Calcutta High Court (Appellete Side)
Sri Soumitra Mondal & Anr vs Smt. Mallika Rani Mondal on 9 July, 2026
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
C.O. 2577 of 2025
Sri Soumitra Mondal & Anr.
VS.
Smt. Mallika Rani Mondal
For the Petitioners : Mr. Tanmoy Mukherjee
Mr. Souvik Das
Mr. Rudranil Das
Mr. Abul Mullick
..... advocates
For the Opposite Party : Mr. Partha Pratim Ray
Ms. Jenia Rudra ..... advocates
Reserved on : 08.05.2026
Judgment on : 09.07.2026
Hiranmay Bhattacharyya, J.:-
1.
This application under Article 227 of the Constitution of India is at the
instance of the pre-emptees and is directed against the Judgment and Order
dated April 9, 2025 passed by the Learned Additional District Judge, 2nd
Court at Contai, District Purba Medinipur in Misc. Appeal No. 24 of 2023
reversing the Judgment and Order dated April 29, 2023 passed by the
learned Civil Judge (Junior Division) 2nd Court at Contai, District Purba
Medinipur in Judicial Misc. (Pre-emption) Case No. 01 of 2019.
2. The learned Trial Judge dismissed the Misc. Case under Section 8 of the
West Bengal Land Reforms Act, 1955 by the Judgment and order dated
29.04.2023. The preemptor/opposite party preferred the Misc. Appeal
challenging the aforesaid order and the learned Judge of the Appellate Court
allowed the appeal and remanded the Misc. Case to the learned Trial Judge
by the Judgment and order dated April 9, 2025.
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3. Facts giving rise to this application, in a nutshell are as follows.
4. Bimal and Bikash transferred “Ka” schedule property to Subrata Kumar
Mondal by a registered sale deed dated 01.10.2009. Petitioner purchased
the “Ka” Schedule property from Subrata Kumar Mondal by virtue of the
impugned registered sale deed being no. 5650 of 2018 which was executed
on 12.10.2018. Opposite party claims to be a co-sharer as well as the
adjoining landowner of “Ka” Schedule property.
5. Opposite party filed the Misc. Case under Section 8 of the West Bengal Land
Reforms Act, 1955 on the ground of co-sharership and vicinage.
6. The Misc. Case was filed on 07.01.2019. Petitioners appeared in the said
Misc Case on 07.02.2019 but filed their Written Objection on 13.08.2019.
7. Subrata Kumar Mondal, the vendor of the petitioners filed a Title Suit no. 54
of 2019 before the Learned Civil Judge (Junior Division) 1st Additional Court
at Contai against the petitioners. The said suit was filed on 02.02.2019 and
the same was decreed on compromise on 10.07.2019.
8. Petitioners contested the Misc. Case by filing a Written Objection denying
the material allegations contained therein. In the said Written Objection, the
petitioners contended that they had no right, title and interest in the “Ka”
schedule property and the impugned sale deed made in favour of the
petitioners by the said Subrata Kumar Mondal was not a sale deed but was
the security for the loan transaction. It was further contended that the Title
Suit no. 54 of 2019 instituted by Subrata Kumar Mondal was decreed on
compromise and it was declared that the deed was a security for a loan
transaction and not an out and out sale. The petitioners prayed for
dismissal of the Misc. Case as the opposite party was not entitled to pre-
empt the sale.
9. The impugned sale deed was marked as Exhibit 2 and the certified copy of
the compromise petition filed in Title Suit No. 54 of 2019 and the
compromise decree was marked as Exhibit A.
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10. The learned trial Judge held that the right, title and interest did not pass to
the vendees of the impugned deed (Exhibit 2). The learned trial Judge
further held that the cause of action of the preemption application perished
by dint of Exhibit A. In the light of the aforesaid findings, the Misc. Case was
dismissed.
11. The learned Judge of the Appellate Court, however, observed that the
learned Court passing the decree in T.S. No. 54 of 2019 was not a
competent civil court from which the compromise decree was obtained by
the vendor and vendees of the impugned sale deed. It was further held that
a compromise decree obtained from a Court having no jurisdiction to try the
suit is not binding upon the pre-emptor. The learned Judge of the Appellate
Court after holding that the preemption proceeding was clearly maintainable
in the facts and circumstances of the case remanded the Misc. Case to the
learned Trial Judge with a direction to decide the rest of the issues that have
already been framed except the Issue no. 1.
12. Challenging the order of remand passed by the learned Judge of the
Appellate Court, the pre-emptees have approached this Court.
13. Mr. Mukherjee, learned advocate for the petitioner contended that in view of
the decree passed in the Title Suit between the vendor and vendees of the
impugned sale deed, the cause of action of the pre-emption application
perished. He further contended that since the right of pre-emption is a very
weak right, it can be defeated by all legitimate methods. In support of such
contention he placed reliance upon the decision of the Hon’ble Supreme
Court in the case of Bishan Singh & ors. vs. Khazan Singh & Anr.
reported at AIR 1958 (SC) 838. He further contended that the pre-emptee
can defeat the right of pre-emption by allowing a person having a superior or
equal right to be substituted in his place. Mr. Mukherjee placed reliance
upon the decisions rendered by the Hon’ble Supreme Court in
Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra
Alshi, reported at AIR 1960 (SC) 1368; Abdul Matin Mallick v. Subrata
Bhattacharjee, reported at (2022) 7 SCC 147 and Kumar Gonsusab and
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others vs. Mohammed Miyan reported at (2008) 10 SCC 153 in support of
his contention that the right of pre-emption is a very weak right.
14. Mr. Mukherjee further contended that the compromise decree passed in the
Title Suit between the vendor and vendees of the impugned sale deed
already attained finality. He submitted that neither the Munsif dealing with
an application under Section 8 of the West Bengal Land Reforms Act, 1953
nor the Appellate Court can declare the compromise decree passed by the
Civil Court to be illegal, void, conclusive and manufactured.
15. Mr. Mukherjee contended that since the deed which forms the basis of the
pre-emption application was subsequently declared to be void, the cause of
action for such application perished and in support of such contention he
placed reliance upon an order of a co-ordinate bench passed on 11.07.2016
in C.O. 2370 of 2016 in the case of Sri Pulin Das Adhikari & Anr. vs.
Sri Ashis Kumar Maity & Ors.
16. Mr. Mukherjee contended that acquisition of right, title and interest by
Subrata Kumar Mondal by virtue of compromise decree may be subject to a
fresh right of pre-emption in view of the provisions laid down in Section 9(2)
of the 1955 Act and by virtue of the subsequent transfer the right of pre-
emption that accrued upon transfer made by impugned deed got defeated.
17. Mr. Roy learned advocate for the opposite party seriously disputed the
contention of Mr. Mukherjee. He contended that by the impugned deed of
transfer the entire right, title and interest in the property passed to the
transferee and the moment such transfer of interest took place, the right of
pre-emption accrued and all subsequent transfers by the transferee would
be subject to right of pre-emption under Section 8(1).
18. In support of such contention Mr. Roy placed reliance upon the decisions of
the co-ordinate benches in the case of Basanti Bala Sarkar vs. Ram
Krishna Mondal and ors. reported at 1985 (2) CHN 232; Brajendra Nath
Patra vs. Ashis Kumar Patra & Ors. reported at (1991) 1 CHN 11 and
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Chand Mahammad vs. Abdus Sattar & Anr. reported at (2016) 4 CHN
275.
19. In reply Mr. Mukherjee contended that the argument on Section 9(2) which
he had advanced was neither argued by the learned Counsels and the
decisions in the case of Basanti Bala Sarkar (supra), Barajendra Nath
Patra (supra) and Chand Mohammad (supra) were delivered without
reference to the crucial words used in Section 9(2). He, therefore, contended
that such decisions are not binding as the same are precedents sub silentio.
In support of such contention he placed reliance upon the decision of the
Hon’ble Supreme Court in Municipal Corporation of Delhi vs. Gurnam
Kaur reported at (1989) 1 SCC 101.
20. Heard the learned advocates for the parties and perused the materials
placed.
21. Petitioners have purchased the “ka” schedule property from Subrata Kumar
Mondal by virtue of the impugned registered sale deed being no. 5650 of
2018 which was executed on 12.10.2018. Opposite party claims to be the
co-sharer as well as adjoining land owner of “ka” schedule property.
22. Opposite party filed the Misc. Case claiming that by virtue of such transfer
by way of registered sale deed dated 12.10.2018, the right of purchase
under Section 8(1) of the West Bengal Land Reforms Act, 1955 (for short
“WBLR Act“) accrued.
23. However, during the pendency of the said Misc. Case Subrata Kumar
Mondal i.e., the transferor of the petitioner filed a Title Suit No. 54 of 2019
under the Bengal Money Lenders Act, 1940 claiming that the deed dated
12.10.2018 was not an out and out sale deed but a security for loan
transaction. The said suit was decreed in terms of compromise on
10.07.2019.
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24. Mr. Mukherjee would contend that the right of pre-emption being a weak
right, it can be defeated by all legitimate methods even by allowing the
transferor of the pre-emptee being substituted in place of the pre-emptee.
25. Mr. Roy vehemently contended that the Title Suit No. 54 of 2019 and the
compromise decree is a product of fraud in order to deprive the pre-emptor
from the exercise of his right of pre-emption.
26. At this stage, this Court has to consider the proposition of law laid down in
Bishan Singh (supra) and its applicability to the facts of the case in hand.
27. In Bishan Singh (supra), the Hon’ble Supreme Court noted that under
general law of pre-emption, the plaintiff is bound to show not only that his
right is as good as that of the vendee but that it is superior to that of the
vendee and also that such superior right must subsist at the time the pre-
emptor exercises his right and that right is lost if by that time another
person with equal or superior right has been substituted in place of the
original vendee. It was further observed that the vendor and the vendee are,
therefore, permitted to avoid accrual of the right of pre-emption by all lawful
means. (see para 11)
28. The Hon’ble Supreme Court after making the aforesaid observations on the
general law of pre-emption, proceeded further to consider whether such
right is modified or otherwise enlarged by the provisions of the Punjab Pre-
emption Act.
29. After noticing the provisions laid down under Sections 4, 13, 17, 19, 20 and
28 of the Punjab Pre-emption Act, the Hon’ble Supreme Court held that the
said provisions do not in any way enable the pre-emptor to exercise his right
without establishing his superior right over the vendee or a person
substituted in his place or to prevent the vendor or the vendee, by legitimate
means, to defeat his right by getting substituted in place of the vendee, a
pre-emptor with a superior right to or an equal right with that of the
plaintiff. (see para 14)
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30. A question arose as to whether such act of substitution is hit by the doctrine
of lis pendens and can be in derogation of the right of pre-emption.
31. It was held that the doctrine of lis pendens applies only to a transfer
pendente lite, but it cannot affect a pre-existing right. If the sale is a transfer
in recognition of a pre-existing and subsisting right, it would not be affected
by the doctrine, as the said transfer did not create new right pendete lite.
But if the pre-existing right became unenforceable by reason of the fact of
limitation or otherwise, the transfer, though ostensible made in recognition
of such a right, in fact created only a new right pendente lite.
32. On the facts of the reported case, the Hon’ble Supreme Court held that the
right of pre-emption of the appellants therein was subsisting at the time
when the amount was deposited and possession of the land was taken. It
was further held that the coercive process was in operation at the time when
the terms of the decree was complied with.
33. At this stage it would be profitable to recapitulate some of the provisions of
the WBLR Act dealing with the right of pre-emption for the purpose of
deciding whether the vendor and the vendee are permitted to avoid accrual
of the right of pre-emption under the 1955 Act, by all lawful means.
34. Section 8 of the WBLR Act deals with the accrual of the right of purchase.
Section 9 empowers the Munsif to decide an application filed under Section
8. Section 10 deals with the consequences of an order for transfer.
35. For effective adjudication of this application it would be beneficial to
recapitulate the provisions of Sections 8, 9 and 10 of the 1955 Act which are
extracted hereinafter.
“8. Right of purchase by co-share or contiguous tenant.
(1) If a portion or share of a plot of land of a raiyat is transferred to any
person other than a co-sharer of a raiyat in the plot of land the
bargadar in the plot of land may, within three months of the date of
such transfer, or any co-sharer of a raiyat in the plot of land may,
within three months of the service of the notice given under sub-section
(5) of section 5, or any raiyat possessing land adjoining such plot of
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land may, within four months of the date of such transfer, apply to the
Munsif having territorial jurisdiction, for transfer of the said portion or
share of the plot of land to him, subject to the limit mentioned in section
14-M on deposit of the consideration money together with a further sum
of ten per cent, of that amount:
Provided that if the bargadar in the plot of land, a co-sharer of a raiyat
in plot of land and a raiyat possessing land adjoining such plot of land
apply for such transfer, the bargadar shall have the prior right to have
such portion or share of the plot of land transferred to him, and in such
a case, the deposit made by others shall be refunded to them:
Provided further that where the bargadar does not apply for such
transfer and a co-sharer of a raiyat in a plot of land and a raiyat
possessing land adjoining such plot of land both apply for such
transfer, the former shall have the prior right to have such portion or
share of the plot of land transferred to him, and in such a case, the
deposit made by the latter shall be refunded to him.
Provided also that as amongst raiyats possessing lands adjoining such
plot of land preference shall be given to the raiyat having the longest
common boundary with the land transferred.
(2) Nothing in this section shall apply to-
(a) a transfer by exchange or by partition, or,
(b) a transfer by bequest or gift or heba-bil-ewaz, or,
(c) a mortgage mentioned in section 7, or,
(d) a transfer for charitable or religious purposes or both without
reservation of any pecuniary benefit for any individual, or,
(e) a transfer of land in favour of a bargadar, in respect of such
land if after such transfer, the transferee holds as a raiyat land
not exceeding one acre (or 0.4047 hectare) in area in the
aggregate.
Explanation. – All orders passed and the consequences thereof under
sections 8, 9 and 10 shall be subject to the provisions of Chapter IIB.
(3) Every application pending before a Revenue Officer at the
commencement of section 7 of the West Bengal Land Reforms
(Amendment) Act, 1972, shall, on such commencement, stand
transferred to, and disposed of by, the Munsif having jurisdiction in
relation to the area in which the land is situated and on such transfer
every such application shall be dealt with from the stage at which it
was so transferred and shall be disposed of in accordance with the
provisions of this Act, as amended by the West Bengal Land Reforms
(Amendment) Act, 1972.
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9. [Munsif] to allow the application and apportion lands in
certain cases.
(1) On the deposit mentioned in sub-section (1) of section 8 being made,
the [Munsif] shall give notice of the application to the transferee, and
shall also cause a notice to be affixed on the land for the information of
persons interested. On such notice being served, the transferee or any
person interested may appear within the time specified in the notice
and prove the consideration money paid for the transfer and other
sums, if any, properly paid by him in respect of the lands including any
sum paid for annulling encumbrances created prior to the date of
transfer, and rent or revenue, cesses or taxes for any period. The
Munsif may after such enquiry as he considers necessary direct the
applicant to deposit such further sum, if any, within the time specified
by him and on such sum being deposited, he shall make an order that
the amount of the consideration money together with such other sums
as are proved to have been paid by the transferee or the person
interested plus ten per cent of the consideration money be paid to the
transferee or the person interested out of the money in deposit, the
remainder, if any, being refunded to the applicant. The Munsif shall
then make a further order that the portion or share of the plot of land be
transferred to the applicant and on such order being made, the portion
or share of the plot of land shall vest in the applicant.
(2) When any person acquires the right, title and interest of the
transferee in such plot of land by succession or otherwise, the right, title
and interest acquired by him shall be subject to the right conferred by
sub-section (1) of section 8 on a co-sharer of a raiyat in a plot of land or
a raiyat possessing land adjoining the plot of land or bargadar.
(3) In making an order under sub-section (1) in favour of more than one
co-sharer of a raiyat in a plot of land or raiyat holding adjoining land or
bargadar, the Munsif may apportion the portion or share of the plot of
land in such manner and on such terms as he deems equitable.
(4) Where any portion or share of a plot of land is transferred to the
applicant under sub-section (1), such applicant shall be liable to pay all
arrears of revenue in respect of such portion or share of the plot of land
that may be outstanding on the date of the order.
(5) The Munsif shall send a copy of his order as modified on appeal, if
any, under sub-section (6) to the prescribed authority for correction of
the record-of rights.
(6) Any person aggrieved by an order of the Munsif under this section
may appeal to the District Judge having jurisdiction over the area in
which the land is situated, within thirty days, from the date of such
order and the District Judge shall send a copy of his order to the
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Munsif. The fees to be paid by the parties and the procedure to be
followed by the District Judge shall be such as may be prescribed.
(7)Every appeal pending before an Additional District Magistrate at the
commencement of section 8 of the West Bengal Land Reforms
(Amendment) Act, 1972, shall, on such commencement, stand
transferred to, and be disposed of by, the District Judge having
jurisdiction in relation to the area in which the land is situated and on
such transfer, every such appeal shall be dealt with from the stage at
which it was so transferred and shall be disposed of in accordance with
the provisions of this Act, as amended by the West Bengal Land
Reforms (Amendment) Act, 1972.
10.Consequences of an order for transfer. On an order under
section 9 being made –
(1) the right, title and interest of the raiyat and of the transferee or of
the person mentioned in sub-section (2) of section 9 who acquires any
right, title and interest in the plot of land shall vest in the raiyat whose
application for transfer has been allowed by the Revenue Officer or by
the Munsif or, after the commencement of section 8 of the West Bengal
Land Reforms (Amendment) Act, 1971, (Act 3 of 1971) by the Additional
District Magistrate, or, after the commencement of the West Bengal
Land Reforms (Amendment) Act, 1972, by the District Judge, on appeal:
Provided that the transferee or the person mentioned in sub-section (2)
of section 9 shall have the right to take away the crops which he might
have grown on the land before the date of the order ;
(b) the raiyat whose application has been so allowed shall be
liable for any revenue accruing from the date of the order.”
36. Section 8 of the WBLR Act confers a right of pre-emption if a portion or
share of a plot of land of a riayat is transferred to a person other than a co-
sharer of a plot of land. Upon such transfer being made, the right of pre-
emption accrues in favour of a bargadar, a co-sharer of a plot of land and a
raiyat possessing land adjoining such plot of land. As to who amongst the
aforesaid three categories of persons shall have a prior right has been
specifically stated in the proviso.
37. Section 9 prescribes the procedure for dealing with an application for pre-
emption.
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38. Section 9(2) provides that any person who acquires the right, title and
interest of the transferee by succession or otherwise shall be subject to the
right of pre-emption.
39. Section 10(a) states that on an order being passed under Section 9, the
right, title and interest of the raiyat and of the transferee or of any person
mentioned in Section 9(2) who acquires any right, title and interest in the
plot of land shall vest in the raiyat whose application for transfer has been
allowed.
40. The issue whether the right of pre-emption can be defeated by subsequent
transfer to the transferor co-sharer and a subsequent sale to a pre-existing
co-sharer fell for consideration before a co-ordinate bench in Basanti Bala
Sarkar (supra).
41. The co-ordinate bench noticed the decision of the Hon’ble Supreme Court in
Audh Behari Singh vs. Gajadhar Jaipur and others reported at AIR
1954 (SC) 417 wherein it was held that the right of pre-emption attaches
with the property. The co-ordinate bench noticed several decisions of this
Court including a division bench decision wherein it was held that by the
initial transfer, the entire right, title and interest in the property passed to
the transferee and the moment such transfer of interest took place, the right
of the co-sharers to apply for pre-emption arose and all subsequent
transfers by the transferee of occupancy holding were subject to the right of
pre-emption under Section 26F of the Bengal Tenancy Act. The co-ordinate
bench proceeded further and held that Section 9(2) of the West Bengal Land
Reforms Act, 1955 Act has given statutory recognition to the view expressed
in the aforesaid decisions. The co-ordinate bench further held that the term
“otherwise” used in Section 9(2) will include a co-sharer who acquires the
title of the transferee by repurchase. It was held thus-
“13. This provision applies to any person who acquires the interest of the
transferee, irrespective of the fact whether they do so by succession or
‘otherwise’. In the absence of any limiting factor, the term ‘otherwise’ will
include a co-sharer who acquires the title of the transferee by re-
purchase. His subsequent transferee will be in no better position. The
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petitioner is clearly within the purview of S. 9(2) of the Act. His
application for pre-emption was validity allowed. The revision fails. The
Rule is accordingly discharged.”
(emphasis supplied)
42. In Brajendra Nath Patra (supra), another co-ordinate bench held that
Section 9(2) of the WBLR Act makes it explicit that when any person
acquires the right, title and interest of the transferee by succession or
otherwise the right, title and interest acquired by him shall be subject to the
right conferred under Section 8(1). After reiterating the well settled
proposition of law that the right of pre-emption is a weak right and the right
of pre-emption must subsist till the end for the pre-emptor to succeed, the
co-ordinate bench observed that the right of pre-emption must be held to
subsist even after subsequent transfers, in view of Section 9(2) of the WBLR
Act.
43. On the issue of interpretation of the provisions of the WBLR Act dealing with
the right of pre-emption more particularly Sections 8 and 9 thereof, the
Hon’ble Supreme Court in Abdul Matin Mallick (supra) after reiterating the
proposition of law laid down in Bishan Singh (supra) that the right of pre-
emption is “a very weak right” held that any provision to enforce a right of
pre-emption must, thus, be strictly construed (see para 6.1)
44. In the light of the aforesaid discussion, this Court holds that the provisions
of Section 9(2) should be strictly construed in order to decide whether the
right of the pre-emptor under Section 8(1) would perish if any person
acquires the right, title and interest of the transferee.
45. This Court shall now decide whether the sale deed dated 12.10.2018 can be
said to be a “transfer” within the meaning of Section 8(1) of the 1955 Act
and the effect of the compromise decree on the right of the pre-
emptor/opposite party.
46. A registered sale deed was executed by Subrata Kumar Mondal in favour of
the petitioners in respect of the property which is the subject matter of the
Misc Case for pre-emption. By execution of the said registered deed, the suit
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property stood transferred to the petitioner. By virtue of such transfer, the
right of pre-emption accrued in favour of the opposite party who claims to be
a co-sharer as well as a contiguous land owners. Opposite party filed the
Misc case for pre-emption.
47. It is not in dispute that after the said Misc Case was filed, Subrata Kumar
Mondal, the executant of the deed dated 12.10.2018 executed in favour of
the petitioner filed a suit under the Bengal Money Lenders Act. The plaint of
the said suit has been marked as Exhibit 12. The execution of the deed
dated 12.10.2018 by Subrata Kumar Mondal in favour of the petitioner has
been admitted in the plaint. The case made out by Subrata Kumar Mondal
in the plaint of the said suit is that he requested the petitioner to execute
the deed of reconveyance but on 15.01.2019, the petitioner refused to
execute the deed of reconveyance and also denied the title of Subrata Kumar
Mondal in the suit property.
48. Refusal to execute the deed of reconveyance and the denial of the title of
Subrata Kumar Mondal forms the cause of action for filing Title Suit No. 54
of 2019.
49. In T.S.No. 54 of 2019, the parties to the Suit i.e. Subrata Kumar Mondal
and the petitioners filed a compromise petition dated 02.04.2019. In the
compromise petition the defendants i.e., the petitioners herein admitted that
they do not have any title in respect of the suit property. The said suit was
decreed on compromise by a decree dated 10.07.2019 and the compromise
petition was treated as part and parcel of the compromise decree.
50. It is well settled that a decree passed on the basis of a compromise by and
between the parties is essentially a contract between the parties which
derives sanctity by the Court superadding its seal to the contract [see
Prithvichand Ramchand Sablok vs. S. Y Shinde reported at (1993) 3
SCC 271 at Para 4]
51. The Hon’ble Supreme Court in Ruby Sales and Services (P) Ltd. vs. State
of Maharashtra reported at (1994) 1 SCC 531 held that the compromise
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decree does not stand on a higher footing than the agreement which
preceeded it. It was further held that merely because an agreement is put in
the shape of a consent decree, it does not change the contents of the
document. It remains an agreement and it is subject to the rights and
liabilities which any agreement may suffer.
52. It is not the case of the petitioners that the deed dated 12.10.2018 contains
an agreement for reconveyance. The Misc. Case was filed on 07.01.2019.
T.S. No. 54 of 2019 was filed on 02.02.2019 i.e., during the pendency of the
Misc Case. In the plaint of T.S.54 of 2019, Subrata Kumar Mondal admitted
that on 15.01.2019 the petitioners refused to execute the deed of
reconveyance and denied the title of Subrata Kumar Mondal. Thereafter the
compromise petition was filed.
53. After going through the statements made in plaint of T.S. 54 of 2019 more
particularly the admission made in the plaint about refusal to execute the
deed of reconveyance and the compromise petition, this Court is of the
considered view that by virtue of the deed dated 12.10.2018, the right, title
and interest of Subrata Kumar Mondal in the suit property stood transferred
in favour of the petitioners. To the mind of this Court, the effect of the
compromise petition which formed part and parcel of the compromise decree
is that the right, title and interest in the property which is the subject
matter of the Misc Case stood reconveyed to Subrata Kumar Mondal i.e. the
vendor of the petitioner during the pendency of the Misc. Case.
54. The expression “any person” used in Section 9(2) is of very wide connotation
and shall also include the transferor of the pre-emptee. Any adjustment of
rights in respect of a property between the pre-emptee and his/her
transferor after accrual of the right of pre-emption by way of an agreement
which forms the foundation of a compromise decree would squarely fall
within the expression “otherwise” and shall be subject to the right of pre-
emption in view of Section 9(2) of the WBLR Act.
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55. To the mind of this Court, the proposition laid down in Bishan Singh
(supra) that the vendor and vendee are permitted to avoid accrual of the
right of pre-emption by lawful means shall have no manner of application in
view of Section 9(2) of the WBLR Act. It would not be out of place to point
out that there is no provision in the Punjab Pre-emption Act which is in pari
materia with Section 9(2) of the WBLR Act.
56. This Court, therefore, holds that the vendor and vendee cannot avoid
accrual of the right of pre-emption under the WBLR Act unlike the general
law of pre-emption.
57. In view of the well settled proposition of law that the compromise decree
does not stand on a higher footing than the agreement which preceded it,
this Court holds that the compromise decree dated 10.07.2019 could not
affect the subsisting right of pre-emption of the opposite party in view of the
provisions of Section 9(2) of the WBLR Act.
58. The aforesaid view of this Court is supported by the decision of the co-
ordinate bench in Chand Mahammad (supra).
59. In Pulin Das Adhikari (supra), in a regular Civil Suit, the Civil Court of
competent jurisdiction declared the sale deed to be void and on such factual
matrix, the co-ordinate bench held that the right, title and interest did not
pass to the vendee of the deed. This Court has already observed that by
virtue of the deed dated 12.10.2018, the right, title and interest in the suit
property stood transferred to the petitioners and the said property stood
reconveyed in favour of the transferor during the pendency of Misc. Case.
The said decision being distinguishable on facts cannot come to the aid of
the petitioners.
60. In Radha Kisan Laxminarayan Tashnilwal (supra), the question that fell
for consideration before the Hon’ble Supreme Court was whether right of
pre-emption accrued on execution of an agreement of sale. The Hon’ble
Supreme Court after noticing the provisions of Section 54 of the Transfer of
Property Act held that a contract for sale does not of itself create any
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interest in or charge on immovable property and consequently the contract,
on the facts of the said reported case, created no interest in favour of the
vendee and the proprietary title did not validly pass from the vendors to the
vendee and until that was completed no right to enforce pre-emption arose.
It was alleged that the deed of sale was not executed by practising fraud in
order to defeat the right of the pre-emptors. On such factual matrix it was
held that anything done previous to the execution of the sale deed could not
ordinarily be said to be a fraud to deprive a pre-emptor from the exercise of
his right of pre-emption. The said decision is distinguishable on facts and,
therefore, the said decision cannot have any manner of application to the
case on hand.
61. In Kumar Gonsusab (supra), a suit for pre-emption on the ground of
vicinage was filed under the Mohammedan Law in respect of an agreement
for sale. The Hon’ble Supreme Court after noting the provisions of Section
226 and 232 of the Mohammedan Law and Section 54 of the Transfer of
Property Act, held that a suit for pre-emption brought on the basis of an
agreement for sale must be held to be without cause of action as no right of
pre-emption accrued which could be enforced under the law. The said
decision being distinguishable on facts cannot come to the aid of the
petitioner.
62. Mr. Mukherjee would contend that Section 9(2) implies that a transfer made
by the transferee gives rise to a fresh right of pre-emption under Section 8(1)
of the 1955 Act and the right of pre-emption which accrued upon transfer
made by the original transferor in favour of the original transferee perished.
He contended that such argument was not canvassed by the learned
advocates and the judgments in the case of Basanti Bala Sarkar (supra),
Brajendro Nath Patra (supra) and Chand Mohammad (supra) were
delivered by the Court without perceiving that such point of law is involved.
He, thus, contended that the aforesaid decisions are not authorities on the
point of law raised by him and are, therefore, not binding upon this Court as
those were passed sub silentio.
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63. In Gurnam Kaur (supra), the Hon’ble Supreme Court held that a decision is
said to pass sub silentio when a particular point of law involved in the
decision is not perceived by the Court or present in its mind.
64. If the argument of Mr. Mukherjee on the interpretation of Section 9(2) is to
be accepted, then the provisions of Section 9(2) should be held to be a
surplusage as Section 8(1) speaks of accrual of the right of pre-emption
upon transfer of a portion or share of a plot of land. Thus, there would not
be any necessity to incorporate Section 9(2) in addition to Section 8(1). Such
an interpretation would be against the canons of interpretation of statute.
65. The word “transferee” used in Section 9(2) makes it explicit that the
expression ” subject to the right conferred by sub-section (1) of Section 8”
appearing in Section 9(2) implies that the acquisition of the right, title and
interest of the transferee by any person by succession or otherwise shall be
subject to the right of pre-emption that accrued upon the transfer made by
the original transferor in favour of the original transferee. The object behind
such provision is to prevent multiplicity of proceeding and not to give rise to
multiple litigations as urged by Mr. Mukherjee. This view gets further
support from the provisions laid down under Section 10(a) of WBLR Act
which states that on an order under Section 9 being made, the right, title
and interest of the raiyat and of the transferee or of the person mentioned in
Section 9(2) who acquires any right, title and interest in the plot of land
shall vest in the raiyat whose application for transfer has been allowed.
66. Upon a conjoint reading of Sections 8, 9 and 10 of the WBLR Act, this Court
is of the considered view that the right of pre-emption under WBLR Act
imposes a limitation or obligation upon the right of ownership of a property
thereby restricting his unfettered right of sale to any person excepting a
cosharer in plot of land. The bargadar, the contiguous owner and the co-
sharer gets a benefit corresponding to such obligation to purchase such
land. To the mind of this Court, the right of pre-emption runs with the land.
The right of pre-emption that accrued upon transfer of a portion of a plot of
land to any person other than a co-sharer of a raiyat in the plot of land shall
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prevail over acquisition of right, title and interest of the transferee by any
person in such plot of land by succession or otherwise and on an order
being made under Section 9, the right, title and interest of the raiyat and of
the transferee or of the person mentioned in Section 9(2) who acquires any
right, title and interest in the plot of land shall vest in the raiyat whose
application for transfer has been allowed. In other words, all subsequent
acquisition of right from transferee and thereafter shall be subject to the
right of pre-emption that accrued upon the initial transfer.
67. The argument of Mr. Mukherjee on interpretation of Section 9(2), if
accepted, would be contrary to the mandate of Sections 8, 9 and 10 of the
1955 Act.
68. In view of the aforesaid discussion, this Court is not inclined to accept the
submission of Mr. Mukherjee that upon acquisition of the right of the
transferee by “any person”, the right of the pre-emptor shall perish.
69. Though the reasons assigned by the learned Judge of the Appellate Court
are not fully acceptable but this Court finds that the ultimate conclusion
arrived at by the learned Judge on the issue of maintainability of the Misc
Case is correct and does not call for any interference. This Court under
Article 227 of the Constitution can supply reasons if the ultimate conclusion
is correct. The Judgement and order passed by the Learned Additional
District Judge, 2nd Court at Contai dated 09.04.2025 remanding the Misc.
Case to the learned Trial Judge with a direction to decide the rest of the
issues that have already been framed (except Issue No. 1) with a direction to
pass a reasoned judgment is not interfered with by this Court.
70. Accordingly C.O. 2577 of 2025 stands dismissed. There shall be, however,
no order as to costs.
71. The Misc. Case was filed in the month of January 2019. Issues were framed.
Parties have adduced their evidences and documents have been marked as
Exhibits. In view thereof, the learned Civil Judge (Junior Division) 1st
Additional Court (Contai) is requested to dispose of the J. Misc (pre-emption)
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Case No. 01 of 2019 in terms of the directions passed by the Appellate Court
and in the light of the observation made hereinbefore as expeditiously as
possible but preferably within a period of 3 months from the receipt of a
server copy of this order without granting any unnecessary adjournments to
either of the parties.
72. Urgent photostat certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.
(Hiranmay Bhattacharyya, J.)
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