S.P. Mitra, J. - (1.) This Rule has been obtained against an order of the Subordinate Judge, Asansol made on the 17th January, 1968 in Miscellaneous Case No. 2 of 1967 arising out of Misc. Case No. 20 of 1966 in the court of the Munsif, Second Court, Asansol. By this order the petitioners claim for pre -emption has been refused. The property in dispute is a tank. It is Dag No. 40, P. S. Kansa, Mouza Aima Biswanathpur, District Burdwan. The petitioners, the opposite party No. 3 and one Nrishingha Thakur were co -sharers of this tank having Niskar right. The petitioners had 12 annas share in the tank, the opposite party No. 3 had 2 annas share and Nrishingha Thakur had the remaining 2 annas share. On the 14th April, 1954, the West Bengal Estates Acquisition Act, 1953, came into force. In accordance with the provisions of this Act the aforesaid co -sharers retained the tank. In the record of rights under the Estates Acquisition Act several Khanda -khatians were made. These Khanda -khatians show that each of the co -sharers above -named was to pay a specified portion of the total rent in respect of specified areas of the tank which they had retained. On the 7th July, 1965, the opposite party No. 3, Gopal Chandra Ghosh transferred out of his 2 annas share 5 piece share in the tank to the opposite parties Nos. 1 and 2. On the 28th February, 1966, the petitioners applied for pre -emption under Sec. 24(1) of the West Bengal Non -Agricultural Tenancy Act, 1949. The relevant provisions of this Sec. are that if a portion or share of land is transferred, the immediate landlord or one or more co -sharer tenants of such land may, within four months of the service of notice issued under Sec. 23, apply to the Court for such land or portion or share thereof to be transferred to himself or themselves, as the case may be.
(2.) In the instant case, the application under Sec. 24(1) was allowed by the Munsif but the Subordinate Judge has set aside the Munsif's order.
(3.) The Rule was originally issued and heard by a Judge sitting singly of this Court. Mr. Justice Chakravartti who heard the Rule was of the view that the case raised an important point of law, namely, whether a tenancy which had been shown as Prithak in the revisional settlement operations had actually effected a partition of the tenancy to such an extent that the original co -sharer would cease to be a co -sharer. Mr. Justice Chakravartti has referred this question of law to a Division Bench.;