RAM KISSIN SHAW Vs. LACHMONIA DEBI

JUDGEMENT

(1.) This Revisional Application arises out of a proceeding under section 24 of the West Bengal Non-agricultural Tenancy Act, 1949 filed by the opposite party No. 1, Lachmonia Devi. It is the case of both parties that Lakshman Chandra Sadhukhan, Dulai Chandra Sadhukhan and Ram Chandra Sadhukhan were Co-sharers tenants inrespect of a non-argicultural tenancy at an annual rent of Rs.20/- recorded in Khatian No.650, Mouza Bhatpara, P.S. , Jagatdal, District 24-Parganas. 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 n On-agricultural tenancy of Ramkisen Shaw, the present petitioner.

(2.) On 25th May, 1974 the learned Munsif, 1st Court, Barasat had allowed the opposite party No.l 's application under section 24 of the West Bengal Non-agricultural Tenancy Act for Pre emperor. the l/3rd interest acquired by the petitioner, who was admitted a stranger purchaser. On 4th July, 1975 the lower appellant had allowed the appeal preferred by the present petitioner and applying the ratio of the decision reported in the case of Madan Mohan Ghosh v. Sishu Bala Atta, 76 CWN 1058, had dismissed the opposite party no. 1's application for pre-emption. The opposite party no.1 against the said order obtained Civil Rule No. 3744 of 1975. A Division Bench of this Court by their Judgment dated 14th June, 1978 set aside the decision of the lower appellate court. The Division Bench held that the ratio of the decision in the case of Madan Mohan Ghosh v. Sishu Bala Atta, (Supra) was inapplicable in case of non-agriculture tenancies. The Division Bench further held that in view of the decision in the case of Abinash Chandra Dan and Ors. v. Chakradhar Khatua & Ors. 55 CWN 717, even when there had been partition of the lands of a holding itself had not been split up by creation of separate holdings co-sharer tenants of the holding would still have the right to preempt a transfer of a share in favour of stranger purchaser. The learned Judges remitted the case back to the lower appellate court. The learned Additional District Judge by his judgment 'dated 12th December, 1978 dismissed the Misc. Appeal preferred by the present petitioner and affirmed the order under section 24 of the West Bengal Non-agricultural Tenancy Act passed by the learned Munsif in favour of the opposite party no. 1.

(3.) The learned advocate on behalf of the petitioners tried to urge before us that by an order of the Junior Land Reforms Officer passed during the pendency of the present pre-emption proceedings, the tenancy in question had been sub-divided by creation of separate jamas. The opposite party no. 1 has filed an affidavit stating that the said order for separation of the jama had been since recalled by the Junior Land reforms officer. Therefore, we must proceed on the basis that no order has yet been passed for splitting up of the jama as claimed by the Petitioner.