The right of pre-emption of occupancy raiyats survived the onslaught of the West Bengal Estates Acquisition Act.

( 1 ) THE petitioner says Chat one Radha Ranjan Saha and be himself were co-sharer tenants in respect at C. S. Plot No 503 of Khatian No. 90. in Mouza Kumardanga, District Birbhum. On the death of Radha Kanjan, his widow Nirmala Bala succeeded him. She sold her share in the aforementioned plot to opposite party 1 to 3, certain strangers, by a deed dated January 30, 1959, without notice to the petitioner. The petitioner says that his status in the ptol of land was that of an occupancy raiyat and that he became entitled to exercise his right of pre-emption against the sale, under Section 26-F of the Bengal Tenancy Act Since admittedly no notice under Section 26-C of the Bengal Tenancy Act had been served upon the petitioner and since the petitioner had no exact information about the sale before he took out a certified copy of the deed of sale, on April 13, 1959, he could not apply for pre-emption before April 18, 1959.

( 2 ) THERE was a written objection tiled to the application for pre-emption by opposite party, No. 1 to 3, in which it was, inter alia, pleaded:- (a) that the tenancy was not governed by the Bengal Tenancy Act and as such the application under Section 26-F was not maintainable; (b) alternatively, pursuant to an agreement to reconveyance, the opposite party Nos. 1 to 3 re-conveyed the property to Nirmala Bala on April 9, 1959, and had the document of reconveyance registered on May 11, 1959. Since the property no longer stood conveyed to strangers, the claim for pre-emption should fail; (c) the claim was barred by limitation.

( 3 ) AFTER the filing of the objection, the present petitioner amended his application for preemption in the following mannen (i) added Nirmala Bala as opposite party No. 4 to his application, (ii) made an alternative prayer for pre-emption under Section 24 of the West Bengal Non-Agricultural Tenancy Act.

( 4 ) NIRMALA Bala, thereupon, filed a written objection to the application for pre-emption, substantially repeating the grounds urged by opposite party Nos. 1 to 3.

( 5 ) THE learned Munsiff held that the tenancy was governed by the Bengal Tenancy Act and that the application for pre-emption was not barred by limitation. He held further that the deed of reconveyance was not a real but a purposive document and was brought into existence only by way of an attempt to defeat the application for preemption. In the view that he took, the learned Munsif allowed the application.

( 6 ) THE opposite party appealed against the order of the Munsif before the Court of the District Judge at Birbhum, Before the learned District Judge, it was, however, conceded that the tenancy was governed by the Bengal Tenancy Act, and that the re-conveyance did not affect the petitioner's right of pre-emption. The points which were urged in appeal were two, namely, (a) that the claim for pre-emption must abide by the terms of the agreement for re-conveyance of the property to the vendor, Nirmala Bala, or (b) that the claim for pre-emption must tail on the ground that such a right did not survive in respect of land retained by an intermediary, after the vesting of occupancy raiyats' tenancies in the Slate Government, under the provisions of the West Bengal Estates Acquisition Act. The learned District Judge overruled the first contention but gave effect to the second and in that view reversed the order of the trial Court, allowed the appeal and dismissed the application for preemption.

( 7 ) AGGRIEVED by the appellate order, the petitioner moved this Court, under Section 115 of the Code of Civil Procedure and obtained this Rule.

( 8 ) ON the point whether the right of preemption, under Section 26-F of the Bengal Tenancy Act survived the onslaught of the West Bengal Estates Acquisition Act, there are severaj reported decisions of this Court, all by Judges sitting singly, namely, (i) Ganesh Chandra Mahata v. Sudarshan Dey, 62 Caj WN 360 -- (per Sen, J.); (ii) Panchu Sundari Dasi v. Haripada Biswas. 65