SHIBA PROSANNA BANERJEE Vs. MRITYUNJOY KHAN

JUDGEMENT

(1.) The only question that is involved in these Rules is, whether on the partition of the land comprised in the tenancy of non-agricultural tenants without the knowledge and consent of the landlord, such tenancy is split up and the tenants ceased to be co-sharers.

(2.) On Dec. 3, 1961, there was a partition between the co-sharer tenants of the tenancy in question. Upon such partition, Plot No. 1768, of Khatian No. 618, of Mouza Radhanagar, was exclusively allotted to the opposite parties Nos. 2 and 3, Saralabala and Susama, in Civil Rule No. 2049 of 1973. Plot No. 1767 was, however, kept joint between the co-sharers. There is no evidence that such partition was consented to by the landlord. On Oct. 24, 1965, Saralabala and Susama transferred their interest in Plots Nos. 1768 and 1767 to the opposite party No. 1, Mrityunjay Khan, a stranger, without serving any notice on Shiba Prasanna of such transfer. After Shiba Prasanna had come to know of the transfer, on April 10, 1968 he made an application for pre-emption under Section 24 of the West Bengal Non-Agricultural Tenancy Act, 1949 in the court of the Subordinate Judge, Burdwan. The application was resisted by Mrityunjay, the transferee. His contention was that by the said partition Shiba Prasanna ceased to be a co-sharer and, as such, the application for pre-emption was not maintainable. The learned Subordinate Judge overruled the said contention and allowed the application for pre-emption.

(3.) Being aggrieved by the order of the learned Subordinate Judge allowing the application for pre-emption, Mrityunjay preferred an appeal which was heard by the learned District Judge, Second Additional Court, Burdwan. The learned Additional District Judge took the view that as by the partition Plot No. 1768 was allotted exclusively to Saralabala and Susama, Shiba Prasanna ceased to be a co-sharer in respect of that plot and accordingly, his application for pre-emption was not maintainable so far as that plot was concerned. It was, however, held that in regard to Plot No. 1767, Shiba Prasanna was a co-sharer and he could claim pre-emption in respect of that plot. In that view of the matter, the learned Additional District Judge set aside the order of the learned Subordinate Judge in so far as Plot No. 1768 was concerned, but affirmed the same in regard to Plot No. 1767. Being aggrieved by the said order of the learned Additional District Judge, both Shiba Prasanna and Mrityunjay moved this Court under Section 115 of the Civil P. C. and obtained these two Rules.