P L D 1961 Dacca 356 (PLP)

R. R. Guha with Ishtiaque Ahmed for S. A. Chowdhury for the Opposite‑Parties. This Rule has been obtained by the pre‑emptor petitioner and relates to a proceeding initiated by him under section 24 of the E. B. Non‑Agricultural Tenancy Act. According to the petitioner he took 99 years' lease of one portion of a tenancy sometimes in t.9:)3 and on the same day also purchased the reserved rent in the benami of his‑brother's wife Repu Bala. Subsequently on 17‑6‑57 the opposite‑parties purchased the remaining portion of the tenancy but ‑notice of the transfer was not served upon him as required He, therefore, applied to pre‑empt this sale, made in favour of the opposite‑parties on 3‑9‑

57. The opposite- parties resisted the petitioner's claim before the Court of first instance on two grounds, viz. (1) that the petitioner was not a co‑sharer tenant and therefore, not entitled to come under section 24, and (2) that the disputed land not being a non agricultural land, operation of the said section was not attracted. The learned Munsif found both the points in favour of the petitioner and accordingly allowed his application. He held that no matter whether Repu Bala is or is not a Benamdar, since the petitioner was a co‑sharer of the `land' his prayer for pre‑emption was unanswerable. Against the decision of the learned Munsif there was an appeal and the learned Subordinate, Judge, who eventually heard the same, took a different view in this behalf and held that the expression "land held by a non‑agricultural tenant" occurring in subsection (1) of section 24 is used therein in the same sense in which the word "holding" is used in the Bengal Tenancy Act, so that the petitioner is not entitled to pre‑emption on the strength of his lease. As to his claim on the basis of his alleged purchase of the reserved rent, he found that Repu Bala is not his Benamdar so that this claim, too, has no legs to stand upon. It appears that the plea of limitation, though not taken in the Court of first instance, was raised in appeal and the learned Subordinate Judge, entertaining the same, decided it against the petitioner on the finding that the application for pre‑emption was filed on 2‑9‑58 which was beyond 4 months from the date of the petitioner's alleged knowledge of the disputed transfer. He accordingly set aside the order of the learned Munsif and dismissed the case filed by the petitioner for pre‑emption. .

2. Mr. S. K. Sen, Advocate, appearing on behalf of the petitioner has attacked the order of the learned lower Appellate Court on both the grounds. The first point urged by him is that the learned Subordinate Judge is wrong in holding that Repu Bala is not a benamdar of his client His second connection is that the learned Subordinate Judge committed an error of law to deciding the question of limitation inasmuch as the application for pre‑emption had been actually filed on 3‑9‑57 and not on 2-9‑58 as wrongly found by him. In this connection he submitted that the record of the case, having been missing, had to be reconstructed and that the above error on the part of the learned Subordinate Judge might have been due to some mistake committed in course of the said reconstruction. In support of this contention he pointed out that the case brought by his client bears a number of the year 1957, being No. 46 of 1957, which is by itself sufficient to show that it must have been filed some time during 1957 and not in 1958.

3. So far as the first point is concerned, it may be pointed out that the question whether Repu Bala is or is not a benamdar of the petitioner is one of fact and evidently the learned Subordinate Judge on a consideration of the relevant evidence bearing thereon came to the conclusion that the petitioner's case in this behalf is unfounded and could not at all be established. In his evidence the petitioner himself stated that he paid rents to Repu Bala previously. Further he had previously filed a suit against these opposite‑parties claiming tenancy right under Repu Bala. It appears that the learned Subordinate Judge on a consideration of these admissions made by the petitioner himself together with the other evidence on the record made his finding in this behalf against the petitioner. It is not even contended nor does the order also show that in arriving at the said finding the learned Subordinate Judge committed any illegality or impropriety whatever: This connection. has, therefore, no substance and cannot in fact be entertained. Necessarily the petitioner's claim that he is entitled to pre‑emption on the strength of his alleged purchase in the benami of his brother's wife Repu Bala could have no legs to stand upon.

4. As to the petitioner's claim that he is a co‑sharer tenant of the land by virtue of his 99 years' lease and as such entitled to pre‑empt the disputed transfer made in favour of the opposite- parties, Mr. Sen appearing on his behalf did not actually press this and on the other hand candidly pointed out that there is already a decision of this Court on this point and that is against his client. The reference is to Civil Revision Case No. 739 of 1959. That was a case in which from the use of the word "land" in section 24 of the Non‑Agricultural Tenancy Act, viz‑a‑viz the word "holding" in the corresponding provision, to wit section 26‑F of the Bengal Tenancy Act, the learned Subordinate Judge took the view that section 24 has nothing to do with the tenancy itself so that any co‑sharer tenant of the `land', as distinct from `tenancy', was entitled to exercise the right of pre‑emption conferred thereunder Adverting to this Sattar, J. who heard the above‑mentioned Revision Case held :‑ "On a careful reading of the section itself, however, I am unable to agree with him. The section makes mention of land held by a non‑agricultural tenant and also entitled one or more co‑sharer tenants of such land to apply for pre‑emption. The expression "non‑agricultural tenants" and "co‑sharer tenants", in my view, clearly indicate that the reference to co‑sharer in this section is to the jama itself and not to some particular portion of the land of the jama which forms the subject‑matter of the transfer."

5. Evidently the expression "non‑agricultural land held by a non‑agricultural tenant" occurring in section 24 of the Non -Agricultural Tenancy Act has been used in the same sense in which the term "holding" has been used in section 26‑F of the Bengal Tenancy Act and thus refers to the non‑agricultural tenancy whereof a share or portion has been transferred. In other words the right of pre‑emption conferred by the section is confined to the co‑sharers in the tenancy comprising the subject‑matter of the disputed transfer. Any other view is bound to widen the scope of the section indefinitely and lead to extremely anomalous consequences. If land beyond that comprised within the tenancy in respect of which the pre‑emptor is a co‑sharer tenant were to be taken as land in which also he becomes a co‑sharer or, regarding which, too, he is entitled to pre‑emption, or if on the basis of a fractional lease taken by him, he were to be regarded as a co‑sharer of his landlord as well as his landlord's co‑sharers, one would indeed never know where' to stop, Moreover it is also difficult to follow how one can claim to be a 60‑sharer in any land beyond his leasehold. A lessee taking settlement of some, land, even though that may be a portion of tenancy held by' his' lessor, establishes no connection whatsoever at all with the remaining portion of that tenancy. The subject‑matter of his lease becomes a separate and independent unit and represents his 16 annas interest. He has thus no connection with the remaining interest of his lessor and cannot, therefore, be a co‑sharer with respect thereto. I am accordingly of opinion that the petitioner on the basis of his lease cannot be regarded as a co‑sharer of hi landlord, i.e., the vendor of the opposite‑parties, and is as such not entitled to pre‑empt the disputed transfer made in favour of the latter under section 24 of the Non‑Agricultural Tenancy Act.

6. It would thus appear that the learned lower Appellate Court correctly decided the case so far as the afore‑mentioned points are concerned. And since the petitioner is found not to come within the ambit of section 24, subsection (1) at all the question of limitation becomes redundant and is accordingly not gone into. In the result, the Rule is discharged. K.B.A. Rule discharged.