M.M. Dutt, J.
1. The only question that is involved in these Rules is, whether on the partition of the land comprised in the tenancy of non-agricultural tenants without the knowledge and consent of the landlord, such tenancy is split up and the tenants ceased to be co-sharers.
2. On Dec. 3, 1961, there was a partition between the co-sharer tenants of the tenancy in question. Upon such partition, Plot No. 1768, of Khatian No. 618, of Mouza Radhanagar, was exclusively allotted to the opposite parties Nos. 2 and 3, Saralabala and Susama, in Civil Rule No. 2049 of 1973. Plot No. 1767 was, however, kept joint between the co-sharers. There is no evidence that such partition was consented to by the landlord. On Oct. 24, 1965, Saralabala and Susama transferred their interest in Plots Nos. 1768 and 1767 to the opposite party No. 1, Mrityunjay Khan, a stranger, without serving any notice on Shiba Prasanna of such transfer. After Shiba Prasanna had come to know of the transfer, on April 10, 1968 he made an application for pre-emption under Section 24 of the West Bengal Non-Agricultural Tenancy Act, 1949 in the court of the Subordinate Judge, Burdwan. The application was resisted by Mrityunjay, the transferee. His contention was that by the said partition Shiba Prasanna ceased to be a co-sharer and, as such, the application for pre-emption was not maintainable. The learned Subordinate Judge overruled the said contention and allowed the application for pre-emption.
3. Being aggrieved by the order of the learned Subordinate Judge allowing the application for pre-emption, Mrityunjay preferred an appeal which was heard by the learned District Judge, Second Additional Court, Burdwan. The learned Additional District Judge took the view that as by the partition Plot No. 1768 was allotted exclusively to Saralabala and Susama, Shiba Prasanna ceased to be a co-sharer in respect of that plot and accordingly, his application for pre-emptionwas not maintainable so far as that plot was concerned. It was, however, held that in regard to Plot No. 1767, Shiba Prasanna was a co-sharer and he could claim pre-emption in respect of that plot. In that view of the matter, the learned Additional District Judge set aside the order of the learned Subordinate Judge in so far as Plot No. 1768 was concerned, but affirmed the same in regard to Plot No. 1767. Being aggrieved by the said order of the learned Additional District Judge, both Shiba Prasanna and Mrityunjay moved this Court under Section 115 of the Civil P. C. and obtained these two Rules.
4. It has been already noticed that there is no material on record to show that the landlord consented to the partition effected between the co-sharers by a registered deed dated Dec. 3, 1960. On the other hand, the relevant Khatians to which Plots Nos. 1767 and 1768 appertain show that the tenancy is still joint between the co-sharers. Mr. Manindra Nath Ghose, learned Advocate appearing on behalf of the transferee also does not contend that the partition had been effected with the consent of the landlord. In these circumstances, we shall proceed on the basis that the partition was effected without the consent of the landlord.
5. The question came up for consideration before this Court in connection with the exercise of the right of preemption under Section 26-F of the Bengal Tenancy Act which is somewhat similar to Section 24 of the West Bengal Non-Agricultural Tenancy Act. In Debendra Nath Sen v. Ganendra Nath Bera, 53 Cal WN 107 : (AIR 1948 Cal 353), G. N. Das J. took the view that a partition among co-tenants is binding on the co-tenants who joined in the partition and was effective against the whole world except the landlord. In that case also, the partition was effected without the consent of the landlord. It was, however, held that in view of the partition an application for preemption was not maintainable. Mr. Ghose has placed strong reliance on this decision and also on a Bench decision of this Court in Goas Ali Bhuiya v. Lal Mia, 52 Cal WN 90 : (AIR 1948 Cal 27) in which Chakravartti J. (as he then was), who delivered the judgment of the Bench, while considering the scope of Section 26-F observed as follows :
'In view of the scope of the section, it appears to us that by the term 'co-sharer in the tenancy' and 'co-sharer tenant' the legislature meant personswho could claim to be regarded as co-sharers against the tenants.' The said observation of Chakravartti, J. was relied on by G. N. Das J. in Deben-dra Nath Sen's case referred to above. A later Division Bench of this Court in Abinash Chandra Jana v. Chakradhar, : AIR1951Cal499 , dissented from the view expressed by G. N. Das J. and overruled the decision in Debendra Nath Sen's case.
6. We have been pressed hard by Mr. Ghose to disagree with the view of the Division Bench as expressed in Abinash Chandra Jana's case (Supra). Further, Mr. Ghose submits that the principle of law as laid down by G. N. Das J. and Chakravartti J. should be adopted by us in preference to that laid down in Abinash Chandra Jana's case.
7. In Goas All Bhuiya's case (AIR 1948 Cal 27) (Supra), the question that came up for consideration was, whether a purchaser of a share of a co-sharer in the tenancy who was never recognised by the landlord, could acquire the status of a co-sharer tenant and make an application for pre-emption under Section 26-F of the Bengal Tenancy Act. Chakravartti J. took the view that such an unrecognised purchaser was a co-sharer as against the tenants of the holding and was entitled to make an application for pre-emption under Section 26-F. It was, however, expressly laid down by Chakravartti J. that such an unrecognised purchaser had no status of a tenant so far as the landlord was concerned and any payment that would be made by him to the landlord would not be rent but damages for use and occupation. The unrecognised transferee of a share of a non-transferable occupancy holding could not be said to be a tenant, but he was a trespasser vis-a-vis the landlord. With the greatest respect, we are unable to reconcile how an unrecognised transferee who does not become a tenant of the non-transferable occupancy holding under the landlord can become a co-sharer tenant of the holding. Be that as it may, in Goas Ali Bhuiya's case there was no question of partition of the tenancy. It is not disputed that where there is a partition between co-sharers of a tenancy without the consent of the landlord, such partition is not binding upon the landlord and each co-sharer remains liable to pay rent to the landlord. In other words, each co-sharer continues to be a tenant of the holding. If according to Chakravartti J., an unrecognised transferee of ashare in an occupancy holding acquires the status of a co-sharer tenant and becomes entitled to make an application for pre-emption, a co-sharer who remains a tenant even after the partition of the holding will also be entitled to make an application for pre-emption. In our view, so long as the holding is not split up by the partition amongst the co-sharer tenants with the consent of the landlord, each co-sharer continues to be a tenant under the same landlord and is entitled to make an application for preemption as laid down in Abinash Chandra Jana's case : AIR1951Cal499 (supra).
8. In this connection, we may refer to a decision of the Division Bench of this Court presided over by P. N. Mookerjee J. in Uma Shankar Nayak Saha v. Usharani Laha, JLR (1968) 2 Cal 587. In that case, it has been held that unless the tenancy is split up with the consent of the landlord to form separate tenancies, Section 24 of the West Bengal Non-Agricultural Tenancy Act applies, and that mere mutual partition amongst the tenants does not make the partitioned land subject-matter of different tenancies so as to come out of the mischief of Section 24. A similar view has been taken in the case of Motilal Ghosh v. Bimal Chandra Saha by Bachawat and A. C. Sen JJ. in Civil Revn. Case No. 41 of 1961 disposed of on 19-4-1963 (Cal). We, accordingly, overrule the said contention of Mr. Ghose.
9. So far as Plot No. 1767 is concerned, there is no difficulty, for the said plot has been kept joint between the co-sharers and therefore Shiba Prasanna is undoubtedly a co-sharer tenant in regard to that plot and is entitled to make an application for pre-emption. Mr. Ghose submits that after the West Bengal Estates Acquisition Act, 1953 had come into force, the interest of each co-sharer tenant had vested in the State and each had become a direct tenant under the State of West Bengal having a separate tenancy. This contention is without any substance. As the tenancy is admittedly a non-agricultural tenancy, there was no question of vesting of the interests of the tenants. This contention of Mr. Ghose therefore fails.
10. For the reasons aforesaid, we set aside the order of the learned Additional District Judge in so far as he held that Shiba Prasanna was not entitled to make an application for pre-emption in respect of Plot No. 1768. We hold that the application for pre-emption of Shiba Prasanna was maintainable in respect of both the Plots Nos. 1767 and 1768. The order of the learned Subordinate Judge allowing the application for pre-emption is affirmed. Civil Rule No. 2049 of 1973 is made absolute and Civil Rule No. 2827 of 1973 is discharged. There will, however, be no order for costs in either of the said Civil Rules.
D.C. Chakravorti, J.
11. I agree.