PRASENJIT MANDAL,J. - (1.) CHALLENGE is to the Order dated April 17, 2002 passed by the learned Additional District Judge, 1 st Court, Hooghly in Misc. Appeal No.84 of 1994 thereby affirming the Order dated February 25, 1994 passed by the learned Civil Judge (Junior Division), 2 nd Court, Chandannagar in Misc. Case No.18 of 1992.
(2.) THE appellant / petitioner herein instituted a pre-emption case being Misc. Case No.18 of 1992 under Section 8 of the West Bengal Land Reforms Act, 1955 against the opposite party no.1 and the proforma opposite party no.2 on the ground of co-sharership and vicinity. THE opposite party no.1 contested the said misc. case by denying the material allegations raised in the application. On the basis of the evidence adduced by the parties, the learned Trial Judge dismissed the said misc. case on contests. Being aggrieved, the petitioner preferred an appeal being Misc. Appeal No.84 of 1994 and that misc. appeal was also dismissed on contest by the impugned order. Being aggrieved, the appellant has preferred this application. Now, the question is whether the impugned order should be supported. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the petitioner has claimed for an order of pre-emption in respect of the land in case as mentioned in Schedule Ka(2) of the application on the ground of co-sharership and vicinity. On discussing the evidence on record, the learned Trial Judge has observed that there is no evidence either oral or documentary in support of the claim for vicinity and as such, though the petitioner has raised the ground of vicinity for pre-emption, the learned Trial Judge has observed that the petitioner has failed to prove the ground of vicinity at all. So, the ground of vicinity has been set at rest by holding that the petitioner has failed to show that he has land adjoining the land in case as mentioned in Schedule Ka(2) of the suit property. So far as the ground of co-sharership for pre-emption is concerned, the petitioner has examined himself as P.W.1 and it is his specific contention that the proforma opposite party was the owner of the scheduled property mentioned in Schedule Ka to the application and such plot in case appertains to R.S. Khatian No.540/2003, Hal Khatian No.103 and Plot No.967 measuring 27 decimals of land previously owned by the proforma opposite party. The petitioner has contended that he purchased 8 1/2 decimals of land from Ka Schedule property by a Deed of Sale dated May 13, 1991 by a registered deed and the said sale-deed has been marked Ext.1 on admission and such purchased property of the petitioner has been described in Schedule Ka(1) of the application. The petitioner has contended that the opposite party no.1 has also purchased 6 decimals of land from the same vendor, the opposite party no.2 by a registered deed of sale dated May 27, 1991 at a consideration of Rs.20,000/-. Upon analysis of the evidence on record and on consideration of the decision of this Hon 'ble Court in 1990(2) CLJ 378, the learned Trial Judge has observed that the petitioner was not a cosharer of the land in question. The Appellate Court has also come to the same finding by analysis of the evidence and thus, he has observed that the petitioner has failed to show that he is a co-sharer of the plot in case. The learned Lower Appellate Court has discussed the evidence in details and thus, he has concluded that if the schedule of the land in case is compared with the contents of the deed of purchased by the appellant / petitioner herein as Ext.1, it would appear that the original Jama had been split up and as such, the appellant / petitioner is not at all a co-sharer of the land in case. Thus, I find that both the Courts below have analysed the evidence and have come to the same conclusion that the appellant / petitioner is not a co-sharer of the land in case. Beside above observations, if the schedule of the land in case is compared with the other portion of the properties as described in Schedule Ka and Ka(1) of the case vis-a-vis the sale deed, Ext.1 it will appear that the proforma defendant had sold his land bearing Plot No.967 by making separate plots with specific boundaries by describing length, breadth, etc. The deed Ext.1 indicates that the Jama had been split up. Under the circumstances, when a plot of land is sold to different persons with specific demarcation, the jointness of the land in case does not exist. Consequently, the Jama was also split up. The word 'co-sharer of a raiyat in a plot of land ' has been defined in Section 2(6) of the West Bengal Land Reforms Act and according to this definition, the 'co-sharer of a raiyat in a plot of land ' means a person, other than the raiyat, who has an undemarcated interest in the plot of land along with the raiyat. In the instant case, as observed above the plot No.967 of the original owner opposite party no.2 had been sold by him in different plots with specific demarcation and such portions of the plots, I find, had been sold in the same month meaning thereby the plot had been demarcated and thereafter, sold to different persons with specific boundaries. There may occur delay in the registration in respect of a portion of the plot on various reasons after proper demarcation. So, the plot of land in case cannot be stated as an undemarcated plot of land in case and accordingly, it cannot be stated that the petitioner has acquired interest in an undemarcated plot of land along with the raiyat. Accordingly, I am of the view that the petitioner does not come within the category of 'co-sharer of a raiyat in a plot of land '. Accordingly, I am of the view that both the Courts below have come to the concurrent findings correctly to the effect that the petitioner is not a co-sharer of a raiyat in a plot of land. Mr. Amitava Pain, learned Advocate appearing for the petitioner has submitted that both the Courts below have committed wrong in arriving at the conclusion holding that the petitioner is not a co-sharer. He has contended that from the schedule of the land in case as described in Schedule Ka(2) with the other description of the property as mentioned in Ka and Ka(1), it would appear that the petitioner became the co-sharer of land in case by purchase and his purchase being prior to the purchase of the opposite party no.1 and since a portion of the plot of land had been purchased by him, he (petitioner) became a co-sharer by a deed dated May 13, 1991. The purchase of the pre-emptee from the same vendor from the same plot of land in case being later, the petitioner is entitled to get pre-emption and as such, the findings of the Courts below should be set aside. With due respect to Mr. Pain, I am of the view that such submission cannot be accepted in view of the observations made earlier. In that view of the matter, I am of the opinion that both the Courts below have come to a correct finding on the basis of evidence on record. There is no perversity at all in the impugned order. In exercising the jurisdiction under Article 227 of the Constitution, the concurrent findings based on evidence should not be set aside. Accordingly, I am of the view that there is no scope of interference with the impugned order. The application fails to succeed and is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking. ;