- (1.) This revisional application is directed against the order of Shri T. Bhattacharyya, Subordinate Judge, Third Court, Midnapore, allowing in appeal an application for pre-emption under Section 25F of the Bengal Tenancy Act. The facts of the case are briefly as follows:
(2.) There was an occupancy raiyati holding which is interest No. 319 of Gohaldanga Mouza with an area of 12 bighas. held by one Chandra Mohan Sen. By amicable partition among the heirs of Chandra Mohan 7 bighas fell to the share of Bir Singh and he sold this land to opposite party No. 1, Sudarshan Dey, the applicant for pre-emption, by a kobala, dated April 20, 1951. Mahendra Sen, who obtained 5 bighas of the land of the holding and who is now Petitioner No. 2, sold 1 bigha 9 outtakes of land out of his share of 5 bighas to Ganesh Chandra Mahato, who is now Petitioner No. 1, by a kobala, dated August 7, 1955, for the consideration of Rs. 300. It is in respect of this sale, dated August 7, 1955, that opposite party No. 1, Sudarshan Dey, filed the application for pre-emption on December 9, 1955. The present Petitioners, namely, the transferee and the transferor by the kobala, dated August 7, 1955, filed two separate objections and opposed the application for pre-emption. They, alleged that the kobala of August 7, 1955 was really a benami kobala and not a real transfer and that therefore no application for pre-emption was maintainable. They also took the objection that the interests of all occupancy raiyats in the Midnapore District had become vested in the State of West Bengal and that in the circumstances the application for pre-emption was no longer maintainable.
(3.) The learned Munsif, who dealt with the application in the first instance, decided both the issues in favour of the objectors. He held that it was really a benami transfer there being no payment of consideration and no delivery of possession and that, therefore, the application for pre-emption was not maintainable. He also held that since the interests of the occupancy raiyats in the Midnapore district had become vested in the State of West Bengal the application for pre-emption by one such raiyat was no longer maintainable. On these findings the learned Munsif dismissed the application.;