JUDGMENT
Soumitra Sen, J.
1. This application under Article 227 of the Constitution is directed against the judgment and order dated 16th January, 2002 passed in Misc. Appeal No. 11 of 2000 Abdul Gofur v. Bahastulla Sk. By the impugned judgment the Misc. appeal was allowed and the order of the learned Civil Judge, Junior Division which was under challenge in the misc. appeal was set aside.
2. The opposite parties filed an application under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act), exercising his right of pre-emption against the petitioner. By an order dated 18th January, 2000 passed by the learned Civil Judge, Junior Division, Berhampur, Murshidabad, the said application under Section 8 being Misc. Case No. 16 of 1994 was rejected. Before the Lower Appellate Court the question arose as to whether the opposite party the could maintain an application under Section 8 for pre-emption on the ground of possessing land adjoining the plot of land which is the subject-matter of dispute.
3. As far as, finding of fact is concerned there is not dispute that the land belonging to the petitioner are comprised in plot Nos. 765, 772, 773, 776 and 779 measuring about 4 decimal of land are all adjoining land. It is also an undisputed finding of fact that the opposite party is the owner in respect of certain portions of land in plot Nos. 773 and 774.
4. The petitioner was stated to be a stranger purchaser and such claim of the opposite party has been accepted as a finding of fact by the Lower Appellate Court. These facts are not assailed before me. The only point on which this application is sought to be pressed on behalf of the petitioner is that the opposite party being a co-owner of a part or portion of the land as mentioned above and as there has been no partition amongst his co-owners, he cannot claim to be exclusive owner of the land in question and therefore, he cannot maintain an application under Section 8 of the West Bengal Land Reforms Act.
5. Before dealing with the law in the subject and the various decisions relied upon by the parties the scope and purport of Section 8 is required to be understood in the correct perspective. For the sake of convenience section 8 is set out hereunder:
Right of purchase 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 bargadar 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 transfer, 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 or a 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 other 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 a 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 this 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 heba-bill-ewaz, or
c) a(…) mortgage mentioned in Section 7, or
d) a transfer 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 transfer, 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 11B.
(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 be 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 stage at which it was so transferred and shall be disposed of in accordance with the provisions of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972.
6. From the aforesaid provision it is clear that in order to claim a right of pre-emption the pre-emptor should either be the co-sharer of a portion of the land which is sought to be transferred or owner of a part or portion of an adjoining land. The object and purpose of the aforesaid provision is to prevent fragmentation of land holding and to ensure that the land in question remains within the co-sharers and the adjoining land owners also get the right to acquire such land which is intended to be transferred by exercising the right of pre-emption.
7. Having regard to the nature of arguments advanced before me the factual aspect which was gone into before the Trial Court as well as the Lower Appellate Court need not be gone into.
8. In support of the proposition that without establishing exclusive possession of land and in case of co-sharers it must be shown that there had been a partition amongst the co-sharers so as to maintain an application for pre-emption, the decision of Rekharani Maity v. Jagatpati Sashmal reported in 1995 WBLR (Cal) 263 was relied upon.
9. In the said decision the learned Judge had relied upon an earlier judgment of this Court of Kedarnath Panchadhoyee and Ors. v. Nagendra Nath Mahapatra and Ors. reported in CLJ 395. In the said case of Rekharani (supra) the factual distinction with the present case is that as on the date of filing of the application for pre-emption the pre-emptee had also become a co-sharer in the disputed holding or plot. Therefore, the pre-emptee cannot be considered to be a person other than a co-sharer as contemplated in Section 8 of the said Act.
10. The decision of Saranan Mondal v. Bejoy Bhasan was also relied upon on behalf of the petitioner in support of the proposition that before making an application under Section 8 of the said Act, it is incumbent on the petitioner to show that there was transfer of either a portion or share of a holding of the raiyat.
11. In the instant case, it is an admitted position that the petitioner is a stranger purchaser. Therefore, the transfer in favour of the petitioner is an admitted position and cannot be disputed.
13. On behalf of the respondents the decision of Bula Kundu v. Nirmal Kumar Kundu was relied upon in support of the proposition that in an application for pre-emption on the ground of adjoining ownership it is not necessary that the applicant must be the full owner of the adjoining holding. Even a co-sharer of the adjoining holding may apply for pre-emption. In the decision of Bula Kundu (supra), the decision of Rekharani (supra) has been discussed and distinguished.
14. I am fully in conformity with the reasoning given by the learned Judge in the decision of Bula Kundu with regard to the scope and ambit of Section 8 of the said Act. From the language of Section 8 it is clear that any raiyat possessing land adjoining the plot of land which is intended to be transferred may claim pre-emption. There is no necessity of the adjoining land owner to have a common boundary line with regard to the portion of the plot of land which is sought to be trasferred.
15. This position has been made clear in the decision of Ishan Ghatak v. Sasadhar Maity reported in 1982 CWN page 182.
16. The interpretation given in the judgment of Bula Kundu (supra) and in the case of Ishan Ghatak (supra) appears to be logical. If the object and purpose of Section 8 is required to be fulfilled then any co-sharer of an adjoining land can apply for pre-emption. Unless such reasoning is accepted it would render the purpose of Section 8 nugatory. There may be a situation where the adjoining land is held by more than one person but the other co-owners may not want to claim the right of pre-emption in that case the co-owner who intends to exercise his statutory right would be debarred from claiming such a right if his right is exercisable only in case of partition amongst his co-owners signifying his exclusive possession of a portion of the adjoining land.
17. The Judgment of Amal Kumar Giri v. Nani Gopal Paira reported in 2004 (3) CHN 631 has held contrary to the decision of Bula Kundu and has relied upon the decision of Rekharani (supra).
18. It appears that before the learned Judge the decision of Bula Kundu was not relied upon. In the said case of Amal K. Giri it also appears that the pre-emptee was a co-sharer of the plot in question. Therefore, the petitioners in the said case could not have maintained an application for pre-emption.
19. The judgment of Bhadreswar Bera v. Mathura Mohan Shaw reported in 2004 (4) CHN 349, has also held in same line with that of the decision of Bula Kundu.
20. For the reasons as aforesaid, I am of the opinion that this application is without any merit and the same is accordingly dismissed. There would be no order as to costs.
21. Urgent xerox certified copy of this order, if applied for, be given to the parties expeditiously.