TARUN KUMAR GUPTA, J. - (1.) THE pre emptee has filed this application under Article 227 of the Constitution of India challenging the order dated 15th of December, 2010 passed by learned Additional District and Sessions Judge, Fast Track third Court, Purba Medinipur at Tamluk in Misc. Appeal No.3 of 2009 /18 of 2009 affirming the order of pre emption being No.51 dated 17th February, 2009 passed by learned Civil Judge (Junior Division) 1st Court Tamluk in J. Misc. Case No.28 of 2005.
(2.) THE O.P. pre emptors filed said suit for pre emption under Section 8 read with Section 9 of the West Bengal Land Reforms Act, 1955 (hereafter to be referred as the Act of 1955) alleging that one Satish Chandra Mitra was the original owner of 41 decimals of land of suit plot No.771. Three decimals of land of said plot was acquired by the State Government. After death of Satish Chandra Mitra his legal heirs sold out entire 38 decimals of land to the pre emptors Sri Nata Krishna Parua and Sri Srikrishna Parua and their other two brothers namely Bata Krishna Parua and Harekrishna Parua by several kobalas. The four brothers were in joint possession of the suit plot 771. One of the co sharers namely Harekrishna sold out 5.5 decimals of suit plot to the pre emptee Shyamali Bera being stranger purchaser by a kobala dated 30th of March, 2005 which was registered on 19th September, 2005. No notice under Section 5 of the Act of 1955 was served upon the pre emptors being co sharers of the suit plot. Though the consideration money was noted in said kobala as Rs.10 lakhs but the actual consideration money passed was only Rs.4 lakhs. Accordingly the pre emptors prayed for pre emption of the suit land after depositing Rs.4 lakhs together with 10% totaling Rs.4,40,000/ in the court below. The present petitioner pre emptee contested said pre emption case by filing a written objection denying material allegation of the preemption petition and contending inter alia that her vendor Harekrishna Parua was in possession of his share of land after a partition between the co sharers and sold out the suit land measuring about 5.5 decimals on receipt of a consideration money of Rs.10 lakhs after pre emptor 's refusal to purchase said land at the market price. The vendor of the preemptee also gifted 0.17 decimals of land of the suit plot to the pre emptee through a deed of gift dated 16th of February, 2006. The vendor Harekrishna 's name was recorded in the record of right and after purchase the name of the pre emptee was recorded in the record of right. The pre emptors were no longer co sharers of the suit plot after the partition, and rather the pre emptee became a co sharer of the same on the strength of said deed of gift dated 16.02.2006. The application for pre emption was liable to be dismissed.
(3.) LEARNED trial court allowed the application for pre emption by holding that the pre emptors were co sharers of the suit plot and that no notice of transfer was served upon the pre emptors before selling out the suit land to the pe emptee, third party purchaser. Learned trial court further held that the alleged deed of gift dated 16th of February, 2006 relating to 0.17 decimal of land pertaining to suit plot executed by Harekrishna in favour of the pre emptee was executed just to frustrate the application of pre emption filed on 23rd of November, 2005. Learned trial court further held that the consideration money passed at the time of sale of the suit property was Rs.10 lakhs and that the pre emptors would be entitled to get an order of pre emption only after depositing the balance consideration money together with 10% thereupon. Said order of pre emption dated 17th of February, 2009 was challenged by the preemptee in the appeal court. Said Misc. appeal being No 3 of 2009 /18 of 2009 was dismissed on contest. Hence is this revisional application.;