IMPORTANT POINT
The main legal point established in the judgment is the entitlement of an adjoining land holder raiyat to pre-emption under the West Bengal Land Reforms Act 1955.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. Opposite party no.1 herein namely Santosh Das filed an application under section 8 and 9 of the of the West Bengal Land Reforms Act 1955, seeking pre-emption of the land mentioned in “gha” Schedule to the plaint out of “kha” schedule. Pre-emptor’s case as made out in the application is that opposite party no. 2 herein Jagabandhu Malik became owner of 069 decimal demarcated land with specific boundary on the eastern side of the “ka” schedule by a compromise degree, passed in terms of solemenama, in the year 1957 in T.S. no. 122 of 1948. His further case is Jagabandhu (Opposite party no.2) since allotment, used to possess the said .069 decimal “kha” schedule land separately and exclusively. Thereafter he transferred .033 decimal of land mentioned in “ga” schedule to the application, to the pre-emptor/opposite party no.1 herein with a clear and distinct boundary by a registered sale deed on 24th July,1998. Since purchase pre-emptor/opposite party no.1 herein became adjoining land holder raiyat of case land and was/ is in possession of the said land by way of cultivation. Jagabandhu/opposite party no. 2, thereafter transferred 22 ½ decimal “gha” schedule land to the petitioner herein/pre-emptee by a registered deed dated 27th October, 1998 without notice to the opposite party no. 1/pre-emptor who is the adjoining land holder raiyat. The pre-emtor/opposite party No.1 submits that the pre-emptee/petitioner herein is a complete stranger to the case property and as the suit plot was transferred by Jagabandhu/opposite party no.2, in favour of petitioner herein, without notice, the opposite party no. 1 herein filed the said application seeking preemption.

2. The case of the pre-emptee petitioner as reflected from the written objection interalia is that opposite party no. 1 herein/pre-emptor has no prima facie case of adjoining land holder raiyat. His specific case is that he has purchased 22 ½ decimal land in the case property out of 1.44 acre land. Pre-emptor had already acquired 33 decimal within .069 decimal land and from the recital of petitioner’s deed it appears that on the same day Jagabandhu transferred 13 ½ decimal of land in favour of Basudev Dey and as such with the transfer of suit land opposite party no. 2 herein had transferred his entire share i.e. 069 decimal land and accordingly prayer for pre-emption is not maintainable.

3. Mr. Adhikary learned counsel appearing on behalf of the petitioner further submits that from the recital of the deed of purchase of the petitioner, it appears that though the deed of Basudev was registered on same day, i.e. on 24.07.1998 but the time of execution /presentation of the said deed in favour of Basudev is not mentioned, either in the said deed or in the application for pre-emption filed by the opposite party no. 1.

4. He further argued that total area of land in plot no. 481 of Mouza Dharampur mentioned in “ka” schedule to the application is of 1.44 acres. From the pleading, it is clear that the land is not partitioned in between the co-sharers. Pre-emptor had sought for pre-emption against 22 ½ decimal of land, sold to petitioner herein, but the pre-emptor had not sought for preemption against the area of 27 decimal of land, sold by the other co-sharers to pre-emptee Niyati Mahato on the same day and as such the pre-emption application is barred by partial pre-emption.

5. He further submits that from the finding of the Trial court, it appears that nowhere it has been decided who purchased first from Jagabandhu i.e. either the pre-emptor Santosh Das or Basudev Das. No evidence has been produced by the pre-emptor to prove the aforesaid fact before the Trial court. Accordingly where no pre-emption is prayed for against the first transfer, in favour of Basudev, right to apply for pre-emption in connection with second transfer in favour of pre-emptee is barred. In this context he relied upon Ashima Dutta Vs. Chandra Nath Bhattacharya, reported in (2005) 2 CHN