Ishan Chandra Das, J. - (1.) HEARD learned Advocate for the parties.
(2.) IN the instant revisional application under Article 227 of the Constitution of India, the present petitioner while assailing the Order No. 34 dated 11th December, 2008 passed by the learned Civil Judge (Junior Division), Ranaghat, Nadia in Misc. Case No. 30 of 2005 and the order of the learned District Judge, Nadia in Misc. Appeal No. 48 of 2009 upholding such order, states that the plot in dispute being R.S. Plot No. 944 measuring 22 decimals originally belonged to one Surendra Kirtania, one Manoranjan Sarkar and one Chittaranjan Sarkar having 1/3rd share each and their names were duly recorded in R.S. Khatian No. 785. Since the share of Surendra Kirtania was jointly possessed by himself and his brother, said 1/3rd share of Surendra Kirtania was subsequently transferred by registered Deed of Gift in favour of Mukunda Behari Kirtania. The petitioner of Misc. Case No. 30 of 2005 purchased 1/3rd share of Mukunda Behari Kirtania by registered sale deed dated 19th January, 2005 and 1/3rd share of Chittaranjan Sarkar by another sale deed dated 4th June, 2004 and became the owner of 2/3rd share in Plot No. 944. The remaining 1/3rd share of original owner, Manoranjan Sarkar was sold out to the opposite party of Misc. Case No. 30 of 2005 (i.e. Sushma Sarkar, the petitioner herein) by registered sale deed dated 10th June, 2005. Said Sushma Sarkar, being the opposite party before the learned trial court, became the owner of 1/3rd share in the disputed plot. Since the transfer of 1/3rd share was made in favour of Sushma Sarkar, a stranger purchaser, the original petitioner i.e. Parimal Mallick (the opposite party herein) filed the application before the learned trial court for pre -emption under Section 8 of the West Bengal Land Reforms Act, 1955 upon observing certain formalities with regard to deposit of consideration and further sum of 10% of the amount as prescribed by law. Learned trial court while disposing of the application under Section 8 of the West Bengal Land Reforms Act, 1955 (i.e. Misc. Case No. 30 of 2005) allowed the prayer for pre -emption on the grounds of co -sharer as well as the contiguous land owner in the alternative and being aggrieved by such order of pre -emption, the opposite party (i.e. the petitioner herein) preferred an appeal being Misc. Appeal No. 48 of 2009 and learned District Judge, Nadia while disposing of the appeal upheld the order of the learned trial court and compelled the present petitioner to prefer the revisional application since the findings of the courts below were detrimental to her interest. Mr. Hiranmoy Bhattacharyya, learned Counsel for the present petitioner (Smt. Sushma Sarkar) submitted that a co -sharer or contiguous tenant may pre -empt 'if a portion or share of plot of land of a Raiyat' is transferred by sale in favour of a stranger purchaser affecting the interest of the co -sharer subject to certain restrictions provided by Section 8 of the West Bengal Land Reforms Act, 1955. Clarifying the provisions of Section 8 of the Act of 1955 (as amended upto date), he laid emphasis on the words 'if a portion or share of a plot of land of a Raiyat' and pointed out with reference to the averments in Paragraph 11 of the application under Section 8 of the West Bengal Land Reforms Act (at page 3 of Annexure 'P') that the said pre -emptor should not claim himself to be the co -sharer of the plot in question particularly when his vendor transferred 2/3rd share in the plot showing specific boundary in the deeds. Further clarifying the definition of co -sharer as per Section 2(6) of the Act of 1955, he urged that the 'co -sharer of a Raiyat in a plot of land means a person, other than the Raiyat who has un -demarcated interest in the plot of land along with the Raiyat'. Accordingly, he opined that the opposite party herein could not get pre -emption of the portion of the plot transferred in favour of his client, Sushma Sarkar though he admitted with all fairness that his client was a stranger purchaser in respect of the property in question. To advance his argument, learned Counsel for the petitioner urged that the property was not affected by metes and bounds in between the opposite party and the vendor of the present petitioner in terms of Section 14 of the West Bengal Land Reforms Act, 1955 and further opined with a confident tune that mere demarcation by mentioning the topography of a portion of the plot in the deed should not be treated as a partition by metes and bounds. Accordingly, he submitted that the pre -emptor cannot claim himself to be a contiguous land owner on the strength of a unilateral document since it does not bind the other parties. In this context, to fortify his argument, he relied on a decision of this court in the case of Subal Mondal vs. Gopal Chandra Mondal reported in : (2014) 1 CHN 706.
(3.) HIS learned counterpart, on the other hand, expressed a contrary view in the matter. He submitted that his client (the opposite party herein) could succeed on the ground of co -sharer of the plot in question though the deeds executed in his favour by his vendors showing topography of the portion he purchased since mere show of topography of the purchased portion of his client cannot be construed as other than a co -sharer of the pre -emptee. He also urged that his client i.e. the opposite party herein should not be denied pre -emption either on the ground of co -sharer or on the ground of contiguous landowner.;