- (1.) In this application under Article 227 of the Constitution of India the order dated 17th April, 2010 passed in Misc. (Pre-emption) Appeal No. 5 of 2000 passed by the Ld. Additional District Court, Contai, Paschim Medinipur allowing the appeal and thereby reversing the judgment and order dated 26th June, 2010 passed by the Ld. Civil Court (Junior Division) at Contai dismissing Misc. (Preemption) Case No. 60 of 1991 is under challenge.
(2.) Appearing for the petitioner/pre-emptee Shri Hiranmoy Bhattacharya, Ld. Counsel has argued as follows:-- "a) That the preemption suit plot is numbered as 1706 with a total measurement of 83 decimals. The subject matter of preemption is 33 decimals and the owner of the suit plot is one Sudhangshu. b) The said two plots of land under dispute were transferred by way of two registered deeds. The present Opposite Party (for short OP) pre-emptor sought pre-emption on the ground of being an adjoining owner and not as a co-sharer. According to Sri Bhattacharya, a co-sharer will have interest only if an undemarcated area of land is sold. Since the original owner sold demarcated portions of land, no preemption can be claimed on the basis of co-sharership. c) It is the further contention of Shri Bhattacharya that since specific portions of land have been transferred, the present OP cannot have any undemarcated interest in the land. Shri Bhattacharya contends that the pre-emptor cannot be a co-sharer in the suit land. d) Drawing the attention of this Court to the West Bengal Land Reforms Act, 1955 (for short W.B.L.R. Act), Shri Bhattacharya submits that Section 14 of the W.B.L.R. Act does not apply in the facts and circumstances of this case. Drawing the attention of this Court to the definition of co-sharer as appearing at Section 2(6) of the W.B.L.R. Act, Sri Bhattacharya points out that there can be no co-sharership claimed in respect of the suit plot because demarcated portions have been sold out by the said Sudhangshu. According to Sri Bhattacharya, no right of preemption accrues when the entire plot is sold out. He submits that the Ld. Appellate Court failed to arrive at any such finding while passing the order impugned dated 17th April, 2010. e) In support of his arguments Sri Bhattacharya relies upon (Smt. Labanya Bala Debi v. Smt. Parul Bala Debi & Ors., 0 77 CalWN 272 ) to make the point that in respect of sale of a demarcated land there can be no claim to preemption on the ground of co-sharership. Ld. Counsel also relies upon (Amal Kumar Giri v. Nanigopal Paira, 2004 1 WBLR 812)."
(3.) Per contra, Sri P.B. Sahoo, Ld. Counsel appearing for the OP/pre-emptor has argued as follows:-- "i) That the present petitioner is the subsequent transferee of the suit property. According to Sri Sahoo, the present petitioner has no locus to maintain the present application. Shri Sahoo points out that the petitioner/subsequent transferee cannot be an aggrieved person and if any person is aggrieved then he is the preemptee alone. However, the preemptee has not filed any application challenging the order of the learned Appellate Court dated 17th April, 2010 and hence the present application by the subsequent transferee is not maintainable. ii) In support of his above submissions Sri Sahoo relies upon the decision, 2008 4 SCC 219. Taking this Court to the facts of that case Sri Sahoo points out that since the State did not prefer any appeal, the appeal filed by the private defendant was held to be not maintainable. iii) Ld. Counsel further asserts that the right of the present petitioner/subsequent transferee cannot have any basis without the claim of the subsequent transferee being conclusively established before the appropriate forum. However, in the facts of the present case the original preemptee has neither contested before the Ld. Appellate Court and nor challenged the said order before this Court. In such circumstances the claim of the subsequent transferee cannot be held to be maintainable. iv) In support of his abovenoted submission Sri Sahoo relies upon Section 9(2) of the W.B.L.R. Act. He argues that in terms of Section 9(2) of the W.B.L.R. Act the right of the subsequent transferee has been made dependent on the right of the original preemptee. In the facts of the present case the stand of the preemptee stood demolished and therefore no further right can accrue in favour of the subsequent transferee. v) In support of his abovenote submission Shri Sahoo relies upon the following decisions (Tarapada Karati v. Sudhamoy Dolui & Ors.,1953 CalWN 678); (Nishi Kanta Das v. Jnanendra Nath Mondal & Ors.,1957 CWN 253); (Santosh Sardar & Anr. v. Surendra nath Karmakar,73 CWN 852); (Ghokalangaswami Idol Thr. R.N. Pillai v. Ganapragasm (dead), 2008 4 SCC 219 (Basanti Bala Sarkar v. Ramkrishna Mondal & Ors.,1985 2 CalHN 232) & (Brajendra nath Patra v. Asis Kumar Patra & Ors.,1991 1 CalHN 11). vi) Sri Sahoo makes the additional point that there is no finding by the Ld. Appellate Court regarding transfer of the entire plot of land.";