SUBAL MONDAL Vs. GOPAL CHANDRA MONDAL

JUDGEMENT

(1.) The petitioner pre-emptee has filed this application under Article 227 of the Constitution of India challenging order dated 19th of May, 2012 passed by learned Additional District Judge 14th Court, Alipore, District 24 Parganas (South) in Misc. Appeal No.209 of 2010 by allowing the application for pre-emption after setting aside the order No.81 dated 15th of March, 2010 passed by learned Civil Judge, (Junior Division) 1st Court, Baruipur in Misc. Case No.1 of 2004.

(2.) The admitted position of the case is that one Akshay Kumar Mondal was the absolute owner of the property measuring 33 decimals comprising Bastu and Pukur in Dag No.3720 and 5695. He sold 10 decimals demarcated lands in those two plots to one Sankar Nath Mondal and also 8 decimals demarcated land in those two plots to pre-emptor Gopal Chandra Mondal by two separate kobalas both executed and registered on 9th of March, 1963. He also sold his remaining portions of demarcated lands to other purchasers namely Nepal Mondal and Bhopal Mondal. Subsequently, said Sankar Nath Mondal sold out demarcated portion of 3 1/2 decimals of land in two plots out of his purchased 10 decimals of land to the pre-emptee Subal Mondal by a registered kobala dated 25th of August, 2003 . Gopal Chandra Mondal filed an application for pre-emption (Misc. Case No.1 of 2004) claiming pre-emption on the ground of co-shareship as well as vicinage. Said application was opposed by the present petitioner pre-emptee alleging that as Akshay Kumar Mondal sold demarcated portion of lands to the purchasers including Sankar Nath Mondal and Gopal Chandra Mondal, neither of them was a co-sharer of the other. It was further alleged that present O. P. pre-emptor Gopal Chandra Mondal was not a co-sharer of Sankar Nath Mondal and that as the well demarcated portion was sold to Sankar Nath Mondal he had no co-sharer and hence Gopal Chandra Mondal cannot claim any pre-emption.

(3.) After contested hearing learned trial court rejected said application for pre-emption on the ground that as Akshay Kumar Mondal, the original owner, sold out well demarcated portions of land to different persons including pre-emptor Gopal Chandra Mondal and pre-emptee's vendor Sankar Nath Mondal, Gopal Chandra Mondal was not a co-sharer of Sankar Nath Mondal. He also held that Gopal Chandra Mondal was not also entitled to claim pre-emption on the ground of vicinage.