The application for preemption under Section 8(1) of the West Bengal Land Reforms Act is maintainable even if the land is 'Bastu' land.

SHIVAKANT PRASAD, J.

1. The judgment dated 31st May, 2014 passed by the Additional District Judge, 2nd Court, Raiganj, Uttar Dinajpur in Misc. Appeal No. 4 of 2012 thereby setting aside the order dated 31.1.2012 passed in Misc. Case No. 74 of 2002 by the Civil Judge, Junior Division, Raigunj, Uttar Dinajpur is under challenge in this application.

2. Moot issue which arises for consideration in the present application under the scheme of Article 227 of Constitution of India is whether an application for preemption under Section 8(1) of West Bengal Land Reforms Act (hereinafter referred to as the Act) is maintainable in case of land which is by nature ‘Bastu’.

3. The petitioner filed Misc. case No. 74 of 2002 under Section 8 of the Act before the learned Civil Judge, Junior Division, Raiganj, Uttar Dinajpur on the grounds inter alia that petitioner shares a common boundary with the suit property and as contiguous holder of the common boundary he has a right of preemption of the suit property.

4. He alleged that the opposite parties namely, Pankoj Mukhopadhya, Tapas Kumar Chanda and Debasis De had purchased the suit property by way of a Registered Deed from Chandan Kumar Das without informing the petitioner.

5. The opposite parties entered appearance before the learned Court and contested the preemption case by filing written objection and contended inter alia that the suit property in Dag No. 1130 consists of 23 decimals of land as mentioned in RSROR being No. 1120 has been recorded in the name of Mukunda Chandra Das. The said Mukunda Chandra Das was issueless out of his first wedlock and thereafter he married for the 2nd time and 11 children were born out of their wedlock. Prafulla Kumar Das, son of Mukunda Chandra Das was the father of Chandan Kumar Das, Aloke Kumar Das, Pradip Kumar Das, Sujit Kumar Das and Biswajit Das and therefore, the legal heirs of Prafulla Kumar Das viz., his five sons and one wife together possessed 1/11 out of 23 decimals of land by way of succession and by way of purchase from co-sharers named Bijoy Kumar Das, Saibya Rani Das, Dipu Gupta, Ashis Kumar Das, Sadhan Kumar Das. The said 5 sons of Prafulla Kumar Das namely, Chandan Kumar Das, Aloke Kumar Das, Pradip Kumar Das, Sujit Kumar Das and Biswajit Das sold 2.60 decimals of land to the petitioner by way of 5 registered deeds in the year 1985 and thereafter sold 4.95 decimals of land to Nehar Sarkar in the West and at last sold 5.85 decimals of land of Misc. Case No. 74 of 2002. Thus, the above mentioned vendors do not have any other land in the suit property. The opposite parties being defendants in Misc. Case No. 74 of 2002 further contended that Prafulla Kumar Das was suffering from kidney disease for a long time his brothers in need of approximately Rs. 5 lakhs offered the petitioner to purchase the suit property to which the petitioner did not accept the offer. So, the opposite parties sold the suit property to one Nihar Sarkar who being another co-sharer, shares a common boundary in the suit property and specifically contended that the suit property as recorded in the RSROR is ‘Bastu’ and the application for preemption is not maintainable. Accordingly, the opposite parties prayed for dismissal of the said case.

6. The learned Trial Judge allowed the Misc. case by granting an order of preemption on contest with cost on 31.1.2012.

7. The opposite parties on being aggrieved by and dissatisfied with the order of preemption preferred Misc. Appeal No. 4 of 2012 before the learned District Judge and on being transferred to the learned Additional District Judge, 2nd Court, Raiganj, Uttar Dinajpur, appeal was heard and learned Appeal Court set aside the order of preemption dated 31.1.2012 with observation that the RSROR being finally published carries presumptive value as to correctness of record unless rebutted which shows that the suit property in question is by nature ‘Bastu’ by placing reliance on the citations viz. (2007)3 WBLR Cal. 93 and (2012