Nitai Chandra Das v. Sisir Kumar Das — 1963 DIGILAW 62 (CAL)

JUDGMENT 1. These two revisional applications are directed against an appellate order affirming an order of a munsif allowing two applications for pre-emption filed by opposite party no. 1 under section 26f, Bengal tenancy Act. 2. Opposite Party No. 1 and opposite parties- Nos. 2 to 4 were co-sharer occupancy raiyats of two holdings, one with a jama of Rs. 36-10-11 in Mouza Nischintapur and the other with a jama of Rs. 73 - in Mouza samruk. Opposite party No. 4 filed a suit for partition against opposite parties Nos. 1 to 3 in 1954. A preliminary decree was passed on December 10, 1955, and a final decree was passed on April 2, 1958. On may 16, 1956, opposite party No. 4 sold a demarcated 1. 43 acre of land out of C. S. plot 387 of the holding of Rs. 36-10-11 and a demarcated. 60 acre of land out of the holding of rs. 73/- to opposite parties Nos. 5 to 7. Opposite parties Nos. 5 to 7 in their turn sold the lands to the petitioner on December 12, 1958. Opposite party No. 1 who was a minor at the time of the sale dated May 16, 1956, filed two separate applications for pre-emption of the two transfers on December 15, 1958, and December 18, 1958, respectively. The learned Munsif heard these two applications together and allowed the prayer for pre-emption in respect of both the applications. The petitioner filed two appeals and the appellate Court has affirmed the decision of the learned Munsif. Mr. Roy Choudhury, who appears for the petitioner, argues that the applications should have been dismissed as barred by limitation. It appears that no notice of the transfers was served on opposite party No. 1, He filed the applications within 3 years from the date of the transfers. Mr. Roy Choudhury submits that notice of the transfer was served on opposite party No. 2 who was the eldest brother of opposite party No. 1 and service on opposite party No. 2 should have been held to be good service on opposite party No. 1. Mr. Roy Choudhury in his frankness, however, admits that the courts below have found that opposite party No. 2 was not the karta of a joint family of opposite parties Nos. Mr. Roy Choudhury in his frankness, however, admits that the courts below have found that opposite party No. 2 was not the karta of a joint family of opposite parties Nos. 1 to 3 and as such service on opposite party No. 2 could not be said to have been good service on opposite party No. 1. This is a finding of fact and I cannot go behind this in this revisional application. The point about limitation, therefore, fails. 3. Mr. Roy Choudhury next argues that opposite party No. 4 was in exclusive possession of a demarcated area of the two C. S. plots and sold the same to opposite parties Nos. 5 to 7. No undivided share was sold and so section 26f Bengal Tenancy act is not attracted. This argument cannot be sustained. Section 26f refers to 'one or more co-sharer tenants of the holding a portion or share of which is transferred. ' The right to pre-empt is given to one or more co-sharer tenants of the holding Here in this case when the transfers took place on May 16, 1956, there was as yet no partition by metes and bounds amongst opposite parties Nos. 1 to 4 and as such all of them were co-sharer tenants of both the holdings. No amicable arrangement for separate or exclusive possession of some lands of the holding by each of the co-sharers takes away the character of all of them as co-sharer tenants' of the entire holding. Furthermore the right to pre-empt arises when not only a share but also 'a portion' of the holding is transferred. Share may refer to an undivided share but the word "portion" indicates that even if the particular portion is in the exclusive possession of one of the co-sharers, the other co-sharers are given the right to pre-empt. I hold therefore, that even though by virtue of some mutual arrangement opposite party No. 4 was in exclusive possession of a demarcated share of the two C. S. plots and sold the same to opposite parties Nos. 5 to 7, opposite party No. 1 as one of the other co-sharer tenants has the right to preempt under section 26f, Bengal tenancy Act. This argument of Mr. Roy Choudhury also fails. 4. Mr. 5 to 7, opposite party No. 1 as one of the other co-sharer tenants has the right to preempt under section 26f, Bengal tenancy Act. This argument of Mr. Roy Choudhury also fails. 4. Mr. Roy Choudhury next argues that under Chapter VI of the estates Acquisition Act, 1953, the interest of all raiyats have vested in the State of West Bengal with effect from April 14, 1956. The transfer took place on May 16, 1956. He submits that section 26f Bengal tenancy Act will not be applicable to transfers after the date of vesting. Under section 52 of the Estates Acquisition Act, 1953, with the vesting of the occupancy holdings in the State the provisions of Chapters II, III, V and VII shall apply mutatis mutandis to raiyats as if such raiyats were intermediaries and the lands held by them were estates. An occupancy raiyat will thus be entitled to retain his bastu and 25 acres of agricultural lands by virtue of the provisions of section 6 (1) (a) and (d) of the West Bengal Estates Acquisition Act, 1953. Here in this case there is no evidence to show that opposite party No. 4 had more than 25 acres of land in his possession. Under clause 7 (5) of schedule B to the West Bengal Estates Acquisition Rules, 1954 where the area of lands held in khas by a raiyat does not exceed the limits laid down under clause (d) of sub-section (1) of section 6 it shall be presumed that such raiyat has retained all such lands. It should therefore be presumed in this case that opposite party No. 4 retained the disputed lands in khas after April 14, 1956. Then by virtue of section 52 read with section 6 (2) of the Estates Acquisition Act, 1953, opposite party no. 4 is to be deemed to have held these lands directly under the State from the date of vesting as a "tenant subject to such terms and conditions as may be prescribed" and subject to payment of such rent as may be determined under the provisions of the act. "prescribed" means prescribed by Rules made under the Act. The relevant rule is Rule 4 of the Rules framed under the Act. "prescribed" means prescribed by Rules made under the Act. The relevant rule is Rule 4 of the Rules framed under the Act. Rule 4 as it stood on the date of the transfers read thus: "every intermediary who retains possession of any land by virtue of the provisions of sub-section (1) of section 6 shall subject to the provisions of the Act be deemed to hold such land from the date of vesting (a) if it is agricultural land, on the same terms and conditions as an occupancy raiyat under the Bengal tenancy Act, 1885. " Mr. Roy Choudhury in his visual fairness refers to the recent amendment of the rules by which a new Rule 4 has been substituted for the original Rule 4. The new Rule states: "any land retained by an intermediary under the provisions of sub-section (1) of section 6 shall subject to the provisions of the Act be held by him from the date of vesting on the terms and conditions specified below: (3) If the land held by the intermediary be agricultural land then- (i) he shall hold it mutatis mutandis, on the terms and conditions mentioned in sections 23, 23a, clause (a) of section 25, sections 26 to 26g, 52 to 55, subsections (1) and (2) of section 56, sections 65, 67, sub-section (1) of section 68, sections 73, 86a, sub-sections (1), (2) and (3) of section 87, to so much of section 159 as does not relate to protected interests, sections 161 to 163, 166, sub-sections (1), (2)and (3) of section 167. section 168, sections 169 to 171 and sections 173 to 177 of the Bengal tenancy Act, 1885. " This amendment came into force with effect from September 7, 1962. The amended Rule 4 clearly states that even after the date of vesting section 26f, Bengal Tenancy Act will be attracted to transfers by a co-sharer tenant. Mr. Roy Choudhury argues that this amendment has no retrospective effect because the Rules are framed by the State Government under a delegated authority and no delegated authority has the power to frame Rules with retrospective effect. Rule 4 states that the lands shall be held by the tenant on the specified terms and conditions from the date of vesting. What Rule 4 prescribes is that the tenant will have the specified rights from the date of vesting. Rule 4 states that the lands shall be held by the tenant on the specified terms and conditions from the date of vesting. What Rule 4 prescribes is that the tenant will have the specified rights from the date of vesting. This does not arise out of some provision in the Rule by which the Rule is made retrospective from the dale of vesting. Mr. Roy Choudhury further argues that the rights of the parties in this proceeding should be determined on the basis of Rule 4 as it stood on the date of the transfer. I think that even then section 48f. Bengal Tenancy Act is attracted. Opposite party No. 4 was then holding the lands on the same terms and conditions as an occupancy raiyat under the Bengal Tenancy act, 1885. What do the words same terms and conditions" mean? Mr. Roy Choudhury argues that these words do not mean all the incidents attaching to an occupancy raiyat but some of the incidents viz., transferability, heritability and so on. The words used were "same terms and conditions". If the intention was to limit the terms and conditions to some of the incidents of an occupancy raiyat, the rules would have made that clear. The fact that the rule was framed in general terms saying that the lands should be held on the same terms and conditions as an occupancy raiyat, indicates that all the rights attaching to an occupancy holding including section 48f, bengal Tenancy Act must continue to be attached to the new tenancy. The right of pre-emption was given to a co-sharer occupancy raiyat with a view to prevent outsiders from coming into the holding if the other co-sharers wanted to retain the same for themselves. This necessity has not ceased to exist. Even under the present conditions there is the same necessity for preventing outsiders from coming into a particular tenancy when the other co-sharers want to retain it. Thus in any view of the matter i. e., either under the old Rule 4 or under the amended Rule 4, section 26f Bengal Tenancy Act is attracted. I cannot therefore agree with Mr. Roy Chowdhurys argument that section 26f of the Bengal tenancy Act is no longer applicable to the case of a tenancy held directly under the State after the vesting under Chapter VI of the Estates Acquisition Act, 1953. Opposite party no. I cannot therefore agree with Mr. Roy Chowdhurys argument that section 26f of the Bengal tenancy Act is no longer applicable to the case of a tenancy held directly under the State after the vesting under Chapter VI of the Estates Acquisition Act, 1953. Opposite party no. 1 is therefore entitled to preempt even after the date of vesting i find support for my views in the decision in the case of (1) Ganesh chandra Mahato and others v. Sudarsan Dey, reported in 62 C. W. N. 360. 5. Mr. Roy Choudhury lastly argues that after the vesting there is no more any co-sharer tenant and every individual is holding land directly under the State and in that view of the matter section 26f, Bengal Tenancy Act is not attracted at all. If this view is good law then there would be no more any necessity for continuance of section 26f but it appears that the amended Rule 4 makes section 26f applicable to tenancies under the State even after vesting. That indicates that even now there will be co-sharer tenants of a holding. Mr. Roy Choudhury refers to clause 7 (4) of Schedule B to the Rules under the Estates Acquisition Act where it is said that the revenue Officer shall wherever necessary partition the lands for the purpose of making allotment under sub-section (5) of section 6 of the act and demarcate the lands so partitioned by assigning such separate plot numbers as may be needed for the purpose. This partition is to be made for the purpose of sub-section (5) of section 6 only, which says that an intermediary shall have to exercise his choice for retaining particular lands in his khas possession and if no choice is exercised during the prescribed period the Revenue officer shall allow him to retain so much of the lands as do not exceed the limits and in such cases the Revenue Officer shall partition the lands. This has no reference to the lands of an occupancy holding which were being held by co-sharer tenants before the vesting and which were continued to be held as a tenancy under the State after the vesting. Even after the vesting the jama remains joint but payable to the State. This has no reference to the lands of an occupancy holding which were being held by co-sharer tenants before the vesting and which were continued to be held as a tenancy under the State after the vesting. Even after the vesting the jama remains joint but payable to the State. It cannot therefore be said that after the date of vesting there will be no more joint tenancies or co-sharer tenants and as such section 26f, Banal Tenancy Act will be wholly inapplicable. The argument of Mr. Roy Choudhury on this point also fails. The Rules are, in the circumstances, discharged. No order is made as to costs.