Sahidullah Munshi, J. - (1.) This revisional application is directed against judgment and order dated 29th August, 2016 passed by the learned Additional District Judge, 14th Court, Alipore, South 24-Parganas, in Miscellaneous Appeal No.461 of 1987 reversing the order dated 8th August, 1987, passed by the learned Assistant District Judge, Barasat, North 24-Parganas in Misc. Case No.19 of 1986. In this revisional application the petitioner has made out a case that their predecessor-in-interest filed a Miscellaneous Case No.19 of 1986 before the learned Assistant District Judge at Barasat, North 24-Parganas under Section 24 of the West Bengal Non-agricultural Tenancy Act, 1949 seeking pre-emption on the ground of co-sharership and also on the ground of his being the adjacent owner of the land under transfer. Opposite party entered appearance in the said miscellaneous case and contested the same by filing written statement. Parties adduced evidence and, ultimately, pre-emption proceeding was decided by the learned Assistant District Judge by his judgment and order dated 8th August, 1987, thereby allowed the application under Section 24 of the West Bengal Non-agricultural Tenancy Act, 1949.
(2.) It is also the case made out by the petitioner that immediately after the said Miscellaneous Case was allowed by the learned Assistant District Judge, the pre-emptor/petitioner took over possession of the suit property and that he is in possession thereof till date. Opposite party, being aggrieved by the aforesaid order dated 8th August, 1987, passed by the learned Assistant District Judge at Barasat, North 24-Parganas, preferred a Miscellaneous Appeal No.461 of 1987 which was taken up for consideration by the learned Additional District Judge at Alipore, South 24-Parganas. By the judgment and order impugned, the learned Additional District Judge, Alipre, allowed the said Misc. Appeal No.461 of 1987 and set aside the judgment and order dated 8th August, 1987 passed by the learned Assistant District Judge at Barasat, North 24-Parganas, in Misc. Case No.19 of 1986.
(3.) In the pre-emption application the petitioners claimed that they are co-sharers in respect of the suit land and the vendor of the opposite party, without service of notice, transferred the suit land to the opposite party and as co-sharers, the petitioners are entitled to pre-empt the same. Opposite party filed written statement and made out a definite case that application under Section 24 of the West Bengal Non-agricultural Tenancy Act, 1949 was not maintainable in view of the West Bengal Land Reforms (Amendment) Act, 1981 and further that the petitioners are not co-sharers and the suit property is also not a non-agricultural land. It is also the case of the opposite party that he developed the land in dispute after an expenditure of a considerable amount of money and, therefore, in the event pre-emption is allowed by the Court, he is entitled to realise that amount. The learned 1st Court, while considering the application under Section 24 of the West Bengal Non-agricultural Tenancy Act, 1949, held that the said application is maintainable in view of the ratio decided in the decision in the case of Ram Kissin Shaw Vs. Lachmonia Debi & Ors., 0 91 CalWN 658. While applying the ratio decided in the case of Ram Kissin Shaw , the Learned first Court held that without a notification under Section 4, sub-section (1) of the West Bengal Estates Acquisition Act, 1953, it cannot be held that all the non-agricultural tenancies and under-tenancies governed by the West Bengal Nonagricultural Tenancy Act, stood repealed on and from 7th August, 1969. Applying such ratio the learned 1st Court held that in absence of such notification application for pre-emption was maintainable under Section 24 of the West Bengal Non-agricultural Tenancy Act, 1949. Such view of the 1st Court has been contradicted by the judgment impugned in this revisional application. The Learned Appellate Court below held that application under Section 24 of the West Bengal Non-agricultural Tenancy Act, 1949 was not maintainable at all owing to the fact that the interest of non-agricultural tenants has vested to the State in view of Section 3A of West Bengal Land Reforms Act and co-sharer tenants can no longer be considered co-sharers. The learned Appellate Court below made such finding on the basis of a decision in the case of Ramkrishan Shaw Vs. Smt. Lachmania Devi & Ors., 1994 1 CalLJ 394.;