An application for preemption is maintainable even when a co-sharer has divested his entire share or portion of plot of land to a third person than the raiyat.

Harish Tandon, J.

1. This revisional application is directed against a judgment and order dated 22nd December, 2014 passed by the learned Judge, Special Court-cum-Additional District Judge, Durgapur in Misc. Case No. 2 of 2013 affirming the order of dismissal dated 12th December 2012 passed by the learned Civil Judge (Jr. Division), Second Court, Durgapur in Misc. Case (pre-emption) No. 8 of 2006.

2. Both the Courts below dismissed an application under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the Act) holding that the petitioner is not a co-sharer of a raiyat in a plot of land nor is a contiguous plot holder and, therefore, cannot maintain an application under the aforesaid provision.

3. Before adjudicating the points involved in this case, the undisputed facts are adumbrated herein below:

4. Admittedly, one Mera Debi owned and possessed twenty eight cents of a land comprised in plot No. 1086, R.S. Khatian No. 521, C.S. Khatian No. 212, JL No. 87 in Mouja Debipur, P.S. Kanksa, District - Burdwan, described as a A schedule property in an application for preemption. Out of the A schedule property, the said Mira Debi sold six cents of lands (A 1 Schedule) to Subhadra Debi and Chhedi Show on the basis of the deed No. 3504/1990. In turn the said Subhadra Debi and Chhedi Shaw sold five cents (B Schedule) to Narendra Kr. Singh and Debendra Kr. Singh, the petitioners herein, by virtue of a sale deed bearing No. 5607 of 1992.

5. Subsequently, the said Mira Debi sold five cents (Schedule A-2) to Subhadra Debi on the basis of deed No. 1603 of 2000. Subhadra Debi thereafter sold five cents of land comprised in plot No. 1086 to Smt. Gursharan Kaur and Smt Manjeendar Kaur, the opposite parties herein on 16.1.2006 by executing and registering the deed before the registering authority. Admittedly, the registration was completed on 7.3.2006 and an application for pre-emption under Section 8 of the said Act on the ground of vicinage came to be filed on 12.4.2006. The petitioners thereafter took out an application for amendment of the pre-emption application on 20.3.2007 which was eventually allowed vide Order No. 17 dated. 29.6.2007 subject to the payment of costs. It is undisputed that the opposite parties received the costs and the application for preemption was amended accordingly. Resultantly, the application for preemption was founded not only on the ground of vicinity but also as a co-sharer of a raiyat in a plot of land.

6. The trial Court dismissed the pre-emption application, so far as the ground of vicinity is concerned, as the plot owned by the petitioners and the plots subsequently owned by the opposite parties are demarcated by a strip of land. The plea of co-ownership was negated on the ground of limitation by the Trial Court. Though the Appellate Court did not agree with the reasons assigned by the Trial Court on the ground of limitation, but concurs with the ultimate decisions holding that the petitioners are not the co-sharers as the entire share or entire portion of a plot of land is transferred to the opposite parties and, therefore, the application for preemption is not maintainable.

7. Both the learned advocates appearing for the parties did not raise a plea of vicinage but restricted their argument on a plea of co-sharership and, therefore, this Court can proceed to decide the aforesaid plea having abandoned the plea of vicinage.

8. Mr. Bhaskar Ghosh, the learned senior advocate for the petitioners attacks the judgment of both the Courts below by saying that once an application for amendment of the original application for pre-emption is allowed without any rider as to when the said amendment shall take effect, the law enjoins that it will relate back to the date of its institution. According to him, the registration, so far as, it relates to the purchase by the opposite parties are concerned, was completed on 7.5.2006 and the application for pre-emption having filed though initiall