SUSHMA SARKAR Vs. PARIMAL MALLICK

JUDGEMENT

(1.) HEARD learned Advocate for the parties.

(2.) IN the instant revisional application under Article 227 of the Constitution of India, the present petitioner while assailing the Order No. 34 dated 11th December, 2008 passed by the learned Civil Judge (Junior Division), Ranaghat, Nadia in Misc. Case No. 30 of 2005 and the order of the learned District Judge, Nadia in Misc. Appeal No. 48 of 2009 upholding such order, states that the plot in dispute being R.S. Plot No. 944 measuring 22 decimals originally belonged to one Surendra Kirtania, one Manoranjan Sarkar and one Chittaranjan Sarkar having 1/3rd share each and their names were duly recorded in R.S. Khatian No. 785. Since the share of Surendra Kirtania was jointly possessed by himself and his brother, said 1/3rd share of Surendra Kirtania was subsequently transferred by registered Deed of Gift in favour of Mukunda Behari Kirtania. The petitioner of Misc. Case No. 30 of 2005 purchased 1/3rd share of Mukunda Behari Kirtania by registered sale deed dated 19th January, 2005 and 1/3rd share of Chittaranjan Sarkar by another sale deed dated 4th June, 2004 and became the owner of 2/3rd share in Plot No. 944. The remaining 1/3rd share of original owner, Manoranjan Sarkar was sold out to the opposite party of Misc. Case No. 30 of 2005 (i.e. Sushma Sarkar, the petitioner herein) by registered sale deed dated 10th June, 2005. Said Sushma Sarkar, being the opposite party before the learned trial court, became the owner of 1/3rd share in the disputed plot. Since the transfer of 1/3rd share was made in favour of Sushma Sarkar, a stranger purchaser, the original petitioner i.e. Parimal Mallick (the opposite party herein) filed the application before the learned trial court for pre -emption under Section 8 of the West Bengal Land Reforms Act, 1955 upon observing certain formalities with regard to deposit of consideration and further sum of 10% of the amount as prescribed by law. Learned trial court while disposing of the application under Section 8 of the West Bengal Land Reforms Act, 1955 (i.e. Misc. Case No. 30 of 2005) allowed the prayer for pre -emption on the grounds of co -sharer as well as the contiguous land owner in the alternative and being aggrieved by such order of pre -emption, the opposite party (i.e. the petitioner herein) preferred an appeal being Misc. Appeal No. 48 of 2009 and learned District Judge, Nadia while disposing of the appeal upheld the order of the learned trial court and compelled the present petitioner to prefer the revisional application since the findings of the courts below were detrimental to her interest.

(3.) HIS learned counterpart, on the other hand, expressed a contrary view in the matter. He submitted that his client (the opposite party herein) could succeed on the ground of co -sharer of the plot in question though the deeds executed in his favour by his vendors showing topography of the portion he purchased since mere show of topography of the purchased portion of his client cannot be construed as other than a co -sharer of the pre -emptee. He also urged that his client i.e. the opposite party herein should not be denied pre -emption either on the ground of co -sharer or on the ground of contiguous landowner.