NISHAKAR PAN Vs. MAHEDEB GHOSH

JUDGEMENT

(1.) This Rule has been obtained against an order of the Subordinate Judge, Asansol made on the 17th January, 1968 in Miscellaneous Case No. 2 of 1967 arising out of Misc. Case No. 20 of 1966 in the court of the Munsif, Second Court, Asansol. By this order the petitioners' claim for pre-emption has been refused. The property in dispute is a tank. It is Dag No. 40, P. S. Kansa, Mouza Alma Biswanathpur, District Burdwan. The petitioners, the opposite party No. 3 and one Nishingha Thakur were co-sharers of this tank having Niskar right. The petitioners had 12 annas share in the tank, the opposite party No. 3 had 2 annas share and Nrishingha Thakur had the remaining 2 annas share. On the 14th April, 1954 the West Bengal Estates Acquisition Act, 1953 came into force. In accordance with the provisions of this Act the aforesaid co-sharers retained the tank. In the record-of-rights under the Estates Acquisition Act several Khanda-khatiang were made. These Khanda-khatians show that each of the co-sharers above named was to pay a specified portion of the total rent in respect of specified areas of the tank which they had retained.

(2.) On the 7th July, 1965 the opposite party No. 3, Gopal Chandra Ghosh transferred out of his 2 annas share 5 pice share in the tank to the opposite parties Nos. 1 and 2. On the 28th February, 1966 the petitioners applied for pre-emption under Section 24 (1) of the West Bengal Non-Agricultural Tenancy Act, 1949. The relevant provisions of this Section are that if a portion or share of land is transferred, the immediate landlord or one or more co-sharer tenants of such land may, within four months of the service of notice issued under Section 23, apply to the Court for such land or portion or share thereof to be transferred to himself or themselves, as the case may be.

(3.) In the instant case the application under Section 24 (1) was allowed by the Munsif but the Subordinate Judge has let aside the Munsifs order.