Pre-emption does not lie if the entire land of a vendor is sold to the pre-emptee, but only if a portion or share of land held by a raiyat is transferred.

JUDGMENT :

1. The pre-emptee in a proceeding for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as "the 1955 Act") has preferred the instant application under Article 227of the Constitution of India, challenging a judgment of affirmance, whereby both the courts below allowed the pre-emption application on the ground of co-sharership.

2. The brief facts of the case are as follows.

3. The original owner of the property-in-question, namely Madhusudan Adhikary, had .54 sataks of land in plot no. 977 (old plot no. 727). He gifted the suit property, measuring about .06 sataks out of the said .54 sataks, by three registered deeds dated February 14, 1985, May 14, 1991 and February 27, 1992 to Kartick Ch. Mondal and Sujoy Mondal, the vendors of the pre-emptee. As per the claim of the pre-emptee, the said gift deeds conveyed specifically demarcated properties. Subsequently the original owner sold .05 sataks (also demarcated according to the pre-emptee), out of the said .54 sataks by a registered deed dated December 15, 1996 to the pre-emptors.

4. The pre-emptee purchased the entire .06 satak property belonging to Kartick and Sujoy, as mentioned above, by a registered sale deed dated September 21, 2010, which is the subject-matter of the pre-emption application.

5. The pre-emptors/opposite parties filed the pre-emption case, bearing Miscellaneous Case No. 63 of 2010, on December 16, 2010, on the dual grounds of co-sharership and contiguous ownership.

6. The trial court allowed the pre-emption application on the ground of co-sharership by its order dated April 28, 2017, against which the pre-emptee/petitioner preferred Miscellaneous Appeal No. 11 of 2017. The appeal was dismissed vide judgment and order dated December 19, 2018, thereby affirming the order of the trial court, dismissing the pre-emption application.

7. Being aggrieved by the aforesaid judgment of affirmance, the pre-emptee has preferred the instant application under Article 227 of the Constitution of India.

8. Learned counsel for the petitioner submits that four grounds of challenge were taken by the petitioner in the courts below:

(i) The vendors of the pre-emptee sold their entire land to the pre-emptee and not a portion or share of their land.

(ii) Specifically demarcated lands were transferred all through, starting from the original owner to the pre-emptee.

(iii) Consideration actually paid was more than that shown in the deed sought to be pre-empted; thus the pre-emptors/petitioners deposited less than the actual consideration.

(iv) The land sought to be pre-empted was Bastu and thus pre-emption did not lie under Section 8 of the 1955 Act.

9. Learned counsel for the petitioner, in his usual fairness, did not press grounds nos. (iii) and (iv) above in view of the prevalent position of law in that regard.

10. Learned counsel for the petitioner submits that the deed of transfer, regarding which pre-emption is sought, was executed by the vendors of the pre-emptee in respect of the said vendors' entire property owned in the plot-in-question. As such, it is argued that pre-emption did not lie under Section 8 of the 1955 Act.

11. Learned counsel cites a judgment reported at Dilip Kumar Dhara and Another vs. Ranjit Kumar Mondal, AIR 2019 Cal. 67 wherein a single Judge held that an application for pre-emption under Section 8 of the 1955 Act lies only if a portion or share of a plot of land of a raiyat and not the entire plot, is transferred.

12. Learned counsel, moving on to the second ground of challenge, argues that the deeds of transfer in favour of the pre-emptee and preemptors all go on to show that specific demarcated lands were transferred by those deeds. It is submitted that since the original owner, namely, Madhusudan Adhikary, had transferred specific demarcated portions to the to the predecessors-in-interest of the pre-emptee as well as to the preemptors, Section 14 of the 1955 Act was not attracted at all.

13. Learned counsel places re