The opening of a separate khatian does not ipso facto lead to the partition or separation of a plot of land. Partition of a plot of land among co-sharers of a raiyat shall only be made either by a registered instrument or a decree or order of the Court.

Harish Tandon, J.

An unsuccessful plea is further raised before this Court by the petitioner that opening of the separate khatian tantamounts to a separation of plot of land and denotes an exclusive right of a person whose name is recorded therein which is opposed to the concept of cosharership.

2. One Siddeswari Dasi became the owner of R.S. Plot No. 187 comprising 2.27 acres of land and Plot No. 240 measuring 1.68 acres under Mouza Jitmahanpur by deed of purchase from the erstwhile owner.

3. The said Siddeswari Debi upon her death left behind her surviving two daughters, namely, Bhulia Bewa and Sandhya Bewa and a son, namely, Kameswar Karmakar, who inherited undivided ?rd share in each of such plots being the subject matter of the dispute in the preemption proceedings.

4. Undisputedly, the said Kameswar Karmakar had four sons, namely, Atul Chandra Karmakar, Binay Karmakar, Shib Charan Karmakar and Dinesh Karkamar, the opposite party herein. The aforesaid two daughters subsequently divested their respective shares in the aforesaid plots in favour of the said four sons of Kameswar Karmakar. In the year 1987, the said Kameswar Karmakar transferred 19 decimal of land in Plot No. 187 and 14 decimal of land in Plot No. 240 in favour of the opposite party herein by executing and registering the deed bearing No. 11291 dated. 9.11.1987.

5. One of the sons of Kameswar Karmakar, i.e., Shib Charan Karmakar sold, transferred and conveyed 38 decimals of land in Plot No. 187 and 28 decimals of land in Plot No. 240 to the petitioners herein on the strength of registered deed No. 295 dated 27.1.2004 and the registration was complete on 30.9.2004. The opposite party filed an application under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred as the 'Act') as a co-sharer, within the period of limitation provided therein ascertaining the right of pre-emption. The petitioners assert that the partition was effected amongst the co-sharers before April 14, 1981 which can be corroborated by the fact that a separate khatian was opened for their vendor, namely, Shib Charan Karmakar and, therefore, he cannot be treated as a co-sharer in respect of the subject land.

6. Both the Courts below negated the stand of the petitioners that the opening of a separate khatian has an effect of a partition of a plot of land.

7. Mr. Asis Kumar Bagchi, learned advocate for the petitioner submits that Section 51(5) of the said Act makes it imperative to open a separate khatian for each raiyat which has an implied effect of partition of a plot of land. He audaciously submits that though Section 14 of the said Act do not include the same to have the effect of partition but by legal fiction it achieves such resultant effect and, therefore, an application for pre-emption is not maintainable at the instance of the co-sharer. He relied upon a judgment of this Court in case of Smt. Damayanti Maity v. Aswini Kumar Jana and Others reported in 1990 (2) CLJ 378 and submits that the definition of a holding under Section 2 (g) of the West Bengal Land Holding Revenue Act, 1979, means total of every description of land held by a raiyat and the said Act having a overriding effect on the West Bengal Land Reforms Act, 1955 and, therefore, the total land held by a raiyat is taken as unit of assessment for revenue and, therefore, there cannot be any question of co-sharership in the same holding.

8. He further relies upon a judgment of the Full Bench in case of Madan M. Ghosh & Ors v. S.B. Atta & Ors reported in 76 CWN by submitting that when a raiyat owns a separate holding or tenancy, it negates the concept of co-sharership. Lastly he submits that both the Courts below have wrongly held that the opposite party is a co-sharer of a raiyat and an application for pre-emption is maintainable.

9. Mr. Pinaki Dhole, learned advocate for the opposite party submits that the vendor of the petitioner acquired the share in a plot of land by inheritance and is thus the co-shar