JYOTISH CHANDRA DAS Vs. DHANANJOY BAG

JUDGEMENT

(1.) SECTION 6 (2) of the West Bengal Estates Acquisition Act, 1953, read with rule 4 of the Rules framed under the Act, has produced apparently anomalous results, the principles for the interpretation of which we have laid down in (1) Abharan Chandra v. Sanat Kumar, (1963) 68 C. W. N. 574. In the present case, a further elaboration of those principles appears to be necessary so as to be applicable to different situations. Dhananjay Bag and others were co-sharers of three tenancies recorded in khatians 102, 24 and 48 of Mouza Daluigachha. The tenancy in khatian 102 was recorded as a mokarari sthitiban raiyati holding while the holdings in khatians 24 and 48 were recorded as korfa holdings to which section 48g of the Bengal Tenancy Act was attracted, or, in short, occupancy under raiyati holdings. One of the co-sharers in these holdings, Krishna Chandra Bag, transferred his interest to Jyotish Chandra Das and others by a registered Kobala of May 6, 1959. Thereupon Dhananjay Bag, another co-sharer in the holdings, brought the application under section 26f of the Bengal tenancy Act, for pre-emption, which was registered as Misc. Case no. 170 of 1959 before the Munsif of Chandernagore. The transferees (Jyotish and others) resisted this application on the ground that no application for pre-emption under section 26f of the Bengal Tenancy Act, was maintainable in respect of a transfer of shares in mokarari raiyati or under-raiyati holdings.

(2.) THE objection of the transferees was heard by the learned Munsif as a preliminary point. He upheld the objection and disallowed the application in Toto on the ground that it was not maintainable. In his view, a mokarari raiyat or an under-raiyat was not, by 7/irtue of rule 4 of the West Bengal Estates Acquisition Rules, elevated to the status of an occupancy raiyat and was not, accordingly, entitled to claim pre-emption under section 26f of the Bengal Tenancy Act. On appeal, the learned District Judge of Hooghly modified the decision of the learned Munsif and held that though the application for pre-emption was not maintainable in respect of the under raiyati holding recorded in khatians 24 and 48, it was maintainable in respect of the mokorari holding recorded in khatian no. 102. He accordingly directed the Munsif to dispose of the application on the merits in respect of Khatian no. 102. Both the parties, having been aggrieved by the decision of the District Judge in part, have moved this Court in revision in these two Civil Rules. C. R. 3589 has been brought by the transferee Opposite Parties in the preemption case and they urged that the learned District Judge has erred in holding that an application under section 26f was maintainable in respect of a mokorari raiyati holding. The petitioner in the pre-emption case, Dhananjay, has brought C. R. 3812, urging that the learned District Judge has erred in holding that an under-raiyati holding with occupancy right had no right of pre-emption by virtue of rule 4 of the Rules framed under the West Bengal Estates Acquisition Act.

(3.) THESE two Rules have been heard by us together, as they incolve a common question of law, viz. , the effects of rule 4 (a) of the Rules. Since we have fully dealt with the relevant provisions in our previous judgment in (1) Abharan Chandra's case (ibid.) referred to at the outset, we may start straightaway with rule 4 (a), as it stood at the material point of time: