Decided on September 09,1960

Sankar Prasad Sarkar Appellant
Panchu Gopal Sarkar Respondents


- (1.) This Rule involves only one question of law and that question is whether an application for pre-emption under Section 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.
(2.) 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.
(3.) 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.;

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