IMPORTANT POINT
The main legal point established in the judgment is that the entitlement to pre-emption under the West Bengal Land Reforms Act 1955 is determined by evidence of co-ownership and contiguous landholding.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. This application has been directed against judgment and order dated 24.09.2018 passed by the learned Additional District Judge, 3rd court Purulia in Miscellaneous Appeal no. 24 of 2015. By the impugned judgment learned court below has affirmed the judgment and order dated 30.07.2015 passed by learned Civil Judge (Junior Division), Purulia in Misc. (preemption) Case no. 9 of 2000.

2. Opposite party no. 1 herein namely Dharani Dhar Mahato filed aforesaid pre-emption case contending that the suit property being R.S. Plot No. 2395 has been recorded in the names of Padok Mahato and Robi Mahato in equal share, each having eight annas share therein but since they have amicable partitioned the suit property Robi Mahato was in exclusive possession of the case plot having an area 2.72 acres and after his death the said property devolved upon his two sons i.e. the opposite parties herein namely Dharani Dhar Mahato and Prahlad Mahato and accordingly the opposite parties are the alleged co shares to each other in the said property having interest of 1.36 acres of land.

3. Further case of the pre-emptor /opposite party no.1 is that on 01.02.2000 the opposite party no.2 herein sold a portion of his shares in the case plot by a registered sale deed in favour of the present petitioner measuring 16 ½ decimals without disclosing the same to the opposite party no. 1. Moreover opposite party no. 1 has lands contiguous to the case property and as such he is entitled to pre-empt the said property.

4. The petitioner herein filed objection in the said pre-emption case and denied all material allegations made in the pre-emption application. The petitioner as opposite party had taken specific defence;

(i) That the opposite party no.1 had full knowledge about said sale as the opposite party no.2 requested him to purchase it but he was not ready to pay actual value.

(ii) The opposite party no.1 was not a co-sharer at the relevant point time.

(iii) The opposite party no. 1 has no land contiguous to the case property.

5. The learned trial court after hearing the parties and on perusal of materials on record was pleased to allow the prayer of the opposite party no.1 and passed order of pre-emption by the judgment dated 30.07.2015.

6. Being aggrieved by that judgment and order, petitioner herein preferred aforesaid miscellaneous appeal being Misc. Appeal no. 24 of 2015 before the learned District Judge, Purulia. The opposite party no.1 contested the said Appeal by filing objection wherein he had denied all materials allegations. Said appeal came up for hearing before the appellate court on 24.09.2018 and the court below by the impugned order has been pleased to affirm the judgment passed by the Trial Court and thereby dismissed the appeal.

7. Mr. Ghosal learned counsel appearing on behalf of the petitioner being aggrieved by the concurrent findings of the courts below contended before this court that the Courts below without considering the facts and circumstances of the case arrived at a decision not tenable in the eye of law. In fact both the courts below failed to appreciate the evidence placed before the courts below on behalf of the petitioner and did not assign any reason as to why they have disbelieved the evidences adduced on behalf of the pre-emptee/petitioner herein and appreciated only those portion which goes in favour of opposite party no.1. The courts below ought to have held that the opposite party no.1 was no longer a co-sharer of the opposite party no.2 at the relevant time, when the disputed plot was sold to the petitioner.

8. Mr. Ghosal further submits that DW-1 in his evidence has categorically stated that before selling the property to the petitioner the opposite party no.2 approached the opposite party no.1 but he was not ready to pay the actual value of the land in question and for which the opposite party no.2 was compelled to approach the petitioner. He further submits both the courts below failed