SRI RAMPADA JANA v. SRI MANIKLAL SAMANTA

#6. The first point of preferring this appeal assailed by the Learned Advocate Mrs. Usha Maity relates to maintainability of the pre-emption application itself on the ground that said Ram Saran Samanta was not the co-sharer with Sital Chandra Duari and accordingly his legal heirs also cannot be the co-sharer. It is contended by the Learned Advocate that the property was sold to Rampada Jana by Registered sale deed executed and Registered on 14th June ,2001 and 4th September 2003 respectively is not a co-sharer property and accordingly the application for pre-emption submitted by the pre-emptor is not maintainable.It is submitted that the common owner Krishna Chandra while gifted 1/3rd and 2/3rd share within a total area of 3.55 acres with specific demarcation and rent/khajna both Sital and Ram Saran became the absolute owners of their respective portions and not the co-sharer to each other. Both of their names was recorded in the Record of rights as separate Raiyat with separate Khatian Number and both of them are raiyat and not co-sharer. Therefore the prayer made by the applicants for preemption by the wife and son of Ram Sharan is not maintainable.

#7. It is further contended that the Opposite Parties failed to establish their right over 5 plots being no.19, 697 and 42 of Mouza Baneshwarpur regarding which claim has been made for pre-emption by filing this application, are not found mentioned in the deed executed by Krishna Chandra in favour of Sital .By virtue of consolidated application the opposite party first time mentioned about oral gift of some properties and the submission made before the Trial Court that those plot nos. were actually gifted to both the nephews by oral gift . The present petitioner filed their written objection denying the said contention. In this regard she relied upon the decision of Full Bench reported in Madan Mohan Ghosh vs Sishubala Atta1 (Narendra Kumar Singh vs Smt Gursharan Kaur)2.

#8. It is further argued that anybody claiming his right as pre-emptor by filing an application, must show that he is a co-sharer adjoining of the holding, a portion of share of which has been transferred to a non-co-sharer and in the event of his failure to prove he cannot claim to have any right of pre-emption as was enumerated under Section 26(f) of Bengal Tenancy Act, as observed by the Full Court. That apart when demarcated portion of a plot of a Raiyat is transferred by the original owner, the purchaser does not become co-sharer 1 76 CWN 1058 2 2016 (2) WLR (CAL) 314 with the original owner .In this regard relied upon the decision of (kinkar mahato vs Sham mahato)3.

#9. The other point raised by Mrs. Maity that the concept of partial partition is alien and the right of pre-emption is not a right to the things sold but a right to the offer of a thing about to be sold and this right is called inherent right. The right being a weak right, it can be defeated by all legitimate methods .In this regard the learned advocate relied upon the decision of (Bishan Singh vs Khajan Singh)4. She further relied upon (Biharilal roy vs Pulin Behari pal)5, (Surabala Basu vs Rukmini Kanta Barman Roy)6, (Rampada Jana)7, (Surendranath Jana vs Abhimanyu Jana)8 (Mattu Devi (smt.-vs damodar lal)9, (Rabindranath Kundu vs Suidhir Hira)10 Labanyaprabha devi vs Parulbala Devi)11 (Khatejannessa & anr vs Mahammad Abdul Khalique)12

#10. The further point argued that the pre-emption is a statutory right and weak right to be exercised strictly in terms of section 8 and consideration of equity do not apply as held in (Gopal sardar vs karuna sardar)13, (Kumar Gonsusab vs Mahammad Miyan)14, (Gouranga Kundu vs Sarathi Halder) 15, (Sk. Samser Ali vs Sarina Bibi)16 . (Patel Motobhai vs Binubhai)17. 3 2005(3) ICC 05 4 AIR 1958 (SC) 838 5 38 CWN 654 6 42 CWN 288 7 2020(1) CLJ 135 8 1980(1) CLJ 135 9 2001 (6) SCC 330 10 2018 (4) WBLR (CAL) 352 11 77 CWN 272 12 44 CWN 981 13 (2004) 4 SCC 252 14 2008 (10) SCC 153 15 2017 (3) CHN (caL) 201 16 (2012) 2 CHN (CAL) 694

#11. Furthermore an application for pre-emption in respect of homestead (Bastu Land) is not maintainable and such issue is still pending decision before the Special Bench and relied upon a decision reported in (Punit Singh vs Gour @ Gobinda Chandra Das)18. More so the pre-emptor did not deposit the full amount of consideration money with 10% additional amount is mandatory .In this regard relied upon the decision of Barasat Eye Hospital vs Kaustabh Mondal19 reported in, (Abdul Matin Mullick vs Subrata Bhattacharya)20.

#12. The petitioner cannot add 5 more plots other than 21 plots of the disputed sale deed purchased by Rampada Jana from Sital Chandra Durai claiming to be the co-sharer of these plots .Plot nos 10,16,17,42 were not gifted either to Sital or Ramsaran by Krishna Chandra. Therefore the question falls for consideration whether the pre-emptors are at all the co-sharer of those 5 plots as contained in the Registered Sale Deed dated 14.6.2001 and registered on

4.9.2003 and concept of partial partition cannot be accepted being alien. Accordingly prays for setting aside the order passed by the Learned Appellate Court. Submissions made on behalf of the opposite party

#13. The Learned Senior Advocate Mr. Partha Pratim Roy on the other hand representing the Opposite Party raises strong objection to the contention made on behalf of the petitioner that the predecessor of the opposite party was not a co-sharer of the suit property. It is his argument that pursuant to the deed of Sale executed by Shital Duari in favour of Rampada Jana the schedule of