This appeal has been filed against the judgment of the learned Single Judge of the High Court of Calcutta. The learned Single Judge has denied the right of pre-emption to the appellant who is a contiguous land owner. The land in question is a plot measuring 3.755 decimal. It was sold by a common vendor by the name of Bijindra Burman, who had earlier sold a plot of land measuring 2.060 decimal to the appellant. Bijindra Burman was entitled to sell his entire plot measuring 3.775 decimal to the respondent Mani Pal @ Kaltu Pal. He did so without first offering this plot to the appellant Chhana Rani.
2. There is no dispute about the fact that the appellant Chhana Rani is the owner of the contiguous piece of land, which she earlier purchased from Bijindra Burman. There is also no dispute about the fact that she is not a co-sharer of the plot in question, which is the subject matter of the present proceedings. That Section 8 of the West Bengal Land Reforms Act, 1955 of the confers on a contiguous owner on a raiyat, who is a contiguous owner, the right to pre-empt and purchase a land which is being sold, is not disputed.
3. The appellant applied under Section 8 of the West Bengal Land Reforms Act, 1955 to the Civil Judge (Junior Division) Mathabhanga as a contiguous tenant. She also claimed to be a co-sharer. This capacity as a co-sharer is not relevant any more since admittedly she is not a co-sharer in respect of the land in question. The Civil Judge (Junior Division) found that the appellant is an owner of contiguous land in question. That the vendor Bijindra Burman did not give due notice of the proposed sale transaction to the appellant. She learnt of it from others. The trial Court, therefore, allowed the application and conferred the right, title and interest of the land in question on the appellant along with possession of the suit land.
4. The Appellate Court reversed the aforesaid order on the ground that the appellant is not a co-sharer of the land and further that the vendor Bijindra Burman did not sell a portion or share of the land but has sold the entire land in question.
5. The High Court has agreed with the Appellate Court and has held likewise. Hence, this appeal.
6. Mr. Soumya Chakraborty, learned counsel appearing for the appellant, pointed out that the finding of the High Court is entirely mis-directed, in that the High Court has denied the appellant's claim on the sole ground that the appellant is not a co-sharer of the land in question and the vendor has not attempted to sell a portion of the said land but has admittedly purported to sell the entire land. According to Shri Chakraborty, the High Court fell into the error because it ignored the fact that the appellant had claimed the land as contiguous owner of the land and a contiguous owner of land also has a right to assert pre-emption. Section 8 reads as follows:
"8. Right of purcahse by co-sharer or contiguous tenant.- (1) If a portion or share of a plot of land of a raiyat is transferred to any person other than a co-sharer of a raiyat in the plot of land, the bargardar in the plot of land may, within three months of the date of such transfer, or any co-sharer of a raiyat in the plot of land may, within three months of the service of the notice given under sub-section (5) of section 5, or any raiyat possessing land adjoining such plot of land may, within four months of the date of such tranfer, apply to the Munsif having territorial jurisdiction, for transfer of the said portion or share of the plot of land to him, subject to the limit mentioned in section 14M, on deposit of the consideration money together with a further sum of ten per cent of that amount:
Provided that if the bargadar in the plot of land, a co-sharer of raiyat in a plot of land and a raiyat possessing land adjoining such plot of land apply for such transfer, the bargadar shall have the prior right to have such portion or share of the plot of land transferred to him, and in such a case, the deposit made by others shall be refunded to them:
Provided further that where the bargadar does not apply for such transfer and a co-sharer of a raiyat in the plot of land and a raiyat possessing land adjoining such plot of land both apply for such transfer, the former shall have the prior right to have such portion or share of the plot of land transferred to him, and in such a case, the deposit made by the latter shall be refunded to him:
Provided also that as amongst raiyats possessing lands adjoining such plot of land preference shall be given to the raiyat having the longest common boundary with the land transferred.
(2) Nothing in this section shall apply to-
(a) a transfer by exchange or by partition, or
(b) a transfer by bequest or gift, or hiba-bil-ewaz, or
(c) a mortgage mention in section 7,
(d) a tranfer for charitable or religious purposes or both without reservation of any pecuniary benefit for any individual, or
(e) a transfer of land in favour of a bargadar in respect of such land if after such tranfer, the transferee holds as a raiyat land not exceeding one acre (or 0.4047 hectare) in area in the aggregate.
EXPLANATION.- All orders passed and the consequences thereof under sections 8,9 and 10 shall be subject to the provisions of Chapter IIB.
(3) Every application pending before a Revenue Officer at the commencement of section 7 of the West Bengal Land Reforms (Amendment) Act, 1972 shall, on such commencement, stand transferred to, and disposed of by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every such application shall be dealt with from the setage at which it was so transferred and shall be disposed of in accordance with the provision of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972."
7. Section 8 confers a right of pre-emption on a bargardar that is a tenant of the land, or a co-sharer of the raiyat who owns the land and on any other raiyat possessing land adjoining such plot of land. One of the conditions on which a right of pre-emption may be claimed is where a portion or share of land or any other raiyat is transferred to any person other than a co-sharer of a raiyat in the plot of the land. That is to say, if a land is held by two co-sharers and one of the co-sharers seeks to transfer a portion or share belonging to him to another person, the other co-sharer may claim a right of pre-emption. But this, however, does not exhaust the entire section. A similar right of pre-emption is also conferred on a raiyat, who possesses an adjoining plot of land, This is the appellant's case. There is no dispute that the appellant is a raiyat possessing adjoining plot of land and was entitled to assert his right of pre-emption. In fact he was rightly allowed the ownership of the land in question by the trial Court, since it was found the vendor did not give due notice of sale of the land to the appellant and, in fact, did not wish to sell the land to the appellant. This aspect of the matter has been completely overlooked by the High Court
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, which has decided the case only on the basis that the vendor did not transfer a portion or share of the land in question and the appellant was not a co-sharer. 8. In view of the undisputed possession that the appellant is a raiyat, who held adjoining plot of land to the land in question, the judgment of the High Court is liable to be set aside and is, accordingly, set aside. The order of the trial Court is hereby restored. The right, title, interest and possession of the suit land in question acquired by Mani Pal by virtue of a Registered Sale Deed No.881 dated 28.02.2000, shall vest with the appellant. The respondent Mani Pal shall also deliver the possession of the said land to the appellant within a period of six months from today. 9. The appeal is allowed accordingly.