An application for preemption under Section 8 of the West Bengal Land Reforms Act, 1955 is maintainable even if the entire share or portion of a plot of land is transferred by a co-sharer/raiyat to a stranger.

Harish Tandon, J.

This revisional application is directed against judgment dated 18th December, 2014 passed by the learned Additional District Judge, 3rd Court, Hooghly in Preemption Miscellaneous Appeal No. 38 of 2013 affirming the judgment dated 28th February, 2013 passed by the learned Civil Judge (Junior Division), 2nd Court, Hooghly in Preemption Case No. 04 of 2008.

2. The preemptor as a co-sharer of a raiyat filed an application under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as 'said Act') seeking preemption against the petitioner herein, who purchased the share of the other co-sharers/raiyats for valuable consideration.

3. The fact emerged from the aforesaid application is that the said property was purchased jointly by the petitioner and the proforma opposite party no. 2 by virtue of sale deeds being nos. 4273 and 4274 for the year 1986 from one Mr. Tyunjoy Roy and were jointly in possession thereof. It is further alleged that the Record of Right reveals that their names are recorded to the extent of half share each under L. R. Khatian No. 756/1 and 147 respectively.

4. In paragraph 3 of the said application, it is categorically stated that the property purchased by the petitioner and the proforma opposite party no. 2, though by separate deeds, is a joint property and no partition has been effected, but the parties by amicable agreement are enjoying their respective possessions exclusively.

5. It further bone out from the said application that a suit for partition being Title Suit No. 317 of 2007 is pending before the Court of learned Civil Judge (Senior Division), 1st Court, Hooghly at Chinsurah. The proforma opposite party no. 2 sold, transferred and conveyed his share to the opposite party no. 1 herein for a consideration of Rs. 1,75,000/-, which is not in consonance with the market value and have been exaggerated to avoid the preemption under the aforesaid Act.

6. The subsequent purchaser, the opposite party no. 1, in the written statement denied the assertion of amicable arrangement, which could be culled out from paragraph 8 of the written objection. It was a simple denial without any categorical statements made in this regard.

7. The preemption application was considered by the Trial Court on a limited compass as to whether Section 8 of the said Act can be invoked by the cosharer/raiyat, if the entire share or portion of a plot of land is transferred by a co-sharer/raiyat to a stranger. Both the Courts concurrently held that if the entire share or the portion of the plot of land was transferred by the cosharer/raiyat, the application for preemption under Section 8 of the said Act is not maintainable.

8. Both the learned advocates representing the respective parties are in unison that the point agitated and considered by both the Courts below is restricted on the entertainability of an application under Section 8 of the said Act on the aforesaid point of law.

9. This Court had an occasion to consider the identical point in the case of Biswanath Sarkar & Anr. v. Sunit Kumar Saha, reported in (2013)3 WBLR (Cal) 271 and after noticing the language employed in Section 8 of the said Act, more particularly, the word "or" in between the words "share" and "portion" held that even if the entire share is transferred by the co-sharer/raiyat, an application under Section 8 of the said Act is maintainable at the instance of the cosharer/raiyat in these words:

"19. Having considered the respective submission is, Section 8 of the West Bengal Land Reforms Act, 1955 relates to the right of preemption of a bargadar, co-sharer raiyat and the contiguous plot holder, in case a portion or share of a plot of land of a raiyat is transferred to any person, other than the co-sharer. Proviso attached to the said Section contains the order of the precedence whereas sub-section (2) provides the exception where the pre-emption cannot be claimed under the said provision.

20. The expression "portion or share