ARDHENDU BHUSAN HALDAR (DEAD) BY L.RS. ETC. ETC.

SMT. GANGAMONI MONDAL ETC. ETC.

SEPTEMBER 18. 1990

[S. RANGANATHAN AND K.N. SAIKJA. JJ.]

Bengal Tenancy Act, 1985: Section 26F-Whether right of preemption conferred on co-sharers available to holders after interest has vested in the Government under the Bengal Estates Acquisition Act, 1953.

West Bengal Estates Acquisition Act, 1953-Whether right of preemption available to erstwhile co-sharers classes.

Smt. Gangamoni Monda!, the respondent in one of the appeals, purchased on 29.1.1963 the suit property. About three years and five months after her purchase, the predecessor-in-interest of the appellants made an application for pre-emption under section 26-F of the Bengal Tenancy Act, 1885on the ground that he was a co-sharer of the holding which comprised the land purchased by the respondent. The holding was previously a Raiyati Mokarari interest which had vested in the State under the provisions of the West Bengal Estates Acquisition Act. ·

1953. The defence of the respondent was that, though the predecessorin-interest of the appellant and her vendor were the joint holders of the property in question, the right of pre-emption available to the co-sharer had ceased with the coming into force of the Estates Acquisition Act of 1953.

The pre-emption application was allowed by the learned Munsif and his order was confirmed by the learned Additional District Judge.

In revision, the Full Bench of the High Court negatived the contention of the applicant and dismissed the pre-emption application.

Dismissing the appeals and SLPs, this Court,

HELD: (1) The Full Bench has rightly come to the conclusion that the right of pre-emption could not survive under the West Bengal Estates Acquisition Act, 1953. [348B I

(2) Section 26-F of the Tenancy Act, 1885 conferred on a co• sharer tenant of an occupancy holding, a right to compel another co- H

sharer tenant to sell his share in the holding to him instead of to a A stranger. The term "co-sharer" envisages that the holding must be under the ownership of more than one person. The holding must be an

occupancy holding: that is, it must be the holding of raiyats having occupancy rights. So long as a division of the holding does not take place in accordance with section 88 of the Tenancy Act, the holding B remains a joint holding and each co-sharer will be entitled to preemption in case of transfer of a share or portion of the holding by a " co-sharer to a stranger. [340E-F] .

(3) By virtue of the notifications issued by the State Government under section 4 of the 1953 Act from time to time theinterests of raiyats c and under raiyats vested in the State with effect from April 14, 1956. [341C]

( 4) The effect of 1953 Act was to vest the rights of bttermediaries (an expression subsequently extended to cover raiyats and under rai_vats) in the State Government. Each raiyat became a direct tenant under the State and t!ie land retained by a raiyat of a holding became D the subject matter of a separate tenancy. It was, therefore, no longer possible to call them co-sharers entitled to pre-emption case of a transfer to a stranger. [341D; 345E]

(5) By a notification dated 28.5.1954, the Government of West Be11gal framed rules called the West Bengal Estates Acquisition Rules, E

1954. The original rule 4 merely provided that in the case of agricultural land retained by the intermediary, he shall hold it on the same terms and conditions as an occupancy raiyat under the Tenancy Act, leaving it undefined as to whether these terms and conditions would also ipclude the right of pre-emption available under the Tenancy Act. The amendment of 1962 specifically included the right of pre-emption F available under section 26-F but the reference to section 26-F was omitted by the amendment of 1964. This definition, however, did not mean that the right of pre-emption was taken away. [343F; 344E-F; 347F)

(6) There is no statutory provision that brings non-agricultural (enants within the scope of the vesting provisions. The High Court was G right in making the distinction and upholding the right of pre-emption in the case of non-agricultural tenancies. [349A-B)

Shibasankar v. Prabartak Sanghs, [1967) 2 S.C.R. 558.

Sastidas Mullick v. J. L. R. 0. Parrachpore Circle and Ors., [1977] ·

' 1-1 I C.L.J. 695, referred to. ii ... _ ..... _

CIVIL APPELLATE JURJSDJCTION: Civil Appeal No. 626 of 1975 e1c. etc.

From the Judgment and Order dated 28.7.1972 of the Cakutta High Court in Civil Rule No. 20~9 of 1967,

P.K. Mukherjee. D.N. Mukherjee. N.R. Choudhary. Ranjan B Mukherjee. Somnath Mukherjee, for the Appellants.

Sukumar Ghosh. D.P. Mukherjee and G.S. Chatterjee. for the Respondents. ·

The Judgment of the Court was delivered by

RANGANATHAN, J. All these cases involve a common point whi9h has been decided by a Full Bench of the Calcutta High Court reported as Madan Mohan Ghosh v. Shishu Bala Atta, AIR 1972 Cal. 502, Civil Appeal No. 626/75 is a direct appeal from the judgment of D the Full Bench in one of the batch of cases dealt with therein. In the other cases, the High Court has decided the matter by following the Full Bench decision aqd that is the supject matter of appeal before this Court. Basically, the question is wnether the right of pre-emption conferred on co-sharers uncter the Bengal T1mancy Ai; t, 1885 (hereinafter referred to as 'the Tenancy Act'), is available to the holders aft!" their interests in the holding have vested in th" Government \lnde.r the i:;; West Bengal Estates Acquisition Act, 1953 (hereinafter referred (o as 'the 1953 Act'), This question has been answered by the Full Bench (Coram: A.K. Mukherjea, Sabyasachi Mu!<harji and M.M. Dutt, JJ.) in the negative and it is the correctness of tqis conclusion that is assailed in these proceedings.

To provide a factual background it may be sufficient to set out F

the brief facts in C.A. No, 626/75. Th" respondent, Smt. Gangamoni Mondal, p11rchased, on %9. 1.1963, the suit property being land measuring about 15 aqes, :!he e~\:aVa!ed a pcof!ion of )he land, filled up other portions of it, constructeq a small stru<; ture t!>ere(>n anf] starteg living t[lere from 1964. About three years and five months after her G purchase, Ardheqctu Bhusan Halde, r, the predecessor-in-interest .of the appellant" made an application for pre-emption under section 26+ of the Tenancy Act. His case was that he was a co-sharer of the holding which comprised the land purchased by the respondent. The holding was previously a Raiyati Mokarari interest and it had vested in the State under (he provisions of the 1953 i\<; t. The case of the respon- H

dent was that. though the predecessor-in-interest of the appellant and her vendor were the joint holders of the property in question. the right of pre-emption available to the co-sharer had ceased with the coming into force of the 1953 Act. The pre-emption application was allowed by the learned Munsif and his order was confirmed by the learned Additional District Judge. The respondent moved the High Court in revision. The matter came up for hearing before the two learned Judges of the Calcutta High Court who referred the matter to the Full Bench. The question. as already stated. was answered by the Full Bench in the negative with the result that the application for preemption stood dismissed. Hence the appeal before us.

The other appeals before us also involve the same point but there are sonie difference. We shall refer to these aspects later. to the extent necessary.

The question raised lies within a very narrow compass. The relevant statutory provisions may first be set out. As already D mentioned, the Tenancy Act provides, in section 26-F, that, except in the case of a transfer to a co-sharer in the tenancy whose existing interest has accrued otherwise than by purchase, one or more cosharer tenants of the holding. a portion or share of which is transferred, may apply to the Court for the said portion or share to be transferred to himself of themselves. In other words, the section conferred, on E a co-sharer tenant of an occupancy holding. a right to compel another. co-sharer tenant to sell his share in the holding to him instead of to a stranger. The term "co-sharer" envisages that the holding must be under the ownership of more than one person. The holding must be an occupancy holding: that is: it must be the holding of raiyats having occupancy rights. So long as a division of the holding does not take p place ih accordance with section 88 of the Tenancy Act. the holding remains a joint holding and each co-sharer will be entitled to pre-empt in case of transfer of a share or portion of the holding by a co-sharer to a stranger.

The 1953 Act came into force on' February 12, 1954. Sub section (I) of section 4 of the Act provides that the State Government may from time to time by notification declare that with effect from the date mentioned in the notification, all estates and the rights of every intermediary in each such estate situate in any district or part of a district specified in the notification shall vest in the State free from all incumbrances. Pursuant to section 4(1). a notification was published, which prescribed the date of vesting as 15th April. 1955. The term

--

- -

"intermediary" was defined in the Act to mean "a proprietor. tenureholder, under tenure-holder or any other intermediary above a raiyqt or a non-agricultural tenant". Thus a raiyat was µot an intermediary.

However, Chapter VI of the Act contains provisions for acquisition 9f interests of raiyats and under-raiyats. Under section.49, the provisio!ls of Chapter VI were to come into force on such date and in.:; uch district or part of a district as the State Government may, by notification in the Official gazette, appoint. The notification under S'ection 49 was published on 9th April, 1956, by which Chapter VI was prought into

fore~ in all the districts of West Bengal with effect from April 10, 1956, The effect of such a notification was that the provisions of the earlier Chapters of the Act became operative mutatis mutandis "to rqiya(s an<l under raiyats as if such raiyats and under raiyats were intermediaries and the land held by them were estates and a person holding under a raiyat or an under raiyat were a raiyat for the purpose of clauses ( c) and ( d) of section 5." Notifications were issued under section 4 by the State Government as a result of which the interests of raiyats and under raiyats vested in the State with effect from April 14, 1956.

As already mentioned, the effect of 1953 Act was to vest the rights of intermediaries (an expression subsequently extended to cover raiyats and under raiyats) in the State Government. However, section 6 confers certain rights on the intermediaries to retain certain lands.

The relevant portions of section 6 can be extracted for purpose of

convenient reference. ' E

"6. Right of intermediary to retain certain lands, (1) Notwithstanding anything contained in sections 4and 5, an intermediary shall, except in the cases mentioned in the proviso to sub-section (2) but subject' to the other. provisions of that sub-section. be entitled to retain with effect F from the date of vesting-

(a) land comprised in homesteads;

(b) land comprised in or appertaining to buildings and structures, owned by the intermediary or by any person.

G not being a tenant, holding under him by leave or licence,

xxx xxx xxx

(c) non-agricultural land in his khas possession, including land held under him by any person not being a tenant, by H

leave or licence, not exceeding fifteen acres in area, and excluding any land retained under clause (a);

Provided that the total area of land retained by an intermediary under clauses (a) and ( c) shall not exceed twenty acres. as may be chosen by him;

Provided further that if the land retained by an intermediary under clause (c) or any part thereof is not utilised for a period of five consecutive years from the date of vesting. for a gainful or productive purpose. the land or the part thereof may be resumed by the State Government subject to payment of compensation determined in accordance with the principles laid down in section 23 and 24 of the Land Acquisition Act. 1894 (Act l of 1894);

(d) agricultural land in his khas possession not exceeding twenty five acres in area. as may be chosen by him;

Provided that in such portions of the district of Darjeeling as may he declared by notification by the State Government to be hilly portions. an intermediary shall be entitled to retain all agricultural land in his khas possession. or any part thereof as may be chosen by him."

In other words, broadly speaking. the intermediary was allowed to retain agricultural land upto the extent of twenty five acres and nonagricultural land to the extent of fifteen acres. leaving out the special provisions in respect of homesteads. lands on which buildings are put up and lands in the hilly areas of Darjeeling. Section 52 while applying F these provisions to raiyats and under raiyats, states;

"Provided that where raiyat or an under raiyat retains. under section 6 read with this section. any land comprised in a holding, then notwithstanding anything to the contrary contained in sub section (2) of section 6. he shall pay.-

(a) in cases where he was paying rent for the land comprised in the holding and held by him immediately before the date of vesting (hereafter in this proviso referred to as the holding lands). -

(i) if he retains all the holding lands, the same rent as he -·

A.B. HALDAR v. GANGAMON! MONDAL [RANGANATHAN, J.l 533

was paying therefor immediately before the date of vest- A ing, and

(ii) if the land retained by him forms part of the holding lands, such rent as bears the same proportiori to the rent which he was paying for the holding lands immediately before the date of vesting as the area of the land retained B by him bears to the area of all the holding lands;

(b) in cases where he was liable to pay rent but was not paying any rent for the holding lands immediately before the date of vesting on the ground that the rent payable by him therefor was not assessed, such rent as may be assessed, mutatis mutandis, in accordance with the provisions of C section 42;

(c) in cases where he ws liable to pay rent wholly in kind or partly in kind and partly in cash, then notwithstanding anything contained in clause ( c) of section 5, such rent as D may be assessed in accordance with the provisions of section 40. and

(d) in eases where he was liable immediately before the date of vesting to pay for the holding lands a variable cash rent periodically assessed, such rent as may b.e assessed, E mutatis mutandis in accordance with the provisions of section 42."

By a notification dated 28.5.1984, the Government of West Bengal framed rules called the West Bengal Estates Acquisition Rules, 1954 (hereinafter referred to as 'the rules'). Rule 4 originally provided f that:

"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- G

(a) !fit is agricultural land, on the same terms and conditions as an occupancy raiyat under the Bengal Tenancy Act, 1885;

(b) If it is non-agricultural land on the same terms and H

conditions as a tenaqt µnder the West Bengal Non-agricultural Tenancy Act, 1949, holding non-agricultural land for not less th:m 12 years withpu( any lease in writi11g."

The following ru!e 4 was substitutecJ for tile above rule by a notification dated 7th September, 1962:

"4. Any land retained by an intermediary under the provisions of sub section (1) of secton 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:

xxx xxx

(3) if the Janel held by the intermediary be agricultural land, then- ·

(1) he s!Jall hold it, mutatis mutandis, on the terms and D conditions mentioned in sections 23, 23A, clause (a) of section 25, sections 26 to 26G ...... "

The rule was again amended by.a notification dated August l. 1964 by which, for the words and figµres ''Sections 26 to 26G, 52 to 55", the words "sections 26, 26B, 26C, 26G, sections 52 to 55" were substi- E luted. In other words, the original rule 4 merely provided that in the case of agricultural land retained by the intermediary, he shall hold it on the same terms and conditions as an occupancy raiyat under the Tenancy Act leaving it undefined as to whether these terms and conditions would also include the right of pre-emption available under the Act. The amendment of 1962 specifically included the right of pref emption available under section 26-F but the reference to section 26-F was omitted by the amendment of 1964.

The provisions of these various enactments and the availability of the right of pre-emption to the former joint tenants of the holding came up for consideration before a number of Benches of the Calcutta G High Court. It is not necessary to refer to the details of these decisions inasmuch as the matter nas been considered at length by the Full Bench. The arguments addressed in support of the survival of the right of pre-emption despite these legislative changes were broadly these:

(i) The 1953 Act, after Chapter VI came into force only vested the holding of the raiyats and under raiyat in the State. The word

'intermediary' in S. 6 includes the plural-'intermediaries'. A Hence, the previous co-sharers continue to be co-sharers; only instead of being tenants undet an intermediary, they become tehahts tinder the Staie. the vesiing Is of the holding as a whole; its iniegrity is not Impaired.

(ii) the Act, the rules and the forms prescribed thereunder provide for ihe partition, demarcation; separate determination of the rents fot the lands so partitioned and demarcated and conse' quent modification of the record of rights; until all this is done,

the holding remains single and the erstwhile co'sharers continue to be such. c

(iii) Rule 4(3), as it originally stood, preserved the rights of tenants to co-sharers. The 1962 amendment made thi~ clear. The 1964 deletion of the reference to S. 26-F was not with a view to take away the right of pre-emption under S. 26-F. It was only consequential to the enactment of the 1955 Act, S. 8 of which O provided for a pre-emption right corresponding to S. 26-F of the Tenancy Act.

The Full Bench, however, repelled the contentions arid held that the right of pre-emption did not survive. Its reasons may be summarised thus: E

(I) By virtue of section 52, read with section 6, each raiyat. becomes a direct tenant under the State with effect from the date of vesting in respect of the land which he is entitled to retain. The proviso to the section provides for the apportionment of the rent among the various holders making it clear that the land retained by a raiyat of a f holding becomes the subject matter of a separate tenancy. It was, therefore, no longer possible to call them. to-sharers. Each became entitled to a direct tenancy in respect of a share of the previous holding and, in regard to his interest, the previous holders had no manner of right or title. One raiyat could not claim to have any interest in the land comprising the holding which the others are entitled to retain or G have retained. Before vesting, each of the raiyats of a holding had an interest or share in every part of the. land comprised in the holding and each was a co-sharer of the other, but this is not the position after the vesting when each of the raiyats of the holding becomes a direct tenant under the State in respect of the land of the holding which he is entitled to retain under the provisions of sub section (I) of section 6.

(2) The expression "an intermediary" in sub section (I), (2) and

(5) of section 6 cannot be read as including the plural. If the word "intermediaries" was substituted in the place of -"an intermediary" in sub, section (I) of section 6, the result will be that all the intermediaries would be jointly entitled to retain only 25 acres of agricultural land in his khas possession whereas clause (d) envisages that each intermediary is entitled to retain 25 acres of agricultural land in his khas possession and to exercise his choice of retention of land within such time and in such manner as may be prescribed. The forms prescribed under the schedule in this connection and the foot-notes thereto make it clear beyond all doubt that each intermediary separately, and not the intermediaries jointly, could exercise their choice of retention.

This was clear from clauses (iii), (iv), (v) and (vi) of the foot-notes appended to the form. This was also the only reasonable interpretation for different co-sharers of a holding may have other lands in their possession and unless the right of choice and the computation of 25 acres is separately read into the provisions it would be impossible to work the same.

(3) While it is true that on the vesting no partition of any holding is effected and the various records are also not immediately corrected, the definition of 'holding' in the Tenancy Act clearly shows that an undivided share in land can be the subject matter of a separate tenancy and can constitute a holding of a raiyat or a under raiyat. Therefore, E though the land remains undivided till it is demarcated by metes and bounds there is nothing wrong in saying that the undivided share of a raiyat becomes the subject matter of a separate tenancy directly under the State as from the date of vesting. Merely because the finally published record-of-rights has not been drawn up under section 47 read with rule 3 IA, it cannot be said that the holding continues to be a F joint holding or that the raiyats continue to be the co-sharers of each other.

( 4) It is true that the expression "terms and conditions" in rule 4 includes the right of pre-emption under section 26-F and section 26-F has also been specifically included within the meaning of Rule 4(3) as G amended in 1962. However, the exrcise of a right of pre-emption under section 26-F is conditional on the person claiming to exercise the right being a co-sharer of the holding a portion or share of which has been transferred to outsider. In view of the conclusion thatthe individual co-sharers of the holding cease to be co-sharers after the vesting, there will be no scope for any application under section 26-F.

H This, however, does not mean that rule 4(3) as amended in section

' '

26-F is redundant. It may be that on the date of vesting there may be A no co-sharer in a raiyati holding. But, where after the date of vesting, the individual holder di.es and a number of co, sharers come into being by devolution of his interest, the provisions of section 26-F read with rule 4(3) will come into play. Similarly, if subsequent to the date of vesting, one of the erstwhile co-sharers transfers a portion of his holding to another, that person becomes a co-sharer of the holding along B with his vendor. If one of these two co-sharers transfers a portion of the holding to another person, section 26-F will apply. Thus S. 26-F has a part to play even in the new scheme of things and is not rendered otiose or redundant by the findings given earlier.

(5) It is true that sub-rule (3) of rule 4 was further amended on c Ist August, 1964, deleting the reference to section 26-F in that sub rule. This deletion, however, did not mean that the right of preemption has been taken away. This amendmenJ; too)< place because the West Bengal Land Reforms Act, 1955, by section 8 created a right of pre, emption similar to the one conferred by section 26-F. This section came into force on 22nd October, 1963. Initially there were some D differences between section 26-F and section 8 of the West Bengal Land Reforms Act in that, under the former, the application had to be made to the Court while, under the later, it had to be made to the Revenue Officer. After the enforcement of section 8 it became wholly unnecessary to allow section 26"F to remain in sub rule (3) of rule 4. It took some time for this amendment to be given effect to. Section 8 will E apply reagarding transfers taking place after the enforcement of section 8.

We have heard arguments on behalf of several counsel in respect of the points at issue in these appeals. The Full Bench judgment of the Calcutta High Court has discussed all the various aspets and it has F come to the conclusion for the reasons summarised above, and elaborated by it, that the right of pre-emption could not survive the 1953 Act. Counsel have been. unable to persuade us to take a view different from that of the Full Bench. We, therefore, express complete concurrence with the views of the Full Bench.

G We would also like to point out that the decision of the Full Bench has been in force in the State of West Bengal since 1972.

Interests in land must have been transferred during the past eighteen years on the basis that the principles of the Full Bench decision would r

apply. So, even if tbere were any force in the contention urged on H behalf of the appellants-and as we have already pointed out, no

grounds have been urged before us strong enough to persuade us to differ from the Full Bench-we would have been very reluctant to alter the legal position as settled for a very long time in the State of West Bengal by the decision of the High Court. By this observation we should not be understood to have expressed any reservations on our part in accepting the Full Bench decision as correct. On the other hand, having considered the pros and cons urged before us, which had also been urged before the High Court, we are in full agreement with the Full Bench decision. We, therefore, affirm the judgment of the Full Bench.

In the light of the above discussion, we may now consider the several appeals before us:

( 1) C.A. 626/75 is a direct appeal from the Full Bnch judgment.

It stands dismissed.

Sri Ghosh, for the respondents, also urged that the application D for pre-emption in the present case was made u/s. 26-F of the Tenancy Act which had ceased to be effective after 1964 amendment and hence should have been rejected. He also contended that S. 26-F could be availed of only in respect of an occupancy raiyat whereas the interest transferred in the present case was a "mokarari" interest. These points do not appear to have been raised in the High CourqAnyhow, it is E unnecessary to go into these contentions as we have held, even otherwise, that the application for pre-emption is not maintainable.

(2) C.A. 291 of 1976-All the Courts have concurrently applied the Full Bench decision. The appeal, therefore, fails and is dismissed.

(3) C.A. 2449/80-In this matter, the land in question is nonagricultural land. The High Court held that the Full Bench decision relates only to agricultural lands and that the interests of non-agricultural ienants remains unaffected by the 1955 Act. This point requires a little consideration.

G So far as non-agricultural tenancies are concerned, a right of pre-emption among co-sharers was conferred by S. 24 of the West Bengal Non-agricultural Tenancy Act, 1949. We have earlier seen that the 1953 Act originally provided for vesting only of the interest of 'intermediaries' in the State and the definition of 'intermediary' took m only a holder above 'a raiyat or under-raiyats' in respect of H agricultural land and above 'a non-agricultural tenant'. The sights of 1

'raiyats and utzder-raiyats' were brought within the pil!'VieW of the A vesting provisions when Chapter VI of the 1953 Act was brought into force; but there is no statutory provision that briiigs non-agticulturai tenants within the scope of the vesting provisions. This has been pointed out by this Court in Shibasankar v. Prabartak Sangha, (1967] 2 SCR 558 at p. 563 which has been followed in a number of decisions of the Calcutta High Court and applied, after the Full Bench decision, in B Sastidas Mullick v. J.L.R.O. Parrackpore Circle and Ors., (1977] 1 CU 695 at p. 701 by a Bench comprising of Sabyasachi Mukharji and M.M Dutt, JJ. The High Court, in our view, was right in making the distinction and upholding the right of pre-emption in this case. The appeal, therefore, fails and is dismissed.

(4) C.A. 825/81-Thisis a case for claim of pre-emption under S. 8 of the 1955 Act. It is necessary to set out a few facts. The lands in R.S. Khatian No. 331 belonged to four brothers Jadhunath, Madhusudan, Siddeshwar and Maniklal. Later, Madhusudhan died and his interest devolved on his father Ashutosh and his brother Mukti. Siborani purchased plot Nos. 1947, 2199 and 363 in this khatian by a registered deed dated 28/5/68 from the holders. The second petitioner purchased plot no. 2169 in the khatian on 19.5.69 from the holders.

The respondent Shravani Ghosh is a stranger who purchased the disputed property from Jadhunath, Siddeswar and Maniklal by a deed dated 4.5.71. Subsequently, a deed dated 21.6.71 was executed in her favour by Maniklal and Ashutosh purportedly to rectify a defect in the earlier deed. Thereupon, the purchasers under the earlier deeds, Siborani and another claimed a right of pre-emption under S. 8 of the 1955 Act. The.application was allowed by the Munsif and the District Judge but disallowed, on reision,-by the IBgh Court.

Learned counsel for the appellant contended that the present case fell within the exceptions outlined in the Full Bench case, under which the right of pre-emption survives. He relied, in support of this contention, on sub paras (2) and (3) in the following passage from thr Full Bench judgment, where the High Court summed up its conclusions:

"28. For the reasons aforesaid, we hold as follows-

(1) After the enforcement of Chapter VI of the Act and the vesting of interest of raiyats and under-; aiyats on

and from April 14, 1956 corresponding to Baisakh 1, 1363 B.S. the co-sharer raiyats of a holding ceased to be cosharers and each raiyat of the holding became a direct 14

""' A tenant under the State in respect of the land of that holding which he is entitled to retain under sub-section(!) of S. 6.

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 S. 26-F cannot arise, for, the condi-

B tion precedent to the exercise of the right of pre-emption under Section 26-F being that the person exercising that right must be a co-sharer of the person making the transfer.

(2) When a raiyat having a separate holding or tenancy created by virtue of sub-section (2) of S. 6 relating to the land retained by him under sub-section(!) of S. 6 dies leavc ing more than one heir, such heirs will become co-sharers of such holding and will be entitled to the right of preemption under Section 26-F. Similarly, when the raiyat of such a holding transfers a portion of the holding to another person, that person will become a co-sharer of the raiyat

D and the right of pre-emption will also be available in such a case.

(3) A transfer made by a co-sharer raiyat as contemplated by Cl. (2) above before the enforcement of Section 8 of the West Bengal Land Reforms Act, 1955, may be pre-empted

E by another co-sharer in the tenancy in accordance with Section 26-F, but a transfer made after the enforcement of Section 8, the right of pre-emption by a co-shareF can only be exercised in the manner laid down in Section 8 of the West Bengal Land Reforms Act.

(4) The under-raiyats have been elevated to the status of raiyats on the enforcement of Chapter VI. There is no difference between the position of raiyats and that of under-. raiyats and our decision on the question as to .the effect of the enforcement of Chapter VI on the right of pre-emption of raiyats will also apply to under-raiyats.

(5) The decisions in 68 Cal. W.N. 574 (A.LR. 1964 Cal.

460) and Jyotish Chandra Das v. Dhananjay Bag., [ 1964) 68 Cal. W.N. 1055 in so far as they proceeded on the footing that the raiyats of a holding continued to be co-sharers even after vesting, are erroneous but they have correctly interpreted the expression 'terms and conditions' in Rule 4." ,_ H I

A.B. HALDAR v. GANGAMONJ MONDAL [RANGANATHAN, J.] 541

Learned counsel for the respondents, on the other hand, contended rhat, while the first instance given in sub-para (2) above by the Full Bench may be correct, the second instance and its follow-up in subpara (3) are not correct. He pointed out that once each co-sharer in the earlier holding is held to become an independant tenant directly under the State, any alienee from him acquires his interest pro tanto and cannot become his co-sharer. His submission was that the Full Bench has erred in considering them to be co-sharers. It is not necessary to express any views on this contention as, in our opinion, the above observations are not applicable on the facts found in the present case.

Here the "co-owners" of the former R.S. Khatian 313 have sold identifiable plots under different sale deeds to different parties. In this state of affairs, the transferees under the 1968 and 1969 deeds have acquired 'title to identifiable .Plots and are not co-sharers ith the.original transferors. There is no question of their claiming pre-emption as against the transferees under the 1971 documents merely because all the plots at one time formed part of one integral holding. We are, therefore, of opinion that the High Court was correct in holding that no right of pre-emption could be exercised by the petitioners. This appeal, therefore, fails and stands dismissed.

(5) C.A. 2231182-This appeal has to be dismissed in view of our order upholding the Full Bench decision. We direct accordingly.

(6) S.L.P. (Civil) 1037/74-in this case, the High Court, following the Full Bench decision, held that the petitioner was not entitled to claim pre-emption. The petition has, therefore, to be dismissed. We order accordingly.

(7) S.L.P. (Civil) 1577/74-The High Court disposed of this matter by following the Full Bench decision. The decision is affirmed F and this petition dismissed.

(8) S.L.P. (Civil) 9882/80-Since the High Court has only followed the Full Bench decision, there are no merits in this appeal which is dismissed.

All .the appeals and SLPs, therefore, fail and are dismissed. But in the circ.umstances we make no order as to costs.

R.S.S.

Appeals and SLPs dismissed.