A co-sharer raiyat can pre-empt a transferee who is a co-sharer in the tenancy under a previous purchase.

( 1 ) THIS Rule has been referred to a Full Bench by a Division Bench of this Court. The circumstances which induced the learned Judges of the Division Bench 'to refer the Rule to the Full Bench is that there is a conflict between two Division Bench judgments of this Court on the following point as formulated by them:--"whether an application for preemption can be resisted by a party under the provisions of the West Bengal Land Reforms Act, 1956, who has ceased to be a co-sharer on the date of hearing of the application even though he was a co-sharer on the day the application was made. "the Division Bench decisions which are said to be conflicting on the point are Bidyut Baran De v. Nityananda Das, (1969) 73 Cal WN 654 and Karamali Sheikh v. Necher Ali Sheikh, in Civil Rule No. 1926 of 1968, disposed of on October 7, 1969 (Cal ). It may be stated at the outset that the point referred to above has not been correctly formulated by the Division Bench which will appear from the facts of the case which are stated hereafter.

( 2 ) ONE Mohammad Sepai was admittedly a co-sharer of the disputed holding. On January 4, 1964, by a registered Kobala he transferred to the opposite party Sultan Sepai. . 64 1/3 acres of land out of 1. 93 acres appertaining to Khatian No. 118. Again on October 19, 1966, by another registered Kobala he transferred. 07 acres of land appertaining to the said Khatian to the opposite party. On December 9, 1966, the petitioner Hiru Sepai, a co-sharer of the disputed holding filed an application for pre-emption under Section 8 (1) of the West Bengal Land Reforms Act, 1956 (hereinafter referred to as the Act) before the Revenue Officer in respect of the first transfer dated January 4, 1964. The said application was registered as Misc. Case No. 166 of 1966. On November 13, 1967, he made another application for pre-emption under Section 8 (1) in respect of the second transfer dated October 19, 1966, which gave rise to Misc. Case No. 214 of 1967. By two separate orders both dated July 14, 1969, the Revenue Officer, allowed both the applications for pre-emption. The opposite party filed two appeals being Misc. Appeal No. 4 of 1967 relating to the first transfer and Misc. Appeal No. 3 of 1969 relating to the second transfer. It so happened that before Misc. Appeal No. 4 of 1969 relating to the first transfer was disposed of the learned Munsif by his order dated December 22, 1970, allowed the Misc Appeal No. 3 of 1969 on the ground that on the date of the second transfer, the opposite party Sultan Sepai having already become a co-sharer by virtue of the first transfer in his favour, the application for pre-emption was not maintainable.

( 3 ) THE petitioner moved this Court under Article 227 of the Constitution against the said order of the learned Munsif rejecting his application for pre-emption of the Second transfer and obtained a Rule being C. R. No. 470 of 1971. The Rule came up for, hearing before S. K. Bhattacharyya, J. , who referred the matter to a Division Bench by his order dated February 3, 1972. As aforesaid, the Division Bench in its turn referred the Rule to the Full Bench. It may be stated that during the pendency of the Rule the other Misc. Appeal being Misc. Appeal No. 4 of 1969 in respect of the first transfer was dismissed by the learned Munsif by his order dated March 6, 1971.

( 4 ) THE point which arises from the facts stated above is, whether a person who becomes a co-sharer of a holding by virtue of a prior purchase can be pre-empted by a co-sharer raiyat of the holding in respect of the second or subsequent purchase made by him.

( 5 ) IN the unreported Bench decision referred to above, the petitioner purchased a portion of the holding by a Kobala dated May 8, 1965. Thereafter, he purchased another portion of the holding on June 16, 1965. Both these transfers were sought to be pre-empted by a contiguous raiyat, the opposite party in the Rule, on the ground of vicinage under Sectio