In the absence of a partition by metes and bounds through a registered instrument or court decree, a co-owner retains an undivided interest in the entire property, regardless of individual possession of a specific portion, thereby entitling other co-owners to exercise the right of pre-emption.

Headnote:(A) Land Reform Legislation - Right of Pre-emption - Purchase of undivided share in property - Principle of co-sharership - Applicability of pre-emption rights to land of every description regardless of nature.

(B) Partition of land - Requirement of registered instrument or court decree for partition by metes and bounds - Absence of such partition renders interest in land undivided - Concept of oral partition not recognized.

(C) Appellate Scope - Preservation of judicial discipline - Adoption of earlier coordinate bench views until overruled by larger bench.

Facts of the case:
A dispute arose regarding the exercise of pre-emption rights over a property. The petitioners contended that they had purchased a demarcated portion of the property and that the existing owner lacked the status of a co-sharer. The trial court and the first appellate court rejected this contention, concluding that no evidence of a formal partition by metes and bounds existed, and therefore, the land remained undivided.

Findings of Court:
The court held that in the absence of a partition via a registered instrument or a court decree, the owners of shares in a plot, regardless of their individual possession, continue to be co-sharers in the entire plot. The court further clarified that pre-emption under the governing land laws extends to all categories of land. Following the principle of judicial discipline, the court adhered to the established view of coordinate benches regarding the maintenance of pre-emption applications for homestead properties.

Issues: Whether the purchase of an alleged demarcated portion of land negates the status of a co-sharer, and whether a formal partition is a prerequisite to prevent the exercise of pre-emption rights.

Ratio Decidendi: Determined that property remains undivided until partitioned by metes and bounds through a registered deed or judicial decree. Mere occupation of a specific portion does not extinguish the co-ownership status of other stakeholders, thus preserving the statutory right of pre-emption.

Result: Revision dismissed.

1. The civil revision has been preferred against the judgment and order dated 27.07.2023 passed by the learned Additional District & Sessions Judge (3rd Court), Suri, Birbhum, in connection with Misc. Appeal No. 9 of 2017 thereby affirming the judgment and order dated 23.03.2017 passed by the learned Civil Judge (Junior Division), 1st Court, Bolpur, Birbhum, in Misc. (Pre-emption) Case No. 54 of 2012.

2. Petitioners state that by virtue of the registered Deed of Conveyance dated 09/05/2012 the petitioners became the sole and absolute owners of all that piece and parcel of land measuring about 1/8th share out of the 1/4th share of the said two storied building standing on all that piece and parcel of land measuring about 6 decimals lying and situated at Mouza- Kalikapur, J.L No. 98, L.R. Khatian No. 583, L.R. Khatian No. 98 at R.S. and L.R. Dag No. 644 within the jurisdiction of Bolpur Police Station, District-Birbhum and accordingly he paid revenue taxes to the concerned B.L. & L.R.O as well as to the concerned municipality.

3. The petitioner states that the respondent/opposite party on 16.12.2022 purchased the 3/4th share of the said two storied building from the legal heirs of said Dharmadas Dalal vide a registered Deed of Conveyance being Registered in Book No. I, CD Volume No.27, Pages from 189 to 201, being no. 11303 for the year 2011, before the office of the District Sub-Registrar, Birbhum and on 13/07/2012 the two daughters of Late Bimal Chandra Dalal transferred their share being 1/8th share of the total area of the 1/4th share of the said two storied building to the Pre-emptor/Respondent/Opposite Party herein vide registered Deed of Gift being Registered in Book No.I, CD Volume No. 19, Pages from 1479 to 1490, being no. 06459 for the year 2012 before the office of the Additional District Sub-Registrar, Bolpur, Birbhum.

4. Petitioners state that the Pre-emptor/Respondent/Opposite Party herein allegedly claiming himself to be a co-sharer in respect to 7/8th share of land with structure lying and situated at R.S. and L.R. Dag No. 644 lying, Mouza-Kalikapur, J.L No. 98, L.R. Khatian No. 583, within the jurisdiction of Bolpur Police Station, District-Birbhum, filed an application under section 8 of the West Bengal Land Reforms Act, registered as Misc. Case (Pre-emption) No. 54 of 2012 before the Court of learned Civil Judge (Junior Division) the 2nd Court, Bolpur, Birbhum against the petitioners alleging that the said 1/8th share was sold, without serving a notice upon him under Section 5(5) of the West Bengal Land Reforms Act and thus exercised his right as a non notified co-sharer.

5. Misc. (Pre-emption) case no. 54 of 2012 filed against the petitioners was decreed in favour of the opposite party herein as follows :

"that the application u/s 8 of the WBLR Act is allowed on contest against the O.P. The right, title and interest of the suit property is hereby stand transferred in favour of the petitioner.”

The right, title and interest in respect of the suit property vests upon the petitioner with immediate effect. O.P. is at liberty to withdraw the consideration amount deposited by the petitioner."

6. Misc. Appeal No. 09/2019 filed by the petitioners has been dismissed on 27.07.2023.

7. Being aggrieved the petitioners have preferred the revision on the grounds as follows :

“i) The trial Court failed to consider that the original owners were not impleaded as parties as they could have proved whether notice has been served or not.

ii) That the opposite party had not acquired any right as co-sharer on 09.05.2012, when the petitioners had acquired their undivided 1/8th share, as the remaining undivided 1/8th share was acquired by the opposite party herein, only on 13.07.2012, that is subsequently.”

8. Admittedly, at the time of execution of sale deed dated 09/05/2012, the Pre-emptor/Respondent/Opposite Party herein was the owner only in respect of 3/4th share of the said two storied building.

9. The petitioners state that 3/

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2025 Supreme(Online)(Cal) 9625

18.03.2026 Item No. 28 Ct. No. 30 Aloke CO 4053 of 2023 Ratan Kumar Roy & Anr.VsSubhasis Dalal Mr. Kartick Kr. BhattacharyaMr. Tirtha Pati AcharyaMr. Soumashree DuttaMs. Papiya Naskar… for the petitionersMr. Shyamal Kr. DasMr. Pronojit Ray... for the opposite party

In the absence of a partition by metes and bounds through a registered instrument or court decree, a co-owner retains an undivided interest in the entire property, regardless of individual possession of a specific portion, thereby entitling other co-owners to exercise the right of pre-emption.

Cases Referred (2)

18.03.2026

Item No. 28

Ct. No. 30

Aloke

CO 4053 of 2023

Ratan Kumar Roy & Anr.
Vs
Subhasis Dalal

Mr. Kartick Kr. Bhattacharya
Mr. Tirtha Pati Acharya
Mr. Soumashree Dutta
Ms. Papiya Naskar
… for the petitioners
Mr. Shyamal Kr. Das
Mr. Pronojit Ray
... for the opposite party