RAMKRISHAN SHAW Vs. LACHMANIA DEVI

JUDGEMENT

(1.) The present application for review and/or reconsideration of the order dated 9th September 1986 passed by the Division Bench consisting of two learned Judges in disposing Civil Rule No. 741 of 1979 has been filed supported by an affidavit swum on 24th March, 1987.

(2.) Since one of the learned judges constituted the bench in disposing Civil Rule 741 of 1979 has since been retired, this matter has appeared before this bench who was the other Judge in disposing Rule No. 741 of 1979. It transpires from the materials on record that a revisional application was filed challenging the judgment and/or order dated 12.12.1978 passed by the learned Additional District Judge at Barasat, 24-Parganas in Misc. Appeal 421 of 1974 arising out of order dated 20.5.1974 passed by the learned Munsiff, 1st Court at Barasat in Misc. No. 232 of 1972. The revisional application related to an appellate order in a pre-emption proceeding under section 24 of the West Bengal Non-agricultural Tenancy Act, 1949. It further transpires from the materials on record that Lakshman Chandra Sadhukhan, Dulal Chandra Sadhukhan and Ram Chandra Sadhukhan were co-sharers tenants in respect of a non-agricultural tenancy at an annual rent of Rs. 20/- recorded in Khatian No. 650, Mouja Bhatpara, P.S. Jagatdal, District 24-Pargams. On 13th September, 1978 by purchasing Ramchandra's interest, the opposite party No. 1 become a co-sharer tenant. On 25th August, 1970 another co-sharer, Dulal Chandra, sold his right, title and interest in the said non-agricultural tenancy to Ramkrisan Shaw. On 25th May, 1974, the learned Munsiff, 1st Court, Barasat had allowed the application of the opposite party No.1 under section 24 of the West Bengal Non-Agricultural Tenancy Act for pre-emption of the 1/3rd interest acquired by the petitioner who was admittedly a stranger purchaser. On 4th July, 1975, the Lower Appellate Court had allowed the appeal and by applying the ratio of the decision reported in the case of Madan Mohan Ghosh v. Sishu Bala Atta reported in 76 CWN page 1058, had dismissed the application for preemption against the said order, a Civil Rule No. 3744 of 1975 was obtained. A Division Bench of this Court by their judgment dated 14th June, 1978 had set aside the decision of the decision of the lower appellate Court. The Division Bench held that the ratio of the decision in the case of Madan Mahan Ghosh v. Sishu Bala Atta (supra) was inapplicable in the case of non-agricultural tenancies. The Division Bench further held that in view of the decision in the case of Abinash Chandra Jana and Ors. v. Chakradhar Khama & Ors. in reported in 55 CWN page 717, even when there had been a partition of the lands of a holding but the holding itself had not been split up by creation of separate holdings, co-sharers of tenants of the holdings would still have the right to transfer of a share in favour of a stranger purchaser. After a remand, the learned Additional District Judge by his judgment dated 12th December, 1978 dismissed the Misc. Appeal by affirming the order of the learned Munsiff under section 24 of the West Bengal Non-agricultural tenancy Act.

(3.) Being aggrieved by and dissatisfied with the judgment of the learned Additional District Judge at Barasat dated 12th December, 1978 affirming the order of the learned Munsiff as aforesaid, a revisional application was moved and Civil Rule No. 741 of 1979 was issued.