This is a Rule calling upon the Opposite Parties to show cause why an order of the Courts below allowing the application of Opposite Parties Nos. 1 and 2 for pre-emption should not be set aside. The question for determination is whether Opposite Parties Nos. 1 and 2 were co-sharers of Opposite Parties Nos. 5 and 6, Petitioner's vendors, within the meaning of sec. 26F of the Bengal Tenancy Act. Opposite Parties Nos. 1 to 4 purchased 8 annas share in the tenancy. They are also the landlords. The contention made on behalf of the Petitioner is that this deprives them of the right to preempt.
The Munsif held that inasmuch as there was no merger, the tenancy still exists. The Petitioners have a share in it and consequently the right to preempt. In support of the Rule Mr. Das relies on the definition of “tenant” in the Bengal Tenancy Act, which apparently excludes the idea of a man holding land under himself. The Subordinate Judge got over the difficulty by pointing out that each of the Petitioners holds under his co-sharers. On this view the sole landlord has no right to pre-empt while a co-sharer landlord has.
In my judgment the view taken by the learned Munsif is right. There has admittedly been no merger, and accordingly the occupancy holding still exists. If Opposite Parties Nos. 1 to 4 have no interest in it on account of the fact that they are the landlords, then it must belong entirely to Opposite Parties Nos. 5 and 6. This is absurd, as their share is admittedly 8 annas. Under the provisions of sec. 22 of the Bengal Tenancy Act the interest of Opposite Parties Nos. 1 to 4 as landlords has been kept distinct from their interests as tenants. They were, therefore, co-sharers of Opposite Parties Nos. 5 and 6.
The Rule is discharged with costs to Opposite Parties Nos. 1 and 2, hearing-fee, one gold mohur.
P.C