Sankar Prasad Sarkar vs Panchu Gopal Sarkar

Renupada Mukherjee, J.—This Rule involves only one question of law and that question is whether an application for pre-emption u/s 26F of the Bengal Tenancy Act loses its competency because of the vesting of a portion of the lands sought to be pre-empted in the State after the transfer by a co-sharer.

The facts involved in this case are not disputed. Opposite party Panchu Gopal Sarkar was the co-sharer of a raiyati occupancy holding in 8 as share. The remaining 8 as share was owned and possessed by one Sankar Prosad Sarkar. He transferred his right, title and interest in the holding in favour of Malatilata Dhara, opposite party No. 1 of the trial court by a Kobala, dated November 17, 1955. No notice of this transfer was served on Panchu Gopal. He made an application in the trial court on August 2, 1957, for pre-emption of the transferred share after depositing the consideration money with the statutory compensation of 10 per cent. This application was resisted by Sankar Prosad, who was added as opposite party No. 2 in the trial court, on several grounds. I may mention here that Sankar Prosad is claiming to have re-purchased his share from Malatilata.

All the objections raised on behalf of Sankar Prosad were negatived by the trial court which made an order for pre-emption. An appeal was preferred by Sankar Prosad, which was also dismissed. So he has obtained the present Rule. The Rule is being opposed by opposite party No. 1, Panchu Gopal Sarkar.

Mr. Purna Chandra Basu, who supported the Rule, submitted only one point for my consideration. It is an admitted fact that the disputed holding consisted of 5 plots 3 of which were in the khan possession of the tenants. Two plots measuring an area of 48 decimals in 16 as. share, were in the possession of an under tenant. This area vested in the State of West Bengal by the provisions of the West Bengal Estates Acquisition Act and it is an admitted fact that the State has taken possession of those two plots. The result is that if the application for pre-emption finally succeeds, the pre-emptor will get actual and khas possession of only 3 plots which have been described in schedule A of his application and not of the other 2 plots which have been described in schedule B. Mr. Basu argued that this would amount to a partial pre-emption which should not be allowed by any Court.

In support of his contention, Mr. Basu drew my attention to a portion of Section 26F, Sub-section (1) of the Bengal Tenancy Act which lays down that except in the case of certain transfers enumerated in that Sub-section, a co-sharer tenant of a holding may apply for transferring to himself a portion or share of a holding which has been transferred by his co-sharer in favour of some other persons. Mr. Basu contended that Section 26F, Sub-section (1), contemplates the pre-emption of the entire portion of share which may have been transferred by a co-sharer tenant and not any portion of it He further argued that by reason of the vesting of a portion of the transferred lands in the State and by reason of the fact that the State has already taken possession of that portion. Opposite party No. 1 of this Rule can only pre-empt only the remaining portion. He submitted that if the remaining portion is allowed to be transferred to him, then it would amount to a case of partial pre-emption. I have carefully considered this argument of Mr. Basu,. but I do not think that the contention is sound. It is true that a party cannot be allowed to apply for pre-emption by excluding some portion of the land which has been sold by his co-sharer [vide the case 242 Khoka Bairagi and Ors. v. Bhabani Dasi and Anr. (1945) 49 C.W.N. 242 ]. It cannot, however, be said that in the present case the pre-emptor has applied for partial preemption. He has deposited the entire consideration money with statutory compensation and has also prayed for pre-emption of the entire portion sold by his co-sharer. After the sale by his co-sharer a portion of the land vested in the State and the State has also taken possession of that land, but the right, title and interest of the purchaser from the co-sharer of the pre-emptor has not altogether vanished. It has been converted into compensation money. The pre-emptor is certainly entitled to get that compensation money instead of getting that land either in khas or through a sub-tenant. The observations of the court below that the pre-emptor is entitled to claim pre-emption only of the khas plots is not strictly correct. In a recent decision of this Court in Ganesh Chandra Mahata and Anr. v. Sudarshan Dey and Ors. (1957) 62 C.W.N. 360, it has been held by Sen, J., that a right of pre-emption which has accrued to a party u/s 26F of the Bengal Tenancy Act, cannot be affected by the vesting of that land in the State subsequent to the accrual of that right. The present case is very similar to the case decided by Sen, J. Mr. Basu wanted to, differentiate the present case from the above noted case by pointing out that in the present case the State has taken possession of a portion of the holding. In my opinion that is no real ground for distinction because the compensation money is there.

In the result I am unable to accept the contention of Mr. Basu that this is a case of partial pre-emption. In my opinion the application for pre-emption has been rightly allowed by the courts below and there is no ground for interference in this Rule, The Rule is accordingly discharged. I do not make any order as to costs.