GURUDAS PANDA Vs. KUCHAL PROSAD MAITY

JUDGEMENT

(1.) THESE two Rules arise out of two applications for preemption under section 24 of the Non-Agricultural Tenancy Act (being nos. 6 and 34 of 1960) before the Munsif of Midnapore. The facts which are mostly admitted may be briefly stated as follows: there was a jama of Rs. 28-1-7 pies for 1. 39 acres of land recorded in khatian no. 51, and held by one Chandra Mohan Agasthi under the landlords who may be referred to as Abinash Chandra Mitra and others. Anil Kumar and Ajit Kumar, who had 1/3rd share in the above holding, transferred their 1/3rd interest by a kobala dated 5. 7. 54 to the petitioner and the opposite party no. 3 and the petitioner thereby became a co-sharer in this holding. Subsequently, each of two other co-sharers, Sarat and Sudhirsimilarly transferred his 1/3rd interest. The first transfer was in favour of Kuchal Prosad Maity and the other was in favour of Shiba Prosad Majumdar and they are the opposite parties in the two applications respectively. The petitioner now claims pre-emption in respect of these two transfers which took place on the same date, i. e. , 16. 3. 56.

(2.) TWO points were taken in the courts below viz. , that the applications were barred by limitation and secondly, that the tenancy having been divided, the application for pre-emption was not tenable. Before us it is only the second point which has been agitated. At this stage it is conceded that the provisions of the Bengal Tenancy Act as regards pre-emption are attracted to these transfers by virtue of section 71 of the Non-Agricultural Tenancy Act, 1949.

(3.) THE only question for our determination is whether there has been a division of the holding or a distribution of the rent payable in respect thereof within the meaning of section 88 of the Bengal Tenancy Act, because It is not disputed that if the holding had been duly divided or the rent distributed according to that provision, an application for pre-emption will no longer be tenable in respect of a transfer of any of the portions so divided. Now, in the present case, prior to the transfer in favour of the petitioner there was a partition of the holding as between the three groups of cosharer tenants, holding 1/3rd interest each, by a registered deed of partition dated 21st Agrahayan, 1360 B. S. and the evidence is that it was followed by a division of the land by metes and bounds. Subsequently, the landlord also appeared to have recorded the jama under separate holdings at the rate of Rs. 9 and odd for each. It is urged by Mr. Panda on behalf of the petitioner that there is no written instrument showing the consent of the landlord and all the co-sharer tenants as required by section 88 (1) of the Bengal Tenancy Act.