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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, 2

nd

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) 2

nd

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) 1

st

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 Laxminaraya n 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 hecta re) 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 tran sferee 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 acquire s 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 vende e 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 Tashni lwal (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 th e 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, 2

nd

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) 1

st

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.)