The right of pre-emption under Section 26-F of the Bengal Tenancy Act is not available in respect of an occupancy holding created by a grant from the landlord.

( 1 ) THIS Revision Case is one of the group of Revision Cases numbered as Full Bench Reference No. 1 of 1968 referred to the Full Bench bv Laik and S. K. Mukheriea. JJ. under Chapter VII, Rules 1, 2 and 4 of the Appellate Side Rules. The point which induced the learned Judges of the Division Bench to refer these cases to the Full Bench is, whether the right of preemption under Section 26-F of the Bengal Tenancy Act survived the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954) after Chapter VI thereof came into force. That point has been decided by us in our judgment delivered to-day in some other Revision Cases included in the Full Bench Reference No. 1 of 1968. The present Revision Case with which we are concerned, involves some other points and as such-it is being disposed of separately.

( 2 ) THIS Rule has been obtained by the petitioner whose application for pre-emption under Section 2g-F was dismissed by the Munsif. First Court. Aram-bagh by his order dated June 24, 1960. On appeal by the petitioner, the learned Subordinate Judge, Additional Court, Hooebly. affirmed the order of the learned Munsif and dismissed the appeal.

( 3 ) ONE Satish Chandra Singha settled certain land of which t'he disputed land forms part, by a Patta dated April 13, 1954 in favour of one Ajit Kumar Mondal in occupancy right. Ajit Kumar Mondal sold half share in the land to the petitioner on July 18, 1958. The petitioner, therefore, became a co-sharer of Aiit in respect of the holding. On May 10, 1959 Aiit sold. the remaining half share to the opposite parties who are strangers. The petitioner made an application for pre-emotion under Section 26-F in respect of the said half share of the holding transferred bv Aiit in favour of the opposite parties. The application was opposed by the opposite parties who contended inter alia that neither the petitioner nor the said Aiit Kum-r Mondal had any right of occupancy in the holding concerned and as such the application for pre-emption under Section 26-F was not maintainable.

( 4 ) BOTH the courts below have taken the view that the right of preemption under Section 26-F is not available in respect of an occupancy holding created by a grant from the landlord.

( 5 ) IN this case, there is no dispute that the predecessor-in-interest of the petitioner and the opposite parties namely, the said Ajit Kumar Mondal was not a settled raiyat of the village in which the holding is situate. By the Patta dated April 13, 1954 occupancy right was conferred by the landlord Satish Chandra Singha in favour of Aiit. The question necessarily arises whether right of occupancy can be created by a grant and whether the holder of such a right is entitled to avail of the statutory right of pre-emption under Section 26-F. In Bindeshwari Prasad Singh v. Kesho Prasad Singh. 31 Cal WN 74 = (AIR 1926 PC 79 ). it has been observed by the Privy Council that "a right of occupancy under the Bengal Tenancy Act, 1885, appears to be a statutory right, and is not conferred by a gift from a proprietor. " This observation suggests that a right of occupancy cannot be conferred by a grant from the landlord. The right lias to be acquired in accordance with the provisions of the Bengal Tenancy Act.

( 6 ) MR. Mitter, however, strongly relied on a decision of R. C. Mitter. J. in Jogendra Narayan v. Askar Ulla, ILR (1937) 1 Cal 455 = (AIR 1937 Cal 271 which has been affirmed in the Letters Patent Appeal from that decision by Guha and Bartley, JJ. It has been held by Mitter, J. that a right similar to occupancy right under the Bengal Tenancy Act may be conferred by a landlord upon his tenant by an express grant. Mitter, J. observed as follows :--"occupancy rights are creatures of statutes, or to be more precise the creatures of custom adopted by statute, which by defining the nature of the evidence, which a person claiming such rights is required to adduce, have extended such rights to a larger class o. f raiyats