KRISHNAPADA BISWAS Vs. USHA RANI NASKAR

JUDGEMENT

(1.) THIS Rule was obtained against an appellate order dated 14th May, 1973 dismissing an appeal preferred against an order dismissing an application for pre-emption. The facts in short are as follows : -The petitioner filed an application under section 8 of the West Bengal land Reforms Act for pre-empting 11 decimals of lands in Dag No. 729 of khatian No. 371 of mouza Ganga Jowara, P. S. Sonarpur which the opposite party acquired on transfer from the original owners by a conveyance dated 3rd November, 1971. The ground for pre-emption was that the land transferred was contiguous to the land of the petitioners and accordingly they were entitled to the said pre-emption. The learned Munsif held that the entire holding was transferred by the impugned sale and accordingly section 8 is not applicable. In this view of the matter the application was dismissed. An appeal was preferred and the Appellate Court found in agreement with the trial Court that: section 8 of the land Reforms Act did not apply to the impugned transfer as the section indicates that there can be no preemption when the entire holding has been sold. The appeal was accordingly dismissed. The propriety of the order has been challenged in this Rule.

(2.) MR. Bankim Chandra Roy, learned advocate appearing for the petitioners has submitted that on a true interpretation of section 8 of the Land Reforms act it would appear that right of preemption would be available even if the entire holding is transferred. The relevant portion of the section, is as follows : -

(3.) IT would appear that right of pre-emption has been given to a co-sharer raiyat of a holding as also to any raiyat possessing land adjoining such holding. Both the cases are governed by the earlier portion of the section which provides that such right will be exercisable when a portion or share of holding is transferred to any other person other than the co-sharer in the holding. The pre-emption, as provided in section 8, will be available in respect of the said portion or share of the holding. Such being the provisions of the section, it is clear that when a holding in its entirety is transferred the provisions of section 8 would be inapplicable as the section is confined only to those cases where a portion or share of holding of a raiyat is transferred. The Courts below accordingly were correct in their interpretation of the section 8 in holding that the application was not maintainable under the said section which in terms did not apply to a transfer of the entire holding. The application accordingly fails and rule in the discharged. There will be no order as to costs.