BHARAT BHUSAN RAY Vs. NIRMAL KANTI CHAKRABARTI

JUDGEMENT

(1.) This Rule arising out of a proceeding for pre-emption under Section 8 (1) of the West Bengal Land Reforms Act, has been referred to the Division Bench by a learned single Judge of this Court in view of a new point raised at the hearing of the Rule relying upon a Bench decision of this Court in the case of Rukmini Debi v. Sm. Mihirbala Sarkar . The two Courts below having allowed the application for pre-emption concurrently the pre-emptee is the petitioner before us.

(2.) The opposite party Nirmal Kanti Chakraborty, claiming himself to be a co-sharer by purchase of a holding comprised of 17 decimals of land in Plot No. 238/487 of Khatian No. 419 of Mouza Baruihuda, P. S. Krishnagar, filed an application fot pre-emption under Section 8 (1) of the Land Reforms Act for pre-empting a sale of 8 1/2 decimal of the aforesaid plot by his co-sharer, the opposite party No. 2 to the petitioner Bharat Bhusan Roy on Feb., 13, 1974. He claimed pre-emption on two-fold grounds of he being a co-sharer raiyat and also on the ground that he possesses land adjoining the land sold to the pre-emptee Bharat Bhusan Roy. In filing the aforesaid application for pre-emption the pre-emptor pleaded that he had not been served with a notice under Section 5 (5) of the said Act as a co-sharer but even then having come to know of the same he is filing the application for preemption.

(3.) It is not disputed that prior to riling of the aforesaid application under Section 8(1) of the Land Reforms Act. the pre-emptor had earlier initiated a proceeding under Section 24 of the West Bengal Non-Agricultural Tenancy Act for pre-empting the very same sale which was registered as Misc. Case No. 49 of 1974. That application, however, failed on contest by the present petitioner when the Court in upholding the objection then raised by the present petitioner found that the land sold constitutes a part of a raiyati holding and, as such, the claim for pre-emption can be entertained not under Section 24 of the West Bengal Non-Agricultural Tenancy Act but under Section 8 (1) of the West Bengal Land Reforms Act.