The main legal point established in the judgment is that under section 8 of the West Bengal Land Reforms Act, 1955, the right of pre-emption can be exercised by a co-sharer when a portion of the property is transferred to a stranger purchaser without the consent of the co-sharer.

Mir Dara Sheko, J.

Though the lower court records was called for by an order dated July 15, 2015, the department has produced only two files in connection with Misc. Appeal No. 44 of 2016 from where the record of learned trial Judge who has disposed of the pre-emption case on the basis of evidence-both oral and documentary is not available.

2. Mr Debdutta Basu assisted by Mr Sudip Sarkar represents the petitioner-appellant who is the pre-emptor who will be called on hereafter as the petitioner.

3. From the affidavit of service it appears that notice was served upon the opposite party, but none represents her. Therefore, considering the nature of the proceeding the case is taken up for consideration and disposal on merit on the basis of the available materials on record at the instance of learned advocate for the petitioner.

4. Let a copy of the impugned deed dated April 1, 2002 executed by Naba Kumar Kundu in favour of the opposite party, Sarathi Halder, and a copy of the R.S. Khatian No. 29 of Mouza Krishnagang bearing Entry of the case plot No. 341, as supplied by Mr Basu, be taken on record.

5. The application under Article 227 of the Constitution of India has been directed assailing the judgment delivered by learned Additional Sessions Judge, Fast Track Court-I at Krishnagar, Nadia in Misc. Appeal No. 44 of 2006 reversing the pre-emption order passed by learned Civil Judge (Junior Division), 1st Court at Krishnagar in Misc. Case No. 11 of 2002.

6. As it reveals, the case property comprised of plot No. 341, nature of the property being homestead, having an area of 21 decimals originally belonged to one Amulya Kumar Kundu. Ultimately by way of inheritance Gauranga Kundu and Naba Kumar Kundu being his two sons inherited said 21 decimals. During their possession both the brothers had sold out 5 decimals out of 21 decimals with specific demarcation to one Manju Biswas. Naba Kumar sold impugned 3 decimals of said homestead plot with specific demarcation in favour of the opposite party, Sarathi Halder, on April 1, 2002, registration of which was completed on April 2, 2002, since the said deed was copied in the registry office on April 2, 2002.

7. Within a few days, i.e. on April 9, 2002, again those two brothers jointly sold 10 decimals with specific demarcation to one Krishna Nath Roy and others and by such process Gouranga had exhausted 7½ decimals out of 21 decimals and Naba Kumar exhausted 10½ decimals including the disputed 3 decimals.

8. Gouranga, being the petitioner, filed the pre-emption case to pre-empt said 3 decimals of property sold by his brother Naba Kumar in favour of the opposite party, Sarathi, as mentioned above. It is asserted that since the said purchase was held beyond his knowledge and without notice, and since there was never partition by metes and bounds, the said property measuring 3 decimals being liable to be pre-empted Gouranga Kundu filed the pre-emption case by depositing the consideration money with statutory interest for preemption under section 8 of the West Bengal Land Reforms Act, 1955.

9. The opposite party in her turn submitting written objection averred that since there was transfer held by both the brothers with specific demarcation and since after purchase the opposite party has been occupying the same by raising construction of their residential house and since in view of the effecting partition between the brothers, the concept of co-sharership would no more be available. Therefore, urging non-applicability of section 8 of the West Bengal Land Reforms Act, 1955 the opposite party-pre-emptee prayed for disposal of the application.

10. Learned trial court upon examination of the evidence - both oral and documentary - took note of the fact that O.P. Sarathi Halder (O.P.W.1) admitted at page 7 of her cross examination that suit plot has not been partitioned. The law is set at rest that concept of partition cannot be accepted de hors the provision laid down under section 14 of the West Bengal