IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O.414 of 2008 Pijush Khedia & Ors. VS. Smt. Santi Devi Agarwal & Ors. For the Petitioners :Mr. Siddhartha Banerjee, Adv. Mr. Rahul Karmakar, Adv. Mr. Sudipta Dasgupta, Adv. Mr. Suthirtha Nayek, Adv. For the Respondent Party no. 1 :Mr. Jishnu Chowdhury, Sr. Adv. Mr. Souradeep Banerjee, Adv. Mr. S. Sen, Adv. Ms. Sanjana Sinha, Adv. Last Heard On :13.05.2025 Judgement On :22.05.2025 Bibhas Ranjan De, J. : 1. Challenge of this civil order is the judgment and order dated 12th December 2007 passed in connection with Misc. Appeal no. 12 of 2007 wherein Ld. Additional District Judge, 1st Court, at Purulia 2 reversed the order passed by Ld. Civil Judge, Junior Division, Purulia passed in connection with Misc.(pre-emption) Case no. 125 of 1997. Facts in brief:- 2. One application under Section 8 of the West Bengal Land Reforms Act, 1955 (for short WBLR Act) was filed with intent to pre-empt the land mentioned in the schedule to the application. Municipal holding no. C/177 belonged to one Onkar Mal Khadia, father of the original petitioner, whose name was recorded against R.S. Plot no. 5906, R.S. Khatian no. 13979. After demise of said Onkar Mal Khadia, the said property devolved upon his five sons namely Promod, Gopal, Rajesh, Dilip & Somnath. After demise of Promod his wife Kusum Devi Khadia and his children inherited the same. After death of Onkar Mal Khadia all his legal heirs partitioned their properties and used to possess their respective allotted portion. 3. Heirs of Promod sold their allotted portion to one Kiriti Bhusan Majee and Smt. Sarala Majee vide sale deed dated 21.02.1990. Kusum Devi Khadia wife of Late Promod Khadia sold rest portion to one Somnath Majee by a deed dated 22.04.1992. Subsequently, said Kiriti Buhsan, Smt. Sarala and Somnath 3 Majee sold three Kathas of land to the predecessor in-interest of the petitioners, Gopal Kedia by three separate registered deeds dated 7th January, 1994. Thereafter, petitioner constructed boundary over his land. 4. Opposite party no. 2 and her husband disclosed that opposite party no. 1 purchased portion of the holdings i.e. 287/K/C-177, 287/J/C-177 and 287/L/C-177 from opposite party no. 2 to 4. On inquiry, the petitioner came to know that the opposite party no. 2 to 4 have sold away the scheduled land to opposite party no. 1 by virtue of three (3) sale deeds dated 20.06.1997 without serving any notice under Section 5 (5) of the WBLR Act upon the petitioner. After knowing the transfer, petitioner requested the opposite party no. 1 to sale the property in his favour but it was refused. Petitioner claimed himself to be a co-sharer raiyat of the land which was transferred to a stranger/opposite party no. 1 who was not a co-sharer. Petitioner also claimed the property being adjoining land owner having largest common boundary. So the pre-emption application was filed after making statutory payment of Rs. 60,000/- out of total consideration money of Rs. 1,20,000/-. 4 5. Opposite party contested the case by filing written objection contending, inter alia, that the application under Section 8 of the WBLR Act is not maintainable in respect of three (3) separate sale deed and also denied the claim of co-sharer and adjoining land owner. It is also contended that pre-emption on the ground of vicinage is not maintainable qua the property other than agricultural land. It has been further contended that opposite party no. 1 purchased the scheduled land for total consideration money of Rs. 1,20,000/- and opposite party no. 2 to 4 also proposed the petitioner to purchase the land but petitioner offered a very low price and that was the reason why they sold the property to the opposite party no. 1. Observation of the Trial Court:- 6. Ld. Trial Judge recorded evidence of this case and framed issues on the point of maintainability of the application under Section 8 of the WBLR Act and the issue of entitlement of the petitioners in terms of being co-sharers or adjoining land owners. 7. With regard to maintainability of the application, Ld. Judge relied on a case reported in 82 C.W.N. 530 and recorded his finding to the effect that petitioner is entitled to pre-empt land transferred by three (3) separate sale deeds, in single application. Ld. Judge 5 also recorded his finding that short deposit of consideration money cannot lead to rejection of the application. 8. In dealing with the issue of entitlement, Ld. Judge opined that legal heirs of Promod Khedia sold out the land from their exclusive share to Bhushan Majee and Smt. Sarala Majee on 21.02.1990 and later on sold out their remaining share to Somnath Majee by virtue of another deed on 22.04.1992. It was further observed that after demise of Omkar Mal Khedia, his legal heirs partitioned the land among themselves and recorded their names in separate holdings. However, purchasers (opposite party no. 2 to 4) of the share of Promod Khedia sold out the property to opposite party no. 1 by three (3) registered sale deeds dated 20.06.1997. Ld. Judge disbelieved such plea of partition of the land and petitioners were held co-sharer of the subject plot. Accordingly, the pre-emption application was allowed and petitioners were directed to deposit balance amount of Rs. 60,000/- along with 10% of that amount. Observation of the Appellate Court:- 9. Ld. Appellate Court, by referring to West Bengal Land Reforms (Amendment) Act, 2000, has recorded that after demise of the original owner Onkar Mal Khedia, all his five (5) sons became 6 separate raiyats of the land to the extent of 1/5th share. Accordingly, the legal heirs of said Onkar Mal Khedia were not co-sharer within the meaning of Section 2 (6) of the WBLR Act. Ld. Appellate Court did not consider the plea of adjoining land owner in absence of any convincing evidence. As a sequel, Ld. Appellate Court allowed the Misc. Appeal and set aside the order of the Trial Judge. Argument Advanced:- 10. Mr. Siddhartha Banerjee, Ld. Counsel appearing on behalf of the petitioners has submitted that pre-emption application was initially filed in respect of land transferred by three (3) separate deeds with consideration money to the tune of Rs. 1.2 lakhs and individual sale consideration amount of each plot of land is Rs. 40,000/-. It is submitted that at the time of filing pre-emption application petitioners deposited Rs. 60,000/- covering the amount qua one of the sale deeds being Rs. 44,000/- in total. Therefore, according to Mr. Banerjee, principle laid down by the Hon’ble Apex Court in Barasat Eye Hospital and others vs. Kaustabh Mondal, ( 2019) 19 SCC 676 and Abdul Matin Mallick vs. Subrata Bhattacharjee (Banerjee) and others, (2022) 7 SCC 147, is not applicable in the case at hand. 7 11. Mr. Banerjee has further submitted that Gopal Khedia was allotted a portion of plot of land being no. 5906 and Gopal Khedia also purchased 3 cottahs of land from the share of the estate of Promod Khedia from the said Majhees and claim for adjacent land owner was with respect to Gopal Khedia as a contiguous land owner after partition whereas, the claim for co-sharer was based on the purchase of 3 cottahs of land from the estate of Promod Khedia on January 7, 1994. Therefore, claim of the petitioners being adjacent land owners as well as co-sharers are justified. 12. In support of his contention, Mr. Banerjee has placed reliance on the following cases:-  Samarendra Jana vs. Basanta Kumar Shit, 82 CWN 530  Mohammad Jabbas Ai & Ors. vs. Rahima Bibi, 1983 SCC OnLine Cal 68  Ramesh Kumar vs. Kesho Ram, 1992 Supp (2) Supreme Court Cases 623 13. In stark contrast, Mr. Jishnu Chowdhury, Ld. Senior Counsel, appearing on behalf opposite party no. 1 countered that there is hardly any scope to opt for land qua one out of three (3) deeds by changing their stance, for the first time before this Court. It is 8 submitted that pre-emption application was filed in respect of land of all three deeds and proceeding was continuing till the end when pre-emption application was allowed in favour of the pre- emptors/ petitioners. Such claim, according to Mr. Chowdhury, in respect of one of the deeds would amount to circumventing the law laid down by the Hon’ble Apex Court in Barasat Eye Hospital (supra) and Abdul Matin Mallick (supra). 14. Mr. Chowdhury by referring to provisions of Section 8 & 9 of the WBLR Act has contended that pre-emption application filed with short deposit is not at all maintainable in terms of the principle handed down by the Hon’ble Apex Court. 15. In support of his contention, Mr. Chowdhury has relied on the following ratios:-  Barasat Eye Hospital and others vs. Kaustabh Mondal, (2019) 19 SCC 676  Abdul Matin Mallick vs. Subrata Bhattacharjee (Banerjee) and others, (2022) 7 SCC 147  Kaushyla Pandey vs. Jaharlal Hati and another, 2021 SCC Online Cal 4062  Barun Kanti Majumdar and others Versus Bijoy Kumar Marothi and other, 2024 SCC Online Cal 3426 9  Lipika Naskar & Anr. Versus Ajoy Naskar and Ors., CO 4201 of 2023  Chitta Ranjan Mishra Versus Subrata Majhi and Others, CO 451 of 2023  Suzuki Parasrampuria Suitings Private Limited Versus Official Liquidator of Mahendra Petrochemicals Limited and other, (2018) 10 SCC 707  Mumbai India International Airport Private Limited Versus Golden Chariot Airport and another, (2010) 10 SC 422  Prahlad Singh -Versus-Col. Sukhdev Singh, (1987) 1 SCC 727  Santana Sengupta Versus Bidyasagar Mondal and others, 2023 SCC Online Cal 5356 16. Upon meticulous examination, the legal precedents invoked by the Ld. Counsel Mr. Banerjee, though erudite in their own right, bear neither factual consonance nor judicial semblance to the intricate tapestry of circumstances present before this Court. 17. Whereas, Barasat Eye Hospital (supra) laid down the following principle:- 10 “35. As we have discussed above, once the time period to exercise a right is sacrosanct, then the deposit of the full amount within the time is also sacrosanct. The two go hand- in-hand. It is not a case where an application has been filed within time and the amount is deficient, but the balance amount has been deposited within the time meant for the exercise of the right. We are saying so as such an eventuality may arise, but in that case, the right under the application would be triggered off on deposit of the amount which, in turn, would be within the time stipulated for triggering the right. That not having happened, we are of the view that there cannot be any extension of time granted to the respondent now, to exercise such a right. This is, of course, apart from the fact that this speculative exercise on behalf of the respondent has continued for the last fourteen years, by deposit of 50% of the amount. 18. Drawing upon aforementioned established jurisprudence, the esteemed precedents of Abdul Matin Mallick (supra) meticulously upheld and eloquently expounded upon the selfsame principle. 19. The cases of Tapan Kumar Chandra (supra), Kaushyla Pandey, Barun Kanti Majumdar (supra), Lipika Naskar (supra ) & Santana Sengupta (supra) faithfully adhered to and reinforced the cardinal principle of Barasat Eye Hospital (supra) and Abdul Matin Mallick (supra). 20. In Suzuki Parasrampuria (supra), Mumbai India International Airport (supra) and Prahlad Singh (supra), 11 Hon’ble Apex Court held that a litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. Hon’ble Apex Court took assistance of a case of Amar Singh vs. Union of India, (2011) 7 SCC 69 wherein the principle was handed down in paragraph 50 which runs as follows:- “ 50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.” Analysis:- 21. In the matter of significant judicial oversight, both the Learned Trial Judge and the Learned Appellate Court devoted their attention predominantly to the question of co-sharership, while regrettably overlooking a fundamental procedural deficiency. The pre-emptor/petitioner herein had failed to fulfill the cardinal requirement of depositing the complete consideration amount contemporaneous with the filing of the pre-emption application, thereby contravening the explicit mandates enshrined in Section 8 of the WBLR Act. It is particularly noteworthy that both judicial 12 forums abstained from engaging with these statutory imperatives, despite the existence of well crystallized principles laid down by the Apex Court on this pivotal aspect. 22. It stands as an incontrovertible matter of record that the petitioner, in manifest contravention of the statutory imperatives enshrined under Section 8 of the WBLR Act, failed to tender the complete consideration amount of Rs. 1,20,000/- at the crucial juncture of instituting the pre-emption proceedings. 23. Prior to delving deeper into the matter at hand, it becomes imperative to illuminate the provisions enshrined within Section 8 and 9 of the WBLR Act, specifically those pertaining to the paramount obligation of deposition of the complete consideration amount contemporaneously with submission of the pre-emption application. 24. Provision of Sections 8 & 9 of the WBLR Act are reproduced as follows:- “8. Right of purchase by co-sharer or contiguous tenant. —(1) If a portion or share of a [plot of land of a raiyat] [Substituted by Act 31 of 2000, w.r.e.f. 7.8.1969.] is transferred to any person other than a [co- sharer of a raiyat in the plot of land] [Substituted ibid, w.r.e.f. 7.8.1969.], [the bargadar in the plot of 13 land] [Substituted ibid, w.r.e.f. 7.8.1969.] may, within three months of the date of such transfer, or] any [co- sharer of a raiyat in the plot of land] [Substituted ibid, w.r.e.f. 7.8.1969.] 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 land] [Substituted ibid, w.r.e.f. 7.8.1969.] may, within four months of the date of such transfer, appiy to the [Munsif having territorial jurisdiction,] [Substituted by West Bengal Land Reforms (Amendment) Act, 1972.] for transfer of the said portion or [share of the plot of land] [Substituted by Act 31 of 2000, w.r.e.f. 7.8.1969.] to him, subject to the limit mentioned in [section 14M,] [Substituted by West Bengal Land Reforms (Amendment) Act, 1972.] 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 raiyat in a plot of land] [inserted by West Bengal Land Reforms Act No. 50 of 1981, w.r.e.f. 7.8.1969.] and a raiyat possessing land [adjoining such plot of land] [Substituted ibid, w.r.e.f. 7.8.1969.] apply for such transfer, the bargadar shall have the prior right to have such portion or [share of the plot of land] [Substituted by Act 31 of 2000, w.r.e.f. 7.8.1969.] 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] [Substituted by West Bengal Land Reforms Act No. 50 of 1981, w.r.e.f. 7.8.1969, for "Provided that if".] a [co-sharer of a raiyat in the plot of land] [Substituted ibid, w.r.e.f. 7.8.1969.] and a raiyat possessing land [adjoining such plot of land] [Substituted ibid, w.r.e.f. 7.8.1969.] both 14 apply for such transfer, the former shall have the prior right to have such portion or [share of the plot of land] [Substituted by Act 31 of 2000, w.r.e.f. 7.8.1969.] transferred to him, and in such a case, the deposit made by the latter shall be refunded to him:[Provided also] [Substituted by West Bengal Land Reforms Act No. 50 of 1981, w.r.e.f. 7.8.1969, for "Provided further".] that as amongst raiyats possessing lands [adjoining such plot of land] [Substituted ibid, w.r.e.f. 7.8.1969.] 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 hiba-bil-ewaz, or(c)a mortgage mentioned in section 7,(d)a transfer for charitable or religious purposes or both without reservation of any pecuniary benefit [for any individual, or] [Substituted by ibid, for "for any individual."](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. [Clause (e) and Explanation inserted by West Bengal Land Reforms Act No. 50 of 1981, w.r.e.f. 7.8.1969.]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 o by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every 15 such application shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provision of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972. 9. Revenue Officer 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 day of transfer, and rent or revenue, cases 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] [Substituted by Act 31 of 2000, w.r.e.f. 7.8.1969.] be transferred to the applicant 16 and on such order being made, the portion or [share of the plot of land] [Substituted by Act 31 of 2000, w.r.e.f. 7.8.1969.] shall vest in the applicant.(2)When any person acquires the right, title and interest of the transferee in [such plot of land] [Substituted by Act 31 of 2000, w.r.e.f. 7.8.1969.] 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] [Substituted by Act 31 of 2000, w.r.e.f. 7.8.1969.] or a raiyat possessing [land adjoining the plot of land or bargadar] [Substituted by Act 31 of 2000, w.r.e.f. 7.8.1969.].(8)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] [Substituted by Act 31 of 2000, w.r.e.f. 7.8.1969.] the Munsif may apportion the portion or [share of the plot of land] [Substituted by Act 31 of 2000, w.r.e.f. 7.8.1969.] in such manner and on such terms as he deems equitable.(4)Where any portion or share of a [plot of land] [Substituted by Act 31 of 2000, w.r.e.f. 7.8.1969.] 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] [Substituted by Act 31 of 2000, w.r.e.f. 7.8.1969.] 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 17 the 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.” 25. In the intricate tapestry of the WBLR Act, when one weaves together the provisions of Section 8 & 9, a clear pattern emerges that any petitioner seeking to exercise their pre-emption rights must, at the very threshold of filing of their application, come forth with not only the complete consideration amount specified in the deed, but also an additional layer of 10% of that amount, much like a protective golden thread binding the entire legal fabric together. 26. Section 8 of the WBLR Act outlines the process for exercising pre-emption rights, particularly concerning the deposit of consideration money. A key requirement is that the pre-emptor 18 must deposit the full sale consideration amount, along with an additional 10% of that amount, to validate their application. This deposit is a mandatory pre-condition before any further investigation or inquiry under Section 9 of the Act can proceed. Therefore, unless such deposit is made, right of pre-emptor does not even trigger off. 27. At the risk of reiterating the matter, I draw attention to esteemed Mr. Banerjee’s compelling submission. He artfully contended that once the Learned Appellate Court granted permission for the introduction of additional evidence, the prudent course of action would have been to remand the matter back to the Trial Court for the purpose of recording evidence. Furthermore, he emphasized that natural justice demanded the petitioner be accorded the opportunity to exercise discretion in selecting a particular parcel of land from among three (3) deeds, especially considering that the petitioner had already demonstrated good faith by depositing the complete consideration amount pertaining to one of the sale deeds. 28. In the intricate tapestry of the legal proceedings, while matters of co-sharership and supplementary evidence under Order 41 Rule 27 of the Civil Procedure Code may cast their shadows, they 19 cannot emerge as the determining beacons of justice in the case at hand, particularly when the pre-emption application stands on fragile ground, having been filed without fulfilling the fundamental requirement of depositing the complete consideration amount – a clear transgression of the sacred mandate enshrined in Section 8 of the WBLR Act. 29. Therefore, I must respectfully disagree with Mr. Banerjee’s contention regarding petitioner’s right to pre-empt land. While the petitioner seeks pre-emption rights across three separate deeds, petitioner deposited an amount corresponding to merely one deed’s consideration. This selective approach, attempting to pre-empt land from a single deed while making insufficient deposit, fundamentally contravenes the statutory requirements laid down under Section 8 of the WBLR Act. Therefore, such partial compliance cannot sustain a valid pre-emption claim. 30. In the light of the profound jurisprudential consideration elucidated heretofore, and in consonance with the well- crystallized principles enunciated by the Hon’ble Apex Court, it is manifestly evident that neither can the Trial Court bestow its imprimatur upon the belated deposit of the residual sum, nor can the Learned Appellate Court, in its judicial wisdom, turn a 20 blind eye to the patent non-observance of the inexorable mandates enshrined within Section 8 of the WBLR Act. 31. Upon meticulous examination, the judicial determinations rendered by both the esteemed Trial Court and the venerable Appellate Court, in their collective wisdoms, are found to be bereft of sustainable legal foundation and jurisprudential merit. 32. As a sequel, pre-emption application is found not maintainable. The pre-emptors/petitioners herein are entitled to the refund of the amount deposited by them, together with interest, if any, earned on the same, in case it has been kept in an interest bearing deposit. 33. Revision application being no. CO 414 of 2008 stands dismissed. However, there shall be no order as to costs. 34. Connected applications, if there be, also stand disposed of accordingly. 35. Parties to act on the server copy of this order duly downloaded from the official website of this Court. 36. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities. [BIBHAS RANJAN DE, J.]