Mallick, J. - (1.) The question involved in this appeal is whether, in an application for pre-emption under Section 24 of the West Bengal Non-Agricultural Tenancy Act, 1940, an order for pre-emption can be made if the entire deposit contemplated in the section is not made along with the filing of the application in a case where notice under Section 23 has not been served.
(2.) Opposite party Sital Chandra Bose and the applicant Pasupati Chatterjee were owners of the lands referred to in the petition-Pasupati having 10 annas share and Sital 6 annas share. Sital entered into an agreement for sale of his share of the said land with the opposite party Debendra Nath Chaudhuri. The said Debendra Nath Chaudhuri was the benamdar of the opposite party, Prabartak Jute Mills Ltd. Sital having failed to complete the sale by executing the conveyance in favour of the purchaser, the Company instituted a suit for specific performance against Sital. In that suit a decree was passed and Sital was ordered to execute a conveyance in favour of the Company on receipt of the total consideration of Rs. 5,106. Against the said decree an appeal was taken to this Court by Sital. This appeal was allowed to be dismissed in consideration of a further sum of Rs. 6,000 being paid by the Company to Sital for value of Sital's share of structure standing on the land and for an assignment of all arrears of rent due by the tenants. In consequence, in the conveyance executed by Sital in favour of the Company, the consideration appears to be the sum of Rs. 5,106 plus the said sum of Rs. 6,000 making a total sum of Rs. 11,106. The Company appears not to have served a notice on the applicant Pasupati in terms of Section 23 of the West Bengal Non-Agricultural Tenancy Act. According to the Petitioner Pasupati, he came to know for the first time of the sale on receipt of a notice from one Nityananda Basack, the lawyer of the Company. Thereupon, he presented a petition for pre-emption out of which this appeal arises.
(3.) In the petition the Petitioner states that he is a co-sharer and is entitled to pre-empt the undivided 3/8th share of the land belonging to the opposite party Sital conveyed to the Company. He pleads that no notice as contemplated by Section 23 of the Act had been served. He craves leave to deposit the sum of Rs. 5,106 which is the consideration or value of the said undivided 3/8th share. Apparently this amount is taken from the agreement of sale referred to above and the decree of the trial court. The said amount of Rs. 5,106 appears to have been deposited by the Petitioner. It is clear from the petition that the Petitioner raises a dispute as to the quantum of consideration paid for the said sale. The Petitioner takes his stand on the fact that the consideration is the amount of Rs. 5,106 for which a decree was passed by the trial court and that the further sum of Rs. 6,000 paid for the purpose of the appeal being dismissed which has also been included in the consideration as stated in the conveyance is not the proper consideration.;