The main legal point established is that the pre-emptor's right of pre-emption based on vicinage was prevalent since the date of execution and registration of the impugned deed, and the ex parte decree did not affect this right.

The revisional application has been directed assailing the judgment dated 10th September, 2015 delivered by Learned Additional District Judge, 2nd Court, Contai in Misc. Appeal No. 4 of 2014 affirming the order dated 30th July, 2013 passed by learned Civil Judge (Junior Division) Contai by which the J. Misc. Case No. 27 of 2007 (for preemption) was dismissed declining the prayer of preemption on the ground of vicinage as was sought for by the petitioner-appellant, who will be called on hereafter only as the pre-emptor.

2. Fact, in brief as contended by the pre-emptor Molu Ali Shah that there was a registered partition deed on 28th November, 1954 between his predecessor-in-interest, and, cousin Sadhu Ali Shah got the demarcated "Ka" schedule property mentioned in said deed, whereas, the property, described in "Chha" schedule of said deed, situates on adjacent western side of said 'Ka' schedule property, was allotted to the share of the pre-emptor. Since said Sadhu Ali without notice sold the demarcated case property appertained to plot nos. 848 and 849 on 18th March 1984 (registration of which was complete on 17th September, 1990) to the strangers/opposite party nos. 1 to 5 respondents, who jointly will be called on hereafter only as the pre-emptees. Molu Ali Shah thereby filed the application for pre-emption within time on the ground of vicinage by depositing the requisite amount in Court.

3. In turn, as reveals from the Lower Court's record the pre-emptee nos. 1 & 2 (OP. Nos. 1 & 2), nos. 3 and 4 (OP Nos. 3 & 4) and no. 5 (OP. No.5) with a view to contest in said pre-emption case filed separate written objections respectively, of course, their defence is all the same by which the right of pre-emption of the preemptor on the ground of vicinage in the case-property was denied, and, setting also challenge against the said partition deed to caption the same as void on the ground that since the pre-emptor was minor at the time of the partition deed his representation in said partition deed was held through his mother.

4. Further defence was that by the impugned deed of sale they had purchased 61/7 decimal and 2 1/7 decimals jointly towards extreme eastern side of plot nos. 848 and 849 leaving 1/7 decimals on its western side lying in between the portion allotted to the preemptor and the portion purchased by the pre-emptees, and, said vacant 1/7 decimal has been used by the pre-emptees as their own passage. Therefore the right of pre-emption on the ground of vicinage would not be available due to existence of said strip of 1/7th decimal of land in between the land of pre-emptor and pre-emptees.

5. Further stated that in the impugned deed, by mistake of the scribe the situation of sold out portion was wrongly mentioned on the adjacent eastern side showing said 1/7th decimals at its end i.e. on further extreme eastern side. Such mistake in the schedule of the impugned deed dated 14th March, 1984 was rectified by filing suit and obtaining an ex parte decree in said Title suit no. 78 of 1993, which was filed by the opposite parties (pre-emptees) against Sadhu Ali Shah (since deceased) and others.

6. At the very outset this Court observed that the preemptees have no competence to challenge legality of the partition deed of 1954 on any ground, far to speak of on the ground that the pre-emptor was then a minor and under Mohamedan Law said minor would not be represented by his mother.

7. The trial Court as well as the Lower Appellate Court relying on the ex parte decree of Title Suit No. 78 of 1993 and by holding that since the strip of land, being used as passage, was lying in between the property belonging to the pre-emptor and pre-emptees, the preemptor would not be a contiguous landowner and therefore prayer of pre-emption was declined.

8. Mr. Sabyasachi Bhattacharya representing the preemptor argued that the ex parte decree would not be binding upon his client, since his client the pre-emptor was not made a party to that suit. Subm