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1938 DIGILAW 290 (CAL)

Monoranjan Chatterjee v. Pyari Mohan De

1938-11-22

body1938
JUDGMENT Sen, J. - This is a Rule against an order passed by the Munsif, 6th Court, Barisal, refusing the Petitioners' prayer to preempt one of the two holdings which had been transferred by their tenant. The application was rejected by the learned Munsif on the ground that the landlords were bound to pre-empt both the holdings sold and that they could not be permitted to pre-empt one only of the two holdings sold. In coming to this decision the learned Munsif has relied on two cases, namely, Behari Lal Roy v. Putin Behari Paul 88 C. W N. 654 (1934) and Surabala Basu v. Rukmini Kanta Barmon Roy 42 C.W.N. 288 (1937). In my opinion the learned Munsif has erred in coming to this conclusion and he has misconceived the purport of these two decisions. Sec. 26F of the Bengal Tenancy Act says that the immediate landlord of the holding or the transferred portion or share may, within two months of the service of the notice issued under sec 26C or 26E, apply to the Court that the holding or portion or share thereof shall be transferred to himself. Sec. 26C provides for the manner of transfer by an occupancy raiyat of his holding and it lays down that the transfer must be by a registered document, except in certain cases. It lays down further that the registering officer shall not accept for registration any such instrument of transfer unless the sale price, or where there is no sale price, the value of each holding, portion or share thereof is stated separately in the instrument and unless it is accompanied by a notice, process-fee, landlord's fee and costs of transmission. Reading these two sections together it seems to me that there is no prohibition under the Bengal Tenancy Act whereby a landlord is precluded from exercising his right of pre-emption with respect to one of two holdings which have been sold. The cases referred to by the learned Munsif are clearly distinguishable. In those cases a single holding was sold and the landlord wished to pre-empt only a portion of that holding. The learned Judges who decided the two cases referred to above were of opinion that this was not permissible under sec. 26F. The present case is quite different. The cases referred to by the learned Munsif are clearly distinguishable. In those cases a single holding was sold and the landlord wished to pre-empt only a portion of that holding. The learned Judges who decided the two cases referred to above were of opinion that this was not permissible under sec. 26F. The present case is quite different. Two separate holdings have been sold and I can see no reason for the view that the landlord cannot exercise his option in purchasing one of such holdings. The provision in sec. 26C for separate valuation of each holding sold confirms me in this view. This provision must have been enacted for the purpose of enabling the landlord to pre-empt one out of several holdings which have been sold by one transfer deed. 2. In these circumstances I set aside the order of the learned Munsif and allow the application of the Petitioners. The Rule is made absolute with costs throughout, hearing-fee in this Court being assessed at one gold mohur.