JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. Being aggrieved and dissatisfied with the order no. 32 dated 17th August 2019 passed by the Additional District Judge, 1st Court, Suri, Birbhum in Miscellaneous appeal No. 2/2017, present application under Article 227 of the Constitution of India has been preferred.

2. Petitioners contended that the petitioner filed an application under section 8 of the West Bengal Land Reforms Act 1955 before the Civil Judge, 1st (Junior Division) Court at Bolpur being Misc. Case No. 28/2011. Petitioner’s contention in the said pre-emption case is that ‘kha’ schedule property originally belonged to Nilkantha Roy and after his death the same was devolved upon his three sons namely Ganapati, Sripati and Ramapati Roy in equal share. Subsequently 1/3rd share of Sripati devolved upon his five sons, out of which pre-emptor is one of the said sons. Property in question never partitioned among co-sharers. Subsequently 1/3rd share of Rampati devolved upon his two sons Gadadhar and Gangadhar. Gadadhar and his wife subsequently transferred their share in favour of pre-emptee described in ‘kha’ schedule. The pre-emptee is a stranger to the property in question, therefore on the ground of co-sharership the petitioner is entitled to pre-empt the transaction.

3. Opposite party contested the said application by filing written objection contending that the opposite party is not the stranger to the property in question but he is the co-sharer of the holding of the original raiyat. He further contended that the application for preemption is barred as the petitioners have prayed for partial pre-emption, which is not permissible in the eye of law. Accordingly prayed for rejection of pre-emption application.

4. Said application came up for consideration before the trial court and by an order dated 17th January, 2013 the said application was dismissed and challenging the said order the petitioner herein preferred an appeal being misc. appeal no. 8/2013, but said appeal was also dismissed. Further case of the petitioner is that challenging the said order petitioner herein preferred revisional application before the Hon’ble Single Bench, being C.O. 3587/2017 and the Hon’ble Court vide order dated 8th July, 2015, was pleased to dispose of the Revisional Application by remanding the matter before the learned Trial Court with a direction to the learned Trial Court for fresh considerations and Hon’ble Court was further pleased to keep open all the points for consideration by the Trial Court.

5. After remand the trial court by order dated 17th December 2016 was pleased to allow the said application for preemption by holding that the petitioner herein is a co-sharer in respect of ‘Kha’ schedule property and opposite party failed to prove any title in respect of the suit plots.

6. Being aggrieved by the said order the opposite party preferred said appeal before the Learned District Judge, Birbhum which was registered as Misc. Appeal No. 2/2017. During the pendency of the said appeal the opposite party herein filed three applications, two were under order XLI rule 27 of the Code of Civil Procedure and the other one under order VI rule 17 of the code of Civil Procedure.

7. Mr. Dilip Kumar Saila learned Counsel appearing on behalf of the petitioner submits that in the application under order VI rule 17 of the code of Civil Procedure the opposite party intended to bring certain facts afresh in the written objection by way of amendment, stating inter-alia that the opposite party purchased property of plot No. 960,1046 and 1219 and further got share in plot No. 960/1232/2315/1233/1266/1267 by way of inheritance from his father jointly with his three other brothers prior to the purchase of plot by the petitioner herein. He further contended that the aforesaid fact was not brought due to latches and negligence on the part of the learned advocate. Mr. Saila further contended that the petitioner herein contested the said application by way of filling wr