P L D 1961 Dacca 269 (PLP)

These revisional applications arise out of two separate applications made by opposite party, Karam Ali Mondal under 6eption 26‑F of the Bengal Tenancy Act. The applications were heard analogously by the learned Munsif, who decided them and disposed them of by a single judgment. Similarly, the revisional applications before me have been heard together, and this judgment will dispose of both these Rules. The facts of these cases may be briefly stated as follows

2. The said Karam Ali Mondal filed the aforesaid appli cations on the averment that the disputed piece of land appertained to Khatian No. 86 of Mauza Khailkair. Admittedly, the jote in question originally belonged to one Kandura Mondal. It is also admitted that one Tona Gaian and another person called Lorani Mondal auction‑purchased the jote. The said auction‑purchasers possessed the tenancy separately by amicable division and separate payment of rent. Lorani died leaving behind two sons, namely, Karam Ali (applicant) and Raham Ali and two daughters, namely, by the name of Falujan and Alujan, and a widow called China Bibi. On 20th December, 1956, Falujan sold to Malu (predecessor of the petitioner before me) '07 decimals of land which is the subject‑matter of Miscellaneous Case No. 84 of 1957. On the same day, she also sold to Malu 24 decimals of land which is the subject‑matter of Miscellaneous Case No. 85 of 1957. The petitioner Karam Ali who is a brother of the vendor Falujan, therefore, claimed that he was entitled to pre‑empt the aforesaid parcels of land thus transferred. The said applications were opposed by the heirs of Malujan, the vendee who died during the pendency of both the miscellaneous cases. They contended in the first place that they were the co‑sharers in the tenancy, and, therefore, an application under section 26‑F of the Bengal Tenancy Act was not maintainable. Their main contention, however, is that the heirs of Lorani filed a partition suit against the applicants, namely, Karam Ali Mondal and others, and obtained a decree. In execution of the decree obtained in the said suit plaintiff alone got an allotment of plots in respect of which pre‑emption is claimed by the applicant. It has been contended that upon the aforesaid partition, Karam Ali Mondal ceased to be a co‑sharer in respect of the tenancy. The learned Munsif who decided the said applications negatived the contention that the petitioner before me was a co‑sharer in respect of the tenancy. He further held that inasmuch as the co‑tenancy was not separated under the provision of section 88 of the Bengal Tenancy Act, it continued to exist, and Karam Ali Mondal was, therefore, a co‑sharer within the meaning of section 26‑F of the said Act. On the aforesaid findings the said applications were dismissed by the learned Munsif.

3. Against the order passed by the learned Munsif, petitioner preferred two appeals which were heard and disposed of by Mr. H. M. R. Siddique, Subordinate Judge, Dacca. The appeals were marked as Miscellaneous Appeals Nos. 147 and 148 of 1958. They were heard together and disposed of by a single judgment. The learned Subordinate Judge reversed the judgment and order passed by the learned Munsif, and allowed the appeal.

4. Thereupon the petitioner moved this Court in its revisional jurisdiction, and obtained these present Rules. Both t Rules raise a common question of law.

5. At the hearing of these Rules, Mr. S. K. Sen appeared for petitioner, and nobody appeared to oppose them.

6. The only point that was pressed on behalf of the petitioner by Mr. Sen is that upon the aforesaid partitions, the parties in the applications ceased to be co‑sharers. He did not press any other point. Inasmuch as nobody appeared before me to oppose these Rules Mr. Sen has fairly placed before me certain decisions which are in his favour, as well as those which are against him. In the applications before me the admitted fact is that opposite party Karam Ali Mondal and the predecessor of petitioner were co‑sharers. It has also been proved and accepted by both the Courts below that there was a partition suit between Karam Ali Mondal and the predecessor of petitioner. As a result of the said suit, a separate portion of the jama was allotted to the parties to the suit. Mr. Sen has contended that upon such partition, the parties ceased to be co‑sharers. In support of this argument he has placed before me a decision of a Single Bench of the Calcutta High Court in the case of Debendra Nath Sen v. Ganendra Nath Bera (53 C W N 107). In the aforesaid case there was a separa tion of rent and separation of tenancy under section 88 of the Bengal Tenancy Act. It was held that the separation of the jama under the aforesaid section 88, had the effect of putting an end to the joint and several liability of co‑tenants, and, therefore, an applica tion for pre‑emption, after such an order, is not competent. It was further held that section 26‑F of the Bengal Tenancy Act merely adjusts the rights of co‑tenants, and it has no reference to the landlord. Partition among co‑tenants is binding among the co‑tenants who join in the partition, and is effective against the whole world except the landlord. The aforesaid case was discussed in another decision of a Division Bench of the same Court in the case of Abinash Chandra Jana and others v. Chakradhar Khatua (55 C W N 717). In the aforesaid case of Abinash Chandra Chakradhar Jana and others v. Chakradhar Khatua, it was held that where there has been a partition of the lands of a holding, and these are separately possessed by the tenants, but the holding has not been split up, and no separate holdings have arisen, section 26‑F of the Bengal Tenancy Act gives to co‑sharer tenants of the holding the right to pre‑empt in case one of such co‑sharer tenants sells his share of the land. Chunder J. (at page 717 of the report) observes as follows : "The facts are not in dispute except as to whether there was a partition or not. The facts briefly are that three sets of tenants were amongst themselves separately possessing the lands of the holding. The District Judge has held that there was a partition, and he has relied upon an admission made in the sale deed which is the title deed of the pre‑empting co‑sharer tenant. The position was accepted by the District Judge, namely, that there was a partition of the lands of the holding. It must be said that the holding had not been split up under section 88 of the Bengal Tenancy Act, and there have not arisen separate holdings. All the tenants are co‑sharer tenants of the holding. Section 26‑F of the Bengal Tenancy Act gives to co‑sharer tenants of a holding the right to pre‑emption in case one such co‑sharer tenant of the holding sells his share of the land. Against this, a decision of Mr. Justice G. N. Das sitting singly in the case of Devendra Nath Sen v. Ganendra Nath Bera, has been relied upon by Mr. Chakraborty on behalf of the petitioners. The learned District Judge rightly pointed out that in Mr. Justice Das's case there was a split‑up of the holding, and creation of separate tenancies under section 88 of the Bengal Tenancy Act. Therefore, the decision of Mr. Justice Das as far as it went was a correct decision on the facts of that case. In that case Mr. Justice Das is taken by Mr. Chakraborty to have proceeded upon the ground that section 26‑F of the Bengal Tenancy Act will not apply in case the lands of the different co‑sharers have been sub‑div‑1ed among themselves without the holding itself being split up. It may be pointed out that if such was in reality the decision of Mr. Justice Das, the decision is not, in our opinion, correct. The section definitely gives the right of pre‑emption to a co‑sharer tenant so long as the tenancy in the holding remains a joint one."

7. I respectfully agree with the aforesaid observations made by Chunder J. in the case of Abinash Chandra Jana and others v. Chakradhar Khatua. The view taken by Chunder J, in the aforesaid case will find further support in the observation made by Derbyshire C. J. in the case of R. A. Basil and others v. Charu Chatterjee (46 C W N 853.). In the aforesaid case the facts are different from those before me, and the main question was whether the acquisition of a portion of the superior interest by a co‑tenant had the effect of merging his tenancy in the superior interest so acquired by him. In the said case a co‑tenant applied to exercise his right of pre‑emption under section 26‑F of the Bengal Tenancy Act. One of the points urged against the applicant was that inasmuch as the applicant had purchased the superior interest of the landlord his tenancy was merged in the superior interest so purchased. It was, thereupon, argued that the applicant ceased to be a cc‑tenant within the meaning of section 26‑F of the said Act. It was held, inter alia, that the co‑tenancy could only be split up in accordance with the provision of section 88 of the Bengal Tenancy Act, and that, until it was so split up, the co‑tenancy continued to exist. Derbyshire C. J. (at page 854 of the report) observes as follows "In respect of that piece of land Momraj was under an obligation to pay to the landlord Rs. 13 per annum as rent, and perform the other obligations of a tenant. When he died, that letting and the rights under it and the obligations arising out of it were shared jointly by those who were entitled to succeed to the land, namely, Jnnabali, Fatehjaa, Ahmedali, and Ashrafali. These four persons were found jointly in respect of that holding to perform the duties and obligations arising out of it as well as to enjoy the benefits. Each was liable to pay the whole of the rent, and each having paid his rent was entitled to enforce contribution against the others according to their respective shares. But that jama was undivided * * * * The position then appears to be that until there is a division of the holding or tenancy in accordance with the provisions of the Bengal Tenancy Act, the holding or tenancy remains, and as long as the holding or tenancy remains the rights of the owners of the holding or tenancy remains inter se as they did when the holding or tenancy was inherited from Momraj Mondal." At page 855 of the report, the learned Chief Justice proceeds to observe as follows : "Here Basil & Co. were not simply tenants whose rights would be merged in those of the landlord ; they were co‑tenants bound to the other co‑tenants in respect of a certain piece of land, and until the bonds which bound them to their co‑tenants had been severed as provided by the statute, there could be no merger of their tenant's rights in their landlords' rights." In the present case before me, the aforesaid partition would not have the effect of separating the co‑tenancy inasmuch as there was no separation of the tenancy in accordance with the provision under section 88 of the Bengal Tenancy Act. As a result of the said partition the parties came to hold exclusively some specified portion of the land, but the liability of both the parties to pay rent in respect of the tenancy continued and remained in tact. I, therefore, hold that the Courts below rightly held that in the aforesaid circumstances Karam Ali Mondal continued to remain as a co‑sharer of the petitioner in respect of the disputed land. For reasons stated above these Rules are discharged without any order as to costs. K.B. A. Rules discharged.