IMPORTANT POINT
The court established that the right of pre-emption requires strict compliance with the deposit of full consideration and 10%, as a precondition for maintaining the application.

JUDGMENT :

Shampa Sarkar, J.:-

1. This revisional application arises out of an order dated March 8, 2022, passed by the Learned Additional District Judge, 1st Court, Lalbagh, Murshidabad in Miss Appeal No. 06 of 2021. The learned Appellate Court allowed the appeal filed by the preemptee/opposite party No.1. By the order impugned, the learned Court reversed the judgment and order dated January 29, 2021, passed by the Learned Civil Judge (Junior Division) Additional Court, Lalbagh, Murshidabad in Misc. Pre Case No. 36 of 2014.

2. The learned Appellate Court was of the view that the learned trial judge had wrongly allowed the pre-emption application by allowing the petitioner to deposit the remaining consideration amount along with 10% thereof, contrary to the decision of the Hon’ble Apex Court in the matter of Barasat Eye Hospital and ors. vs. Kaustabh Mondal reported in (2019) 19 SCC 767, The Appellate Court held that it was a settled position of law that the pre-emptor was supposed to deposit full amount of consideration with 10% of the amount, within the specified time as per the statute. Such provision was sacrosanct. The right of pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955 (hereafter referred to the said Act), had not been triggered off in favour of the petitioner in view of the short deposit. The statute mandated such deposit within the period of limitation prescribed in the section itself. The operative portion of the judgment and order passed by the learned Civil Judge, Junior Division indicated that the pre-emption application was filed without depositing the entire consideration with 10% of the amount. By the said judgment, the preemption case was allowed and the short deposit was permitted to be made good. After the decision of the Hon’ble Apex Court in Barasat Eye Hospital (supra), the other decisions of the Calcutta High Court which were relied upon by the pre-emptors, would not hold good. The ratio in Barasat Eye Hospital (supra) was not restricted to the facts of the case alone, but the same was a law laid down on the mandatory nature of Section 8 of the said Act with regard to the deposit of the entire amount along with 10% thereof.

3. The Appellate Court held that right of pre-emption was a weak right and the provision relating to enforcement of such right, must be strictly construed. The said Court further held that the decision of Barasat Eye Hospital (supra) would apply also to pending proceedings, as it was a law declared.

4. Mr. B.N. Ray, learned Advocate appearing on behalf of the petitioners submitted that the appeal was not maintainable at the instance of the opposite party No.1. The opposite party No.1, during the pendency of the pre-emption application, had sold out the property to the opposite party Nos.2 to 6. As the opposite party No. 1 did not have any right, title and interest in the property, the order allowing the appeal at the instance of such a person who had lost his right to the property, was illegal and perverse.

5. His next contention was that in the matter of Abdul Odud Ali vs Emanulla Khan and ors. decided in C.O. No.785 of 2021, a coordinate Bench had referred the question whether the ratio in Barasat Eye Hospital (supra), would apply in case of pre-emption by a non-notified co-sharer, to a larger Bench.

6. Mr. Partha Pratim Roy, learned Advocate appearing on behalf of the opposite party No.1/pre-emptee submitted that the opposite party No.1 was a party to the proceedings. Being aggrieved by the order passed by the learned Judge, he had preferred the appeal. Mere addition of the lis pendens transferees, would not denude the original transferee from protecting his title which passed to the subsequent purchasers. The sale which was made in his favour, would determine the fate of the sale in favour of the opposite party Nos. 2 to 6. He had every right to protect the sale.

7. The plaintiff was under no obligation to proceed against the lis pendens transferees as they would