CALCUTTA HIGH COURT IN THE CIRCUIT BENCH AT JALPAIGURI Item No.18 03.09.2025 Court. No. 1 GB CO 105 of 2025 With CAN 1 of 2025 (application not in file) Sankar Gope VS Bikash Charan De & Ors. Mr. Bikramaditya Ghosh, Mr. Ved Rai, Mr. Mayank Bhandari, Mr. Vivek Saha … for the Petitioner. Mr. Arnab Saha, Md. Shoaib Akhtar … for the Opposite Party No.1. 1. This revisional application arises out of a judgment and order dated May 16, 2025, passed by the learned District Judge, Fast Track, Court-II, Alipurduar in Misc. Appeal No.13 of 2015, affirming the judgment dated April 17, 2015, passed by the learned Civil Judge (Junior Division) at Alipurduar in Misc. Preemption Case No.18 of 2009. 2. Both the learned courts rejected the application for preemption on a common ground that a document prepared at a ‘Salishi Sava’ Exhibit-A, indicated that the petitioner was requested by the opposite party no.2 to purchase the land, but the petitioner ignored 2 such request and denied to accept any letter of communication. 3. The learned appellate court was of the view that service of notice was not to be in any particular from, but the conduct of the parties would be sufficient to assess whether notice was given to the petitioner, prior to the sale. Both the courts went on to observe that Exhibit-A although, was not prepared in the presence of the petitioner nor signed by the petitioner, the factum of notifying the petitioner was established because the opposite party no.2 proved the document. 4. The question is not whether the document at the ‘Salishi Sava’ had been proved. The question is whether the petitioner had a right of preemption on the ground of co-sharership and also on the ground of contiguous ownership. This issue was not decided by either of the courts, rather, the courts were of the view that the petitioner was aware of the sale but he did not show any interest to purchase the property. The right of preemption should fail as preemption was a weak right. 5. The learned trial judge further erred in recording that although the petitioner claimed to be the contiguous owner and a 3 person enjoying the longest boundary, the petitioner was not thoughtful enough to get the land inspected and investigated to enlighten the court. The relevant portion of the order of the trial court is quoted below:- “So taking into consideration the material evidence before the court, it clearly transpires that although the petitioner claimed to be a contiguous owner and a person enjoying the longest boundary was however not thoughtful enough to have the land in dispute inspected and investigated in order to enlighten the court regarding his claim and mere statement that he was contiguous owner or that a person having longest common boundary would not suffice. Picture have to be produced before the court to be proved or to substantiate his claim, in absence of such proof it would not be easy for petitioner to prove the same. On the other hand no mouza map has been submitted before the court to show actual location or position of the pre-empted land.” 6. The petitioner filed the title deeds which were marked as exhibits and the schedule and the description of the land were available from the said deeds for the court to ascertain the longest common boundary. There are no 4 findings on issue no.2 as framed by the learned judge, which is quoted below:- “2. Whether the petitioner has to be able to prove his right of preemption fairly and squarely on all account?” 7. The issue of limitation has also not been decided. There are serious omissions on the part of the learned trial judge and the learned appellate court ignored the above lacuna in the order and proceeded on the basis of the definition of the term ‘notice’ being inspired by the provisions of Section 3 of the Transfer of Property Act. As such, the application is allowed. Both the judgment and order impugned are accordingly set aside. 8. This Court directs that Misc. Preemption Case No.18 of 2009, including the question of limitation should be heard afresh by the learned trial judge on the basis of the evidence already on record. 9. Parties are to act on the basis of the server copy of this order. (Shampa Sarkar, J.)