RUKMINI DEBI Vs. MIHIR BALA SARKAR

JUDGEMENT

(1.) This Rule is directed against the appellate order of the District Judge, Bankura dated November 27, 1972 in Miscellaneous Appeal No. 7 of 1972 affirming the order of the Subordinate Judge, Bankura dated January 15, 1973 in J- Misc. Case No. 14 of 1970, allowing an application for pre-emption under Section 24 of the West Bengal Non-agricultural Tenancy Act, 1949 (hereinafter referred to as the Act).

(2.) The disputed land measuring 12 acres of land is the northern half of R. S. Dag No. 203/1431 recorded in R. S. Khatian No. 1206 as Bastu. This plot was part of the big plot No. 203 under Khatian No. 533 in Cadastral Survey. This big plot measuring 1.21 acres was held by three brothers-Gopinath, Lakshmi and Ambika under landlord Gobinda Chandra Das whose interest was recorded in C. S. Khatian No. 529 as Madhya Sattadhikari Chirasthayi Mokarari under the Burdwan Raj as Ghatwali tenure. Gobinda was the benamdar of Jogendra whose sons Rash Behari and Bepin Behari sold their interest in Khatian No. 529 and the under Khatians to Nagendra. Ambika and Gopinath's successor-in-interest Karali sold their 2/3rd raiyati interest in C. S. Dag No. 203 to said Nagendra by a kobala of November 5, 1937 Lakshmi out of about 41 decimals or 1 bigha 4 cottahs 5 ch. of land in his l/3rd share, sold 4 cottahs 13 ch. of land to Nagendra by kobala dated January 17, 1938, giving up about 4 cottahs of land for road. The balance of about 15 cottahs 9 ch. of land was held by him in raiyati interest at the proportionate rent of Rs. 1-2-4 gd under Nagendra, who, as we have seen, had already purchased the landlord's interest. By a registered pattah dated January 18, 1938, in consideration of a selami of Rs. 90/- Nagendra on receipt of a kabuliyat in similar terms gave permanent raiyati mokarari right to Lakshmi in respect of his raiyati interest aforesaid for agricultural purposes.

(3.) By a lease dated January 17, 1938 Nagendra out of, his khas land of plot 203 settled 7 cottahs 3 ch. 6 gd equivalent to 12 decimals of land to Baneswar Pal for the purpose of building structures. The deed recited that after acquisition of landlord's interest and thereafter of 2/3rd of tenant's share, Nagendra on amicable partition with Lakshmi had been in khas possession of his portion of land a portion whereof was leased out as aforesaid. This deed was signed by both Nagendra and Baneswar and carried a jama of 15 annas. Baneswar in his turn by a kobala dated February 28, 1939 sold to Mihirbala and Bibhabati his leasehold mokarari interest in 12 decimals of land of Dag No. 203 under the said jama with full rights to build and construct buildings, well privy thereon for residence or letting out Mihir Bala erected her house on the southern portion of the land under the lease which was incorrectly recorded only in her name as 'korfa' and under Section 48G (1) (2) B. T. Act and Rule 4 E. A. Rules raiyati Dakhalisatta to remain under the State. Bibhabati in Title Suit No. 230 of 1967 obtained a declaration of her moiety share in the said land and thereafter on February 1, 1969 sold to Sm. Rukmini, the petitioner before us, for a consideration of Rs. 10,200/- the northern half of the aforesaid plot which it was recited in the document as being in her exclusive possession by demarcation bounded by a compound wall, after their joint purchase obviously from Baneswar, the proportionate rent for the land sold being 47-P payable to J. L. R. O. Bankura. It was not mentioned in the document that Mihirbala was a co-sharer in respect of the land held under the said jama and no notice of the sale was served on her.