A partition among co-sharer tenants without the landlord's consent does not split up the tenancy or terminate their co-sharer status, and they remain entitled to make pre-emption applications under Section 24 of the West Bengal Non-Agricultural Tenancy Act, 1949.

( 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-emption was 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 th