Harish Tandon, J.@mdashThis revisional application is directed against the judgment and order dated July 02, 2012 passed by Additional District Judge, 3rd Court, Malda, in Misc. Appeal No. 40 of 2011 by which an application u/s 8 of the West Bengal Land Reforms Act, 1955 is dismissed. Admittedly, four brothers, namely Jitendra Nath Sarkar, Swadhin Chandra Sarkar, Biswanath Sarkar and Monoranjan Sarkar purchased 60 decimals of land from Bhajaharial Pal and Khiroda Bala Pal by registered deed of sale dated April 21, 1979 in respect of the Plot No. 480, Mouza-Kanturka, Police Station-Habibpur, District-Malda for a valued consideration, as mentioned therein.
2. The aforesaid four brothers were possessing the said property till Jitendra Nath Sarkar sold, transferred and conveyed 15 decimals of land to the opposite party for a consideration of Rs. 15,000/- by executing and registering deed on January 07, 2007.
3. The petitioners, being the other two brothers, filed an application u/s 8 of the West Bengal Land Reforms Act, 1955 claiming preemption, as a co-sharers.
4. According to the petitioners, the said plot of land, measuring 60 decimals in Plot No. 480, was jointly purchased by four brothers and, therefore, the said property is unpartitioned and undemarcated.
5. It is, however, averred in the said application that by selling his share by one of the brothers i.e. co-sharer, to the stranger entitled the pre-emption, provided the application is taken out within the period prescribed therein.
6. The defence taken by the opposite party before the trial Court is that the said co-sharer was possessing the said property exclusively and have sold the well demarcated portion to them by executing and registering the deed of sale.
7. It is further contended that when the entire share or a plot of land is transferred, the application for pre-emption u/s 8 of the said Act does not lie. Therefore, the entire gamut of dispute rests upon the point whether the property is undemarcated or is well demarcated and was partitioned amongst the original owner.
8. The trial Court allowed the application for pre-emption, as the vendor of the opposite party was holding the plot of land which is undemarcated and unpartitioned and, therefore, the sale of the share by the co-sharer in respect of an unpartitioned property entitles the other co-sharer to claim the pre-emption, if it is sold to the stranger.
9. The trial Court further held that the partition can only be recognised, if it is effected in terms of Section 14 of the said Act.
10. The Appellate Court, however, reversed the said findings of the trial Court that after the amendment of definition of ''a holding of land'' held by the raiyat would constitute one single holding in which the raiyat may have exclusive and undivided interest and further found that there is no scope for co-sharer in the holding to exercise the pre-emption u/s 8 of the said Act which can be exercised by the owner of a contiguous land, The aforesaid findings is absolutely unfounded and contrary to the unambiguous and clear language implied u/s 8 of the said Act.
11. Learned advocate, appearing for the preemptor, however, submits that the property possessed by the said Jitendranath Sarkar was unpartitioned and undemarcated and having sold his share to the opposite party, who is stranger, the preemption u/s 8 is maintainable.
12. He strenuously submits that in the cross-examination, the opposite party categorically admits that the property is unpartitioned and, therefore, sale of share by one of the co-sharer comes within the ambit of Section 8 of the said Act.
13. He further submits that record of rights does not depict that the plot of land jointly purchased by four brothers has been demarcated and partitioned.
14. Dr. Indrajit Mondal, learned Advocate, appearing for the opposite party, submits that if a demarcated portion is sold by the co-sharer divesting his entire share in the plot of land, Section 8 does not come into play in such situation.
15. He further submits that the vendor of his client sold, transferred and conveyed the well demarcated portion owned and possessed by him and, therefore, the application for pre-emption is not maintainable.
16. He refers the definition of "co-sharer" as given in Section 2 of the said Act to contend that the co-sharer shall mean a person having an undemarcated portion of plot of land along with the raiyat and since the vendor of his client is possessing an exclusive and demarcated portion, there is legal presumption of the partition amongst the co-sharers.
17. He further submits that the definition, as assigned in the said Act, is subject to the context which necessarily implies that the definition is not exclusive and is dependant upon the facts of the each case. By contending that the demarcated portion has been sold by the vendor of the opposite party, he relies upon the judgment of this Court in the case of
18. Having considered the respective submission is, Section 8 of the West Bengal Land Reforms Act, 1955 relates to the right of pre emption of a bargadar, co-sharer raiyat and the contiguous plot holder, in case a portion or share of a plot of land of a raiyat is transferred to any person, other than the co-sharer. Proviso attached to the said Section contains the order of the precedence whereas sub-section (2) provides the exception where the pre-emption cannot be claimed under the said provision.
19. The expression "portion or share of a plot of land of a raiyat" leaves no room of doubt that if the entire property is sold by the raiyat, the pre-emption cannot be claimed u/s 8 of the said Act.
20. Dr. Mondal tried to impress upon this Court that the word "share of a plot of land of a raiyat" necessarily implies the transfer of a portion of the said share and not the whole of the share, which is transferred by the raiyat.
21. I am afraid that such interpretation would lead to an absurdity.
22. The legislature does not use any word or expression unnecessarily. The word used in the legislation carries a definite meaning and purposes. The legislature consciously used the word "or" before the word "portion" and "share" which necessarily implies that if a portion of a plot of land of a raiyat or the share of the plot of land of a raiyat is transferred to any person, the right of pre-emption is bestowed upon the co-sharers or the bargadar or the adjoining plot holder.
23. If the interpretation, which Dr. Mondal tried to make, is taken then it is only in case where a portion of a share of a raiyat, who is holding the said share undemarcated, undivided and unpartitioned, then only the said pre-emption can be claimed and not otherwise.
24. This Court has no hesitation to hold that if a co-sharer is holding an undivided, undemarcated share in respect of a plot of land and if he sells the said share to any person other than the co-sharer, the right of pre-emption is conferred or bestowed upon the other co-sharers u/s 8 of the West Bengal Land Reforms Act, 1955.
25. Let me now consider the other arguments advanced by Dr. Mondal in this regard. According to him, the property purchased and owned by four brothers was subsequently demarcated and each of the brother having an exclusive possession of the portion so allotted.
26. Section 14 of the West Bengal Land Reforms Act provides a mechanism for partition of a plot of land amongst a co-sharer of a raiyat either by a registered instrument or decree or order of the Court.
27. Dr. Mondal relies upon a judgment of a Coordinate Bench in the case of Ratipati Bandopadhyay & Anr. (supra) to contend that if the co-sharer sold the demarcated portion, the pre-emption would not lie. In the said case, the entire plot of land is owned by one Sarat Chandra Mukhopadhyay. The measurement of the land is 04 satak. He sold 02 satak to the preemptor therein and retained the rest with him. After his death, his heirs sold the said 02 satak to another person. It was found that the original owner sold the well demarcated property to the preemptor and retained the other demarcated property with him. In such prospective, it was held that if the demarcated portion is sold then the preemption would not lie.
28. I am afraid that the facts of the instant case is absolutely different.
29. Admittedly, the four brothers jointly purchased the undemarcated plot of land. Merely the four brothers, by their mutual arrangements, are possessing the respective portions, the said portions are possessed by them for themselves and for other co-sharers. Unless there is partition in the manner, as provided u/s 14 of the said Act, mere possessing the part of the property does not lead to a presumption that the parties have amicably partitioned the property.
30. Further more, in the cross-examination, the opposite party admitted that the property purchased by him was not partitioned amongst the co-sharers. There has been a categorical admission on the part of the opposite party and having aware that the property is unpartitioned merely the deed by which the share of one of the brothers has been transferred showing the demarcation does not mean that the demarcated property was conveyed to the opposite party.
31. This Court, therefore, finds that the Court of Appeal below erred in law in rejecting the application u/s 8 of the West Bengal Land Reforms Act.
32. The order is, therefore, set aside.
33. As a consequence thereof, the order passed by the trial Court is restored and revived.
34. The Revisional Application is thus disposed of. However, there shall be no order as to costs.
