The pre-emption application was not maintainable due to non-compliance with the statutory requirement of depositing the entire sale consideration with 10% levy, as mandated by Section 8 of the West Bengal Land Reforms Act, 1955.

JUDGMENT :

Shampa Sarkar, J.

1. The present revisional application is directed against the judgment and order dated December 22, 2022, passed by the learned Additional District Judge, Fast Track, 2nd Court, Krishnagar, Nadia, in Misc. Appeal No.22 of 2021.

2. The learned appellate court allowed the appeal filed by the preemptees upon reversing the judgment and order dated September 10, 2021, passed by the learned Civil Judge (Junior Division), 2nd Court, Krishnagar, Nadia, in Misc. Pre-emption Case No.18 of 2016. The learned trial judge had allowed the pre-emption application and decreed the same in favour of the petitioner. The Misc. Appeal, challenging the said order of pre-emption was filed on the following grounds:-

(a) That the order passed by the learned court was erroneous, illegal, arbitrary and without jurisdiction.

(b) The order suffered from error of law and fact.

(c) The documentary evidence was not considered and the decision was based on surmise and conjecture. The order did not have any foundation in the eye of law. Bijay Sankar Mukherjee had sold his entire share to the opposite parties. The question of pre-emption would not arise as the co-sharership had ceased. As Bijay Sankar Mukherjee had given a series of letters, showing his intention to sell the property, the pre-emptor could not be treated as a non-notified co-sharer. The pre-emption application was barred by limitation as it was not filed within three months from completion of the sale.

3. The learned appellate court allowed the Misc. Appeal on the ground that the preemption case was not maintainable as the preemptor did not deposit the entire sale consideration along with 10% of the amount when the premption application was filed. On the issue of co-sharership, the learned appellate court opined that as a part of the portion of land occupied by a co-sharer was sold, the pre-emptor was rightly held to be a non-notified co-sharer. The period of limitation would be one year from the date of completion of the sale. The learned appellate court also held that the letters which were issued by Bijay Sankar Mukherjee, to Supriyo Mukherjee, could not be treated as a notice as contemplated under Section 5(5) of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act).

4. The learned appellate court however accepted the contention of the pre-emptees that the dictum of law declared by the Hon’ble Apex Court in Barasat Eye Hospital and Ors vs Kaustabh Mondal reported in (2019) 19 SCC 767, had not been followed by the learned trial judge. It was held that a point of law could be considered in the appeal. Even though the interlocutory order by which the balance consideration was allowed to be deposited had not been challenged, it was held that the appeal court could re-appreciate the maintainability of the pre-emption case in the appeal. According to the learned appellate court, an order contrary to the provisions of law did not have any legal sanctity. Therefore, the issue of non-compliance of the mandatory condition of depositing the entire consideration money in terms of Section 8 of the West Bengal Land Reforms Act with 10% of the amount along with the pre-emption application, was a question of law and not a question of fact. Such issue could be raised before the appellate court.

5. Interpreting the provision of Order 41 Rule 2 of the Code of Civil Procedure, it was held that the appellate court would not be confined to the grounds of objections set-forth in the memorandum of appeal. However, the party who would be affected by a decision in this regard should be given sufficient opportunity to contest such ground sought to be decided by the appellate court.

6. In the case in hand, the Misc. Appeal was contested by the pre-emptor and several decisions of the Calcutta High Court were cited. In those decisions the courts had held that there was no hard and fast rule as per Section 8 and Section 9 of the said Act, that the moment the consideration