- (1.) In this application under Article 227 of the Constitution of India the judgment and order dated 19th February, 2013 passed by the Learned 1st Additional District Court at Nadia in Misc. Appeal no.47 of 2010 affirming the judgment and order dated 30th June, 2010 passed by the Learned Civil Court (Junior Division) at Tehatta, Nadia in Misc. Case no.16 of 2008 is under challenge.
(2.) Sri Biswarup Biswas, Learned Counsel appears on behalf of the petitioners. Sri S.N.Biswas, Learned Counsel appears on behalf of the opposite parties. By the order impugned dated 19th February, 2013 the Learned Appellate Court considered the following issues:- a) That the petitioners are the pre-emptees/defendants/appellants in Misc. Case no.16 of 2008 and in Misc. Appeal No. 47 of 2010 respectively. The opposite parties are the plaintiffs/pre-emptors. b) That the case of the petitioners is that the suit plot no.1623 comprises an area of two acres of land belonging to two brothers namely, Gobinda Chandra Biswas and Upendranath Biswas. Each of the brothers have eight annas share in the suit plot. Their names were recorded in the R.S. record of rights. Upendranath died leaving behind three sons and two daughters. The five legal heirs of Upendranath as aforesaid inherited 20 decimals of land each in Upendranath's original share of one acre. Out of the legal heirs of Upendranath, three of them, namely, two sons Bipad Bhanjan Biswas and Prahlad Biswas and daughter namely, Makhanbala died. The plaintiff no.1/pre-emptor is the son of Bipad Bhanjan and the plaintiffs no.2 & 3 are the son and widow. The plaintiff no.4/pre-emptor is the daughter of the deceased Prahlad. All claim to be co-sharers in the suit plot. c) The petitioners have further alleged that the proforma defendant nos.3 & 4 before the Learned Trial Court, one Rohitosh Biswas and Buddhadeb Biswas sold out 8 decimals of land in the suit plot in favour of opposite parties no.1 & 2. Such sale was transacted showing excess consideration money of Rs.48,000. However, according to the petitioners only Rs.12,040 was transacted. The actual monetary value of the transaction was suppressed. d) That the petitioners all of a sudden acquired knowledge of the filing of Title Suit no.68 of 2002 in respect of 21 decimals of land before the Learned 1st Civil Court, Senior Division at Krishnanagar. The petitioners have also alleged that the sale deed was executed without serving any notice on them under Section 5 of the West Bengal Land Reforms Act (for short the WBLR Act). e) The defendant nos.1 & 2 filed their written objection before the Learned Trial Court stating, inter alia that the opposite parties no.3 & 4 sold out their entire demarcated portion of the suit plot in respect of which the petitioners were not the co-sharers. In such view of the matter the it is alleged that no pre-emption proceeding can lie. They prayed for dismissal of the Misc. case. f) The Learned Trial Court upon consideration of the evidence was pleased to come to the conclusion that a case in favour of preemption has been made out by the petitioners. Accordingly, Misc. case no.16 of 2008 was allowed. Challenging the order of the Learned Trial Court appeal was filed by the pre-emptees. The Learned Trial Court also found that admittedly the opposite parties no.3 & 4 sold their entire 8 decimals of land in the suit plot to the opposite parties no.1 &2. g) The Ld. Appellate Court after noticing the language of Section 8 of the WBLR Act (as amended) and considering the law laid down in the matter of Sribas Chandra Biswas & Ors. Vs. Jiban Krishna Biswas, 2012 2 WbLR 245 was pleased to, inter alia, hold that the definition and status of a co-sharer of a Raiyat in the WBLR Act in respect of an undivided plot of land a portion of which has been sold to a stranger purchaser is entitled to claim pre-emption under Section 8 of the WBLR Act. h) On a careful perusal of the certified copy of the sale deed marked Exbt.1 the Learned Appellate Court found in the Schedule of the said deed that the suit plot is not demarcated. The Learned Court also found that there is no evidence to show that the suit plot has been lawfully partitioned. Out of the total area of the suit plot being two acres out of which one acre of land belongs to the purchaser of the transferors namely, opposite parties no.3 & 4 has been transferred in "undemarcated, undivided and unpartitioned" condition to the opposite parties no.1& 2. i) In the backdrop of the aforementioned discussion the Learned Appellate Court found no reason to interfere with the order of the Learned Trial Court allowing pre-emption. The Misc. case was accordingly dismissed.
(3.) Being aggrieved by such order of dismissal, the present petitioners have filed CO 1569 of 2013 before this Court.;