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Right of pre-emption under West Bengal Land Reform Act

In Rabindra Nath Kundu & Anr vs Sudhir Hira, Bijoy Krishna Hira being the owner in the suit plot, gifted to Santosh Kumar Hira demarcated 11 decimals of land vide deed of gift dated 27.4.2004 and the latter sold 9 decimals out of 11 decimals of land to Sudhir Hira the preemptor/opposite party no. 1 and well demarcated 1.65 decimals of land in the said plot along with several other plots were sold, transferred and conveyed to the preemptees/petitioners herein by a registered deed of sale dated 10.8.2010, the subject matter of preemption.

It is argued on behalf of the preemptees that  the present opposite party no. 1/preemptor Sudhir Hira has no relationship of co-sharership with Santosh Kumar Hira opposite party no. 2 as the demarcated portion of land has been purchased.

It is settled principle of law that partial preemption is not permissible and this was what the view adopted by this Hon'ble High Court is Surendra Vs. Abhimannu reported in (1980) 1 Cal LJ 135 wherein it has held that when by a sale deed two or more plots of the lands in a holding are transferred to a stranger purchaser, then the co- sharer of the holding cannot seek preemption only in respect of one plot or portion of such land transferred.

I am of the considered opinion bearing in mind the settled principle of law that right of preemption is a weak right and in case of preemption it is the impugned deed of kobala which is preempted and not the land so, in case of a sale of lands in different plots, preemptor cannot be allowed to preempt a particular land covered by impugned deed of sale. The right of preemption cannot be lightly exercised with respect to one or some of them. It is a right of substitution taking in the entire bargain. It must take the whole or nothing. That apart, the circumstances of sale of several properties to different holdings in one deed of transfer and sale to a stranger as well as to a co-sharer in one deed of transfer has not been substantiated in the given facts of the case before the learned Courts below. Therefore, the partial preemption ought not have been allowed, ergo, the application for preemption is liable to be dismissed.


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