Madan Mohan Ghosh vs Madan Mohan Ghosh

S.K. Bhattacharya, J.—This application by the pre-emptor under Article 227 of the Constitution of India is directed against the concurrent decisions of the Courts below dismissing the Petitioner''s application for pre-emption u/s 8 pf the West Bengal Land Reforms Act (hereinafter referred to as ''the Act''). The facts leading up to the present application may briefly be stated. The Petitioner alleges that he was a co-sharer in respect of a holding recorded in khatian No. 291 of mouza Akna, P.S. Polba, dist. Hooghly, along with opposite parties Nos. 2 to 4 and had been in joint possession thereof when the said opposite parties transferred 73 of land of the aforesaid holding to opposite party No. 1 on March 24, 1965. No notice of the said transfer was served on the Petitioner. The Petitioner filed the instant application on April 12, 1968, after depositing the amount of consideration along with the compensation alleging that he came to know about the said transfer on April 1, 1968. The application was opposed by opposite party No. 1 inter alia on the ground that the application was barred by limitation and the Petitioner was no longer a co-sharer in the holding and as such the application was not maintainable.

The question of maintainability of the application was taken up for hearing by the learned Munsif as a preliminary point and he found against the Petitioner on, this point and accordingly, dismissed the application. On appeal, the learned Additional District Judge, First Court, Hooghly, agreed with the learned Munsif and dismissed the appeal. Both the Courts relied upon the Full Bench decision of this Court in the case of Madan Mohan Ghosh and Others Vs. Sishu Bala Atta and Others, . Against the said decision of the learned Additional District Judge, First Court, Hooghly, the Petitioner moved this Court and obtained the instant Rule.

Mr. Biswas, learned Advocate appearing for the Petitioner in this application, has contended that the Courts below erred in applying the Full Bench decision in the instant case inasmuch as the said decision was given on an application filed u/s 26F of the Bengal Tenancy Act and not on an application filed u/s 8 of the West Bengal Land Reforms Act. Mr. Biswas''s contention is that the concept of a holding in the West Bengal Land Reforms Act is entirely different from that of a holding under the Bengal Tenancy Act. Moreover, the decision was rendered in connection with an application for pre-emption under a provision of law that stood repealed by notification dated September 25, 1965, in view of the amendment of Sub-rule (3) of Rule 4 of the West Bengal Estates Acquisition Rules as amended on August 1, 1964. The Full Bench in the case of Madan Mohan Ghosh v. Sishubala Atta Supra (1070, 1075) held that after the enforcement of chap. VI of the West Bengal Estates Acquisition Act and vesting of interest of raiyats and under-raiyats on and from April 14, 1956, the co-sharer raiyats of a holding ceased to be co-sharers and each raiyat of the holding became a direct tenant under the State in respect of the land of that holding which he was entitled to retain under Sub-section (1) of Section 6. Consequently, the Full Bench proceeded to observe that as the co-sharer raiyats ceased to be co-sharers on and from the date of vesting, the question of exercise of the right of pre-emption u/s 26F could not arise as the condition precedent for the exercise of the right of pre-emption u/s 26F ceased to subsist.

Mr. Biswas''s argument is that the right conferred by Section 8 of the Act was given to the co-sharer raiyat of the holding and not to a co-sharer in the tenancy as was conferred by Section 26F of the Bengal Tenancy Act and there is a material difference between the provision of Section 26F of the Bengal Tenancy Act and Section 8(1) of the West Bengal Land Reforms Act, while Section 26F provides that the right of pre-emption could be exercised against a transferee whose existing interest accrued otherwise than by purchase, Section 8(1) of the Act has not made any such provision. In support Mr. Biswas relied on the Full Bench decision in the case of Hiru Sepai Vs. Sultan Sepai, . In my view, this decision does not assist Mr. Biswas in any manner. The point that arose for decision in the latter Full Bench case is whether a person who becomes a co-sharer of a holding by virtue of prior purchase may be pre-empted by a co-sharer raiyat of the holding in respect of the second or subsequent purchase made by him.

The contention of Mr. Biswas, in my view, cannot be accepted in view of the Full Bench decision in Madan Mohan Ghosh v. Sishubala Atta Supra (1070, 1075). For the Full Bench proceeded on the footing that after enforcement of chap. VI of the West Bengal Estates Acquisition Act, 1953 and vesting of interests of raiyats and under-raiyats, the co-sharer raiyat of a holding ceased to be a co-sharer and each raiyat of the holding became a direct tenant under the State in respect of the land of that holding which he was entitled to retain u/s 6(1) of the West Bengal Estates Acquisition Act. The Full Bench examined a contention similar to that canvassed by Mr. Biswas, the learned Advocate for the Petitioner, from a hypothetical point of view and was inclined to accept Mr. gala''s argument advanced in support of the view taken by them While repelling Mr. Barman''s argument which was somewhat similar to the argument canvassed by Mr. Biswas. After considering Section 6 of the West Bengal Estates Acquisition Act from various standpoints, the Full Bench held that it appeared to them clearly that each intermediary, that is, each raiyat became a direct tenant under the State in respect of the land, which he was entitled to retain under Sub-section (1) of Section 6 of the Act and it did not follow from any of the provisions of that Act that the raiyats of the holding were to continue to hold the land comprised in the 1 holding as co-sharers. After examination of the definition of the ''holding'' under the Bengal Tenancy Act, the Full Bench came to, the finding that even though the land remains undivided till it is demarcated by metes and bounds by the Revenue Officer under sub-paragraph (4) of paragraph 7 of Schedule ''B'' to the Rules, the undivided share of the raiyat in the land, which he is entitled to retain as an intermediary, becomes the subject-matter of a separate tenancy directly under the State on and from the date of vesting. Upon this finding, the Full Bench came to the formulations in para. 24 and answered the circumstances under which the right of pre-emption whether u/s 26F of the Bengal Tenancy Act or Section 8 of the West Bengal Land Reforms Act would be available to a co-sharer raiyat and clearly the instant case did not fall within any of the formulations made in para. 24 of the Full Bench decision referred to above. That being the position learned Courts below were right in dismissing the application and appeal of the Petitioner and the instant application therefore fails.

It is not, therefore, necessary for me to come to any finding on the question of limitation more particularly as the Courts below had not addressed themselves on this point, but as the Petitioner''s application fails I make no finding on that point.

The Rule is accordingly discharged.

In the circumstances of the case, there will be no order as to costs.