Sk. Abdul Odud Ali vs Emanulla Khan And Others
2021 Latest Caselaw 3783 Cal

AD. 10.

July 14, 2021.

MNS.

C. O. No. 785 of 2021 (Via video conference)

Sk. Abdul Odud Ali Vs.

Emanulla Khan and others

Mr. Rabindranath Mahato, Mr. Aritra Shankar Ray

... for the petitioner.

Mr. Samim Ahammed, Mr. Arka Maiti, Ms. Saloni Bhattacharyya

...for the opposite party nos. 1 and 2.

Learned counsel appearing for the

petitioner places reliance on the judgment of the

Supreme Court rendered in Barasat Eye

Hospital and others Vs. Kaustabh Mondal,

reported at (2019) 19 SCC 767, in particular

paragraph no. 23 thereof, where the right of

preemption has been held to be a weak right and,

in the last sentence of the said paragraph, a

distinction has been made between the rights of a

co-sharer and a contiguous owner.

Learned counsel for the petitioner

contends that in view of the premise of the

Supreme Court, being the weakness of the right

of a contiguous owner, which is not applicable in

the case of co-sharer, the ratio laid down in

Barasat Eye Hospital (supra) is distinguishable

in the present case, where the petitioner sought

preemption on the ground of co-sharership, but

the trial court, by the impugned order rejected the

said application at the outset.

Learned counsel appearing for the

opposite party nos. 1 and 2- preemptees cites

two unreported judgments respectively passed by

other co-ordinate Benches of this Court in C. O.

No. 2461 of 2007 (Smt. Kamala Rani Roy &

Ors. Vs. Sri Sambhu Sen & Ors.) and C. O. No.

2311 of 2006 (Golam Kibria Mallik Vs. Sk. Amir

Ali & Ors.). In the first of the above judgements,

a specific objection in tune with the objection

taken by the petitioner in the present case was

raised, but such question was decided in the

negative by the co-ordinate Bench. The Learned

Single Judge opined that even in case of a

preemption application by a co-sharer, the ratio of

Barasat Eye Hospital (supra) holds good.

That apart, learned counsel for the

opposite party nos. 1 and 2 places specific

reliance on the language of Section 9 of the West

Bengal Land Reforms Act, 1955 (in short '1955

Act') which, according to counsel, does not

distinguish between the grounds of seeking

preemption but apply to all applications under

Section 8 of the 1955 Act.

Learned counsel for the opposite party

nos. 1 and 2 also places stress on paragraphs

26, 27 and 28 of Barasat Eye Hospital(supra) in

order to contend that apart from the distinction

between co-sharers and contiguous owners, as

held in a stray sentence in paragraph 23 of the

judgement, the Supreme Court judgement was

passed on several other considerations as well.

As such, it is argued that the same

principle was correctly applied by the trial court

while passing the impugned order.

Hearing is concluded.

The matter is reserved for judgement.

(Sabyasachi Bhattacharyya, J.)