The courts affirmed that oral partition lacks recognition under the West Bengal Land Reforms Act, maintaining pre-emptors as co-sharers, thus preserving their right of pre-emption.

JUDGMENT :

Shampa Sarkar, J.

1. The revisional application arises out of an order dated July 18, 2022 passed in Misc. Appeal No.01 of 2020 by which the Judgment and Order dated December 21, 2019, passed by the Learned Civil Judge (Junior Division), 2nd Court, Khatra in J. Mis Case No.-01 of 2023, was affirmed. The order in the Misc. Appeal was passed by the learned Additional District Judge, Khatra.

2. The petitioners are the pre-emptees/stranger purchasers. The opposite party nos.1 to 4 are the heirs of the deceased preemptor (Ramkinkar). The opposite party no.5 Satyakinkar, sold the property to the petitioners.

3. According to the petitioners, both the learned courts below, acted illegally and with material irregularity in allowing the pre-emption application. The grounds for challenge are as follows :-

(a) The fact that the predecessor-in-interest of the pre-emptor and proforma opposite party no.5, died prior to the RS settlement and the pre-emptor and the proforma opposite party no.5 were in khas possession of their distinct, separate and respective shares, by recording their name in the respective RS khatian, was totally ignored by the learned court.

(b) The heirs of late Rajanikanta Khyara, i.e. the petitioner and the opposite party no.5, were possessing their individual plots on the basis of a mutual oral partition, on the death of their father. Such oral partition was acted upon.

(c) The respective RS khatians prepared in 1962 clearly indicated the factum of separate shares of the pre-emptor and the opposite party no.5.

(d) That the provisions of Section 14 of the West Bengal Land Reforms Act, 1955 was wrongly applied in the case, as partition between the heirs of late Rajanikanta Khyara was admitted and such partition was reflected in the RS record.

4. Learned counsel for the petitioner submitted that after the RS settlement, separate khatians were prepared in respect of Ramkinkar khyara and Satyakinkar khyara. The learned court below ought to have considered such factum of partition of the property of late Rajanikanta Khyara, amongst the two sons by metes and bounds. Once the entire share of the plot enjoyed by Satyakinkar was sold, pre-emption would not lie.

5. Counsel urged that the finding of the learned courts that the parties were co-sharers and Ramkinkar khyara had a right of pre-emption on the ground of co-sharership, was erroneous. Each of the brothers were in possession of their demarcated land on the basis of an oral partition and such oral partition was reflected in the RS record of right and separate khatians bearing no. 1317 and 1318 had been prepared in respect of each of the sons of late Rajanikanta. That the land had been classified as a homestead land.

6. Learned counsel referred to the decision in Barasat Eye Hospital and ors. Vs Kaustabh Mondal reported in (2019) 19 SCC 767, and submitted that the Hon’ble Apex Court had held that pre-emption was a weak right and the court should not be liberal while adjudicating the application under Section 8 of the West Bengal land Reforms Act, 1965 (hereinafter referred to as the Said Act). Further argument was that the evidence on record, mainly the RS khatian and the record of rights ought to have been considered in greater detail in order to appreciate that the partition between the two brothers had become final and conclusive. Once the partition had taken place and the respective shares had been d