IMPORTANT POINT
The deposit of the entire consideration amount and the 10% levy at the time of filing the pre-emption application is a statutory and mandatory requirement under the West Bengal Land Reforms Act 1955.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. The pre-emptors/opposite parties herein made an application under section 8 & 9 of the West Bengal Land Reforms Act 1955 interalia seeking for pre-emption in respect of properties described in the schedule to the said application, being Misc. Case no. 18 of 2009.

2. In the said application pre-emptor/opposite parties pleaded that the property described in schedule “ka” to the application originally belonged to one Khuman Chand Marothi and his name was also recorded in RS Record of Rights. Said Khuman Chand transferred the “ka” schedule property along with the other properties to his six sons and delivered possession. Khimraj Marothi, predecessor of petitioners being one of the legal heirs became owner of “ka” schedule property to the extent of 1/6th share. It is further pleaded that while they were possessing the same, they effected partition in between the co-sharers through a solenama in a suit before Civil Judge (Junior Division), Berhampore and thereby each of them were allotted specific share by way of said partition. It is further case of pre-emptors that the adjoining land owner of the “kha” schedule property has right to preempt the case property which was transferred to the pre-emptees/opposite parties and accordingly prayed for pre-emption in respect of “kha” schedule property.

3. The petitioners herein contested the said Application by filing written objection and their specific case is that plot no. 23 originally belonged to Jayanta Mohan Saha and Mohini Mohan Saha and while they were in possession they transferred their 1/3rd share to one Sachidulal Dhar and while the parties were in possession in plot no. 23, one suit being T.S. No. 53 of 2004 was filed, which was decreed in compromise. Subsequently said Jayanta and Mohini transferred a portion specifically allotted to them by means of said solenama to the petitioners for a valuable consideration. His further case is opposite parties herein are not the adjoining owner of plot no.23 and the plot no. 2269 and 2271 are not adjoining to the land transferred to the opposite parties, and that plot no. 2268 is situated in between plot no. 23 and 2269 and that entire share of Jayanta and Mohini in plot no. 23 has been transferred to the opposite parties and in such circumstances the predecessor in interest of the opposite parties are not entitled to pre-empt the disputed land and the predecessor in interest of the opposite parties was not exclusive owner of plot no. 2269 and 2271.

4. Both the parties adduced evidence in support of their respective cases and upon hearing the submissions made by the parties, learned Trial Court by an order dated 20th August, 2009 allowed the said Misc. Case interalia holding that right title and interest, that has accrued by the opposite parties by deed dated 11th May, 2004, do vest in the petitioner/pre-emptor subject to fulfilment of the conditions that the pre-emptor, shall deposit balance consideration money along with 10% interest within two months from the order.

5. Petitioners herein thereafter preferred an appeal being Misc. Appeal No. 65 of 2009 and learned Court below by the Judgment and order dated 30th November, 2015 dismissed the said appeal, observing that the application for pre-emption filed by the original pre-emptor is maintainable and there is no reason to differ with the findings of the Trial Court.

6. Petitioner herein by filing Application contended that immediately after passing of the judgment by the Trial Court, the pre-emptor deposited the balance consideration amount along with 10% statutory amount before the Trial Court below. It is submitted that petitioner preferred aforesaid Misc. Appeal 65 of 2009 on the ground that land sought to be pre-empted is a Bastu land and that vendors have transferred their entire share to the pre-emptees and for which pre-emption does not lie. They never raised the point of short-deposit during the course of hearing of aforesaid Misc. Appel. However