- (1.) This application is at the instance of the pre-emptor and is directed against the judgment and Order dated August 14, 2012 passed by the learned District Judge, Malda in Misc. Appeal No.7 of 2011 thereby reversing the judgment and order of dismissal of the misc. case passed by the learned Civil Judge (Junior Division), 2nd Court, Malda in Misc. (Pre-emption) Case No.53 of 2008. Now, the question is whether the impugned order should be sustained.
(2.) Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that, while disposing of the misc. appeal arising out of an application under Section 8 of the W.B.L.R. Act, 1955, the learned First Appellate Court has simply discussed the evidence to the extent that the pre-emptor acquired right, title and interest in respect of some plots and that the heirs of Muslim had transferred some portion of the plots in case to the opposite parties of the misc. case. He has simply recorded that the learned Trial Judge has failed to appreciate Section 8 of the W.B.L.R. (Amendment) Act in its letter and sprit so, he has no option left except to take a different view. Accordingly the order of the learned Court bellow is set aside. This being the observations, Mr. Ramdulal Manna, learned Advocate appearing for the petitioners has contended that the judgment and order of the learned Appellate Court is not in conformity with the ingredients as per Section 8 of the W.B.L.R. Act. Much argument has been made on behalf of both the parties on limitation in filing the application for pre-emption and both the parties have referred to some decisions of the Apex Court and of this Court. What I find that the learned First Appellate Court has not discussed at all the material on record in the line of the provisions of Section 8 of the W.B.L.R. Act. The pre-emptor has claimed pre-emption as co-sharer of the land in case; but the learned First Appellate Court did not discuss at all if the pre-emptor is a co-sharer of the raiyat in a plot of land in case or not. This being the position, without going into the details of the matter and the discussion on the question of limitation, I am of the view that I have no other alternative but to set aside the judgment and order passed by the learned First Appellate Court with a direction to hear out the said misc. appeal afresh and to pass judgment and order in consideration of the provisions of Section 8 of the W.B.L.R. Act, 1955. The question of limitation is also kept open for decision by the learned First Appellate Court. Accordingly, the impugned order cannot be sustained. The revisional application is, therefore, allowed. The impugned judgment and order is hereby set aside. The learned First Appellate Court is directed to hear out the appeal again and to dispose of the same in the manner as indicated above. Such exercise must be done within a period of two months from the date of reopening of the Court after the ensuing Puja Vacation. However, there will be no order as to costs.
(3.) Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.;