P.N. Mookerjee, J.@mdashThis Rule was obtained by the Petitioners against an order of the learned Judge of the Court of Appeal below, affirming an order of the learned trial Judge, allowing the opposite party No. 1''s claim for pre-emption. Shortly stated, the relevant facts stand as follows:
2. One Dasharathi Makal, since deceased, was the recorded tenant of .046 acre of land in C.S. plot No. 5538, khatian No. 2471, mouza Srirampur, district Hooghly. The said Dasharathi died in or about the year 1946 leaving his widow, Saralabala, who is opposite party No. 2 in the present Rule, as his sole heiress and legal representative. The said opposite party No. 2 sold to the present opposite party No. 1 .016 acre of land out of the aforesaid .046 acre by a kobala dated April 7, 1955. Thereafter there was a partition between opposite parties Nos. 1 and 2 in respect of the above land. Opposite party No. 2 subsequently transferred the land or portion of the above .046 acre, which came to her on such petition to the present Petitioners by a kobala dated August 1, 1959. For pre-empting this sale opposite party No. 1 filed the present application.
3. The above claim was resisted on the ground, inter alia, that opposite party No. 1, who was the claimant for such pre-emption, was not entitled to the same under the law, namely, Section 24 of the West Bengal Non-Agricultural Tenancy Act, as the property sold was the separate property of opposite party No. 2. There were also other objections taken, viz., that the pre-emption money, deposited for the purpose by the said opposite party No. 1, was insufficient and on the basis of the same no pre-emption could be allowed and, further, that the opposite party No. 2 had a right of residence in the disputed property under or in view of Ex. A, and also a claim for her maintenance under or in view of Ex. B.
4. The learned Munsif overruled the main objection to the opposite party''s claim for pre-emption and after holding, inter alia, that Ex. B was not a bona fide document and also that the question of the opposite party No. 2''s right under Ex. A did not arise for consideration in the instant proceeding, allowed the opposite party No. 1''s claim for pre-emption.
5. The Petitioners being aggrieved appealed to the learned District Judge and, on the dismissal of the said appeal, they have come up to this Court and obtained the present Rule.
6. The principal question, which arises for consideration, is whether the opposite party No. 1 was entitled to pre-empt in view of the facts and circumstances of this case u/s 24 of the West Bengal Non-Agricultural Tenancy Act.
7. In support of this Rule and in resisting the above claim for pre-emption Mr. Sen, appearing for the Petitioners, argued that, by virtue of the. partition referred to above, the land of the original non-agricultural tenancy became divided and opposite party No. 1 ceased to be a co-tenant of opposite party No. 2 in the matter of the disputed land and, accordingly, could not claim any pre-emption under the above statutory provision.
8. We are unable to accept this contention. The Statute clearly by its language (vide Section 24 of the West Bengal Non-Agricultural Tenancy Act) indicates that the land, of which the party claimed pre-emption has to be a co-tenant, is the land of the original tenancy so long as the said tenancy remains in existence. This is clear from the use of the expression ''such land'' in two places in the section, which expression read in its chain and proper context has obvious reference to the land mentioned in the first part, of the section, that is, the entire land of the non-agricultural tenancy in question. If there is a partition or division of the land, which has the effect of splitting up the said tenancy, that is, where it is done with the consent of the landlord, the position will undoubtedly be different because there will then be a sub-division, of the tenancy itself and new or different tenancies will spring up or come into existence. If, on the other hand, there is no consent of the landlord and the partition is as between the tenants only without such consent, there is no division or splitting up of the tenancy in question, and however separate the lands might have become, so far as the tenants are concerned, they still continue to form or constitute part or portion of the same or the original tenancy. In this view we would hold that opposite party No. 1 who Obviously continued, at the relevant date, to be a co-tenant in respect of the land of the original non-agricultural tenancy of which the portion obtained by opposite party No. 1 on partition, as aforesaid, was sold to the Petitioners, was a co-tenant, entitled to pre-empt the sale u/s 24 of the West Bengal Non-Agricultural Tenancy Act. The Courts below were, therefore, perfectly right in holding in favour of opposite party No. 1 in regard to her claim for pre-emption.
9. A similar view of the above section was taken in the unreported decision of this Court in the case of Motilal Ghosh v. Bimal Chandra Saha and Ors. Civil Rev. Case No. 41 of 1961, decided by Bachawat & A.C. Sen JJ. on April 11, 1963.
10. We, accordingly, overrule the above contention of Mr. Sen.
11. On the question of the opposite party No. 2''s right of residence the matter does not call for decision in the instant case, as opposite party No. 1 has agreed before us, and that was also the position taken up by her in the lower Appellate Court, that she will be bound by the said right of residence.
12. On the question of the opposite party No. 2''s claim for maintenance under Ex. A, in view of the finding of the learned trial Judge, which was not reversed by the Court of Appeal below and against which no grievance was made by opposite party No. 2, that the said deed was not a bona fide document but only a paper or sham transaction, no question of any right thereunder arises and, accordingly, such right must be held to be unavailable or non-existent.
13. Subject to the above observations this Rule fails and it is discharged.
14. There will be no order as to costs.
A.K. Dutt, J.
15. I agree.
