Calcutta High Court
Amjad Talukdar vs Rohini Kanta Bhattacharjya And Ors. on 5 May, 1941
Equivalent citations: AIR1942CAL68, AIR 1942 CALCUTTA 68
ORDER Henderson, J.
1. This is a rule calling upon the opposite parties to show cause why an order of the Courts below allowing the application of opposite parties 1 and 2 for pre-emption should not be set aside. The question for determination is whether opposite parties 1 and 2 were cosharers of opposite parties 5 and 6, petitioner's vendors, within the meaning of Section 26 F, Ben. Ten. Act. Opposite parties 1 to 4 purchased 8 annas share in the tenancy. They are also the landlords. The contention made on behalf of the petitioner is that this deprives them of the right to pre-empt. The munsif held that inasmuch as there was no merger, the tenancy still exists. The petitioners have a share in it and consequently the right to pre-empt. In support of the rule Mr. Das relies on the definition of tenant in the Bengal Tenancy Act, which apparently excludes the idea of a man holding land under himself. The Subordinate Judge got over the difficulty by pointing out that each of the petitioners holds under his cosharers. On this view the sole landlord has no right to pre-empt while a cosharer landlord has. In my judgment the view taken by the learned Munsif is right. There has admittedly been no merger, and accordingly the occupancy holding still exists. If opposite parties 1 to 4, have no interest in it on account of the fact that they are the landlords, then it must belong entirely to opposite parties 5 and 6. This is absurd, as their share is admittedly 8 annas. Under the provisions of Section 22, Ben. Ten. Act, the interest of opposite parties 1 to 4 as landlords has been kept distinct from their interests as tenants. They were therefore co-sharers of opposite parties 5 and 6. The rule is discharged with costs to opposite parties 1 and 2, hearing fee one gold mohur.