MADAN MOHAN GHOSH Vs. MADAN MOHAN GHOSH
LAWS(CAL)-1976-7-29
HIGH COURT OF CALCUTTA
Decided on July 07,1976

MADAN MOHAN GHOSH Appellant
VERSUS
MADAN MOHAN GHOSH Respondents


Referred Judgements :-

HIRU SEPAI VS. SULTAN SEPAI [REFERRED TO]


JUDGEMENT

S.K. Bhattacharyya, J. - (1.)This application by the pre -emptor under Article 227 of the Constitution of India is directed against the concurrent decisions of the Courts below dismissing the Petitioner's application for pre -emption under Sec. 8 pf the West Bengal Land Reforms Act (hereinafter referred to as 'the Act'). The facts leading up to the present application may briefly be stated. The Petitioner alleges that he was a co -sharer in respect of a holding recorded in khatian No. 291 of mouza Akna, P.S. Polba, dist. Hooghly, along with opposite parties Nos. 2 to 4 and had been in joint possession thereof when the said opposite parties transferred 73 of land of the aforesaid holding to opposite party No. 1 on March 24, 1965. No notice of the said transfer was served on the Petitioner. The Petitioner filed the instant application on April 12, 1968, after depositing the amount of consideration along with the compensation alleging that he came to know about the said transfer on April 1, 1968. The application was opposed by opposite party No. 1 inter alia on the ground that the application was barred by limitation and the Petitioner was no longer a co -sharer in the holding and as such the application was not maintainable.
(2.)The question of maintainability of the application was taken up for hearing by the learned Munsif as a preliminary point and he found against the Petitioner on, this point and accordingly, dismissed the application. On appeal, the learned Additional District Judge, First Court, Hooghly, agreed with the learned Munsif and dismissed the appeal. Both the Courts relied upon the Full Bench decision of this Court in the case of Madan Mohan Ghosh v/s. Sishubala Atta and Ors. : 76 C.W.N. 1058 (F.B.). Against the said decision of the learned Additional District Judge, First Court, Hooghly, the Petitioner moved this Court and obtained the instant Rule.
(3.)Mr. Biswas, learned Advocate appearing for the Petitioner in this application, has contended that the Courts below erred in applying the Full Bench decision in the instant case inasmuch as the said decision was given on an application filed under Sec. 26F of the Bengal Tenancy Act and not on an application filed under Sec. 8 of the West Bengal Land Reforms Act. Mr. Biswas's contention is that the concept of a holding in the West Bengal Land Reforms Act is entirely different from that of a holding under the Bengal Tenancy Act. Moreover, the decision was rendered in connection with an application for pre -emption under a provision of law that stood repealed by notification dated September 25, 1965, in view of the amendment of Sub -rule (3) of Rule 4 of the West Bengal Estates Acquisition Rules as amended on August 1, 1964. The Full Bench in the case of Madan Mohan Ghosh v/s. Sishubala Atta Supra (1070, 1075) held that after the enforcement of chap. VI of the West Bengal Estates Acquisition Act and vesting of interest of raiyats and under -raiyats on and from April 14, 1956, the co -sharer raiyats of a holding ceased to be co -sharers and each raiyat of the holding became a direct tenant under the State in respect of the land of that holding which he was entitled to retain under Sub -section (1) of Sec. 6. Consequently, the Full Bench proceeded to observe that as the co -sharer raiyats ceased to be co -sharers on and from the date of vesting, the question of exercise of the right of pre -emption under Sec. 26F could not arise as the condition precedent for the exercise of the right of pre -emption under Sec. 26F ceased to subsist.
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