot numbers 77, 78 & 81 having an area of 7.82 acre originally belonged to Afsar Mandal, who sold the same to Sahabuddin and Aftabuddin on 2nd February, 1961, who thereafter transferred the said property to one Abul Fazal Tarafdar. Said Abul Fazal Tarafdar then transferred some portions of the case plots to Nazir Ahammed on 1st of December, 1978 and rest to Azizur Rahaman and Fajlur Rahaman on January 17, 1979. The pre-emptor-petitioner/respondent/opposite party, to be called on hereafter as the opposite party, purchased the portion of the case plot from said Nazir Ahmmed by a registered deed dated 2nd May, 1980 and thus became co-sharer to the case plots.

3. Cause of action of the pre-emption case allegedly arose when the pre-emptee-opposite party/ appellant /petitioner purchased the case property to the extent of 2 decimals out of 11 decimals on southern side described in schedule Ka and 1 cent out of 5 cent of plot 77 and 3? cent out of 20 cents of plot 81 described in schedule Kha from said Azizur Rahaman and Fajlur Rahaman by a registered deed dated February 6, 1981 without notice and beyond knowledge of the opposite party.

4. The opposite party came to learn about such purchase by the petitioner while there was approach for demarcation on 9th/ 10th December, 1983. The opposite party accordingly obtaining certified copy of such deed of transfer and by depositing the consideration money along with statutory compensation filed the pre-emption case under Section 8 of the West Bengal Land Reforms Act on the ground of co-sharer & vicinage.

5. The petitioner opposed against such prayer of pre-emption stating that it is barred by the principle of waiver and acquiescence since to the knowledge and at the instance of the opposite party the petitioner purchased the case property on 6.2.1981, and as the pre-emption case is filed in the year 1984, it is barred by limitation and is not maintainable.

6. Ld. Senior Advocate Mr. Bidyut Banerjee at the very outset submitted to send the case back to the Lower Appellate Court since the Appellate Court affirmed the order of the learned Trial Judge allowing the preemption under Section 8 of the W.B.L.R. Act, 1955, in consideration of the provisions under the West Bengal Land Holding Revenue Act, 1979 which according to Mr. Banerjee was altogether a different provision, and more so when, the said Act, being repealed, was no more in existence.

7. Mr. Banerjee further argued that since the issue of applicability of preemption case in the event of transfer of the entire share, or, a portion or share of a plot is pending before the larger Bench of this Court, the court may consider as to whether we should wait till disposal of the issue by the larger Bench.

8. In effect Mr. Banerjee submitted either to allow the revisional application setting aside the judgment of the 1st appellate Court and to send back on remand to the appellate Court within for its disposal only under West Bengal Land Reforms Act, or, to wait till decision by Larger Bench on the pending issue to avoid any conflict in interpretation of the law with regard to the pre-emption case.

9. Mr. Sannyal Ld. Senior Advocate for the opposite party replied that the pre-emption is liable to