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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.

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 ½ 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.

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.

Learned lower appellate court also came to a concurrent findings of fact that pre-emptor Gopal Chandra Mondal was not a co-sharer of pre-emptee's vendor Sankar Nath Mondal as well demarcated separate lands were sold to both of them by Akshay Kumar Mondal. However, he allowed the claim of pre-emption on the ground of vicinage.

In the case of Sri Bhuban Chandra Samanta (supra) a question arose as to whether an adjacent land owner can exercise the right of pre- emption in case of transfer of a portion of holding while there was no co- sharer in said holding. It was answered in the negative with the following observations.

'In view of the expressions "any person other than a co-sharer", the section contemplates that the holding must be hold under joint ownership and not under the ownership of single individual. This is also apparent from the first proviso to Section 8(1) of the Act, which provides that a co-sharer raiyat will have preferential right as against a contiguous tenant to have such portion or share of the holding transferred to him, where both of them are applicants at the same time. The section restricts the owner's unfettered right of sale and compels him to sell the share or portion of the holding either to his co-sharer or to contiguous tenant, as the case may be. It is now an accepted legal principle that where the provision of a statute providing for right of pre-emption shackles the freedom of transfer, the same should be strictly construed and, unless a case strictly within the provision, claim for pre-emption should not be allowed. Section 8(1) of the Act construed in the light of the aforesaid legal principle, leaves no room for doubt that that the holding, a share or portion of which is transferred, must be hold under joint ownership. The contention of Mr. Bhunia that even though there is no co-sharer of the holding the contiguous raiyat has the right of pre-emption in case of a transfer of a share or portion of the holding, is overruled.' It has to be noted that at the relevant time the term "holding" was not replaced by the words "plot of land of a raiyat". Such proposition is mutated mutandis applicable in case of transfer of a portion or a share of a plot of land of a raiyat to any person when there was no co-sharer in said plot of land.

On plain reading of said sub-section 4 of Section 5 of the Act of 1955 it is clear that in the case of transfer of a portion or share of such a plot of land by one to which the provisions of pre-emption under Section 8 apply then notice was required to be issued to all the co-sharers of said plot of land who are not parties to the transfer and also for affixing a copy thereof on different places mentioned therein. It is thus palpable that if there is no co-sharer in the plot of land there is no question of issuing any notice under Section 5 (4) as well as for exercising any right of pre-emption by anybody. It has already been established that pre-emptor Gopal Chandra Mondal was not a co-sharer of the land of Sankar Nath Mondal and that there was no co-sharer in the land of Sankar Nath Mondal which was purchased by him from common owner Akshay Kumar Mondal. If that be the position then pre-emptor Gopal Chandra Mondal cannot exercise the right of pre-emption under Section 8 of the Act of 1955 even though he was an adjacent land owner of the plot of land, a portion of which was sold out by Sankar Nath Mondal to the petitioner pre-emptee by a kobala dated 25th of August, 2003. It appears that learned lower court of appeal failed to take note the principles of applicability of the right of pre-emption under Section 8 when there was no co-sharer in the plot of land, in its true perspective. As a result, the order impugned is liable to be set aside.