MD. AZIMUDDIN PRAMANIK Vs. SREE SATYA NARAYAN PRAMANIK

JUDGEMENT

(1.) In this appeal the simple question is whether a contiguous landholder is entitled to pre-empt the land which has been transferred to co-sharer-tenants whose interest in the tenancy accrued by purchase.

(2.) This arises from Miscellaneous Case No.167 of 1978 in the Court of Munsif, Natore. The land in question was transferred by a kabala dated 29 July, 1976 to the appellants Nos.1 to 4; they are co-sharers of the vendor (respondent No. 2) in the tenancy by purchase. Respondent No.1 is a tenant having land contiguous to the land transferred. He filed the Miscellaneous Case seeking pre-emption of the land under section 96 of the State Acquisition and Tenancy Act. His claim was resisted by the appellants-transferees on the ground that their claim being higher in order of preference than that of the contiguous landholder, the latter is not entitled to pre-emption. This contention was accepted by the learned Munsif who refused pre-emption. But on appeal the learned District Judge took the view that the transfer to a co-sharer by purchase is pre-emptible and that as the transferees, though co-sharers by purchase, did not join in the application for pre-emption, the contiguous land-holder is entitled to pre-empt the land, and on this view allowed the pre-emption. His decision was upheld by the learned Single Judge of the High Court Division at Rangpur by the impugned order dated 6 July 1983 in Civil Revision Case No. 22 of 1983. Leave was granted by us to consider whether the pre-emption has been allowed on correct interpretation of section 96 of the State Acquisition and Tenancy Act.

(3.) There is no dispute that a transfer to a co-sharer by purchase is pre-emptible, but the question is whether it is pre-emptible by a contiguous land holder. The learned Single Judge took the view that in this case the co-sharers by purchase namely, the appellants-transferees, did not join with the pre-emptor, contiguous land-holder, in the application for pre-emption, and as such, the latter is entitled to pre-empt the transfer made to the appellants-co-sharers. The learned Single Judge relied upon sub-section (4) of section 96 which provides for a co-sharer-transferee joining in an application for pre-emption already filed. But this subsection, must be read and considered along with other provisions of section 96 particularly, sub-sections (2) and (5) Sub-section (2) Provides that in an application for preemption by a co-sharer tenant, all other co-sharer tenants shall be made parties; a contiguous laud-holder is not a necessary party there. But if an application for preemption is made by a contiguous laud-holder, all the co-sharer-tenants (whether by inheritance or by purchase) and also all other, tenants holding lauds contiguous to the, land transferred, shall be made parties. This distinction between a co-sharer tenant and a tenant having the contiguous land has been again pronounced in definite terms and language in subjection (5). This sub section has set forth the prior rights to purchase under section 96 it is quoted below: