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PETITIONER: ARDHENDU BHUSAN HALDAR (DEAD) BY L.RS. ETC. ETC.

       Vs.

RESPONDENT: SMT.  GANGAMONI MONDAL ETC. ETC.

DATE OF JUDGMENT18/09/1990

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. SAIKIA, K.N. (J)

CITATION:  1990 AIR 2240            1990 SCR  Supl. (1) 527  1991 SCC  (1) 270        1990 SCALE  (2)620

ACT:     Bengal Tenancy Act, 1985: Section 26F--Whether right  of preemption  conferred  on co-sharers  available  to  holders after interest has vested in the Government under the Bengal Estates Acquisition Act. 1953.     West Bengal Estates Acquisition Act, 1953--Whether right of preemption available to erstwhile co-sharers classes.

HEADNOTE:     Smt.  Gangamoni  Mondal, the respondent in  one  of  the appeals,  purchased  on 29.1.1963 the suit  property.  About three  years and five months after her purchase, the  prede- cessor-in-interest of the appellants made an application for pre-emption  under section 26-F of the Bengal  Tenancy  Act, 1885  on the ground that he was a co-sharer of  the  holding which  comprised the land purchased by the  respondent.  The holding was previously a Raiyati Mokarari interest which had vested in the State under the provisions of the West  Bengal Estates Acquisition Act, 1953. the defence of the respondent was  that, though the predecessor-in-interest of the  appel- lant  and her vendor were the joint holders of the  property in  question, the right of pre-emption available to the  co- sharer had ceased with the coming into force of the  Estates Acquisition Act of 1953.     The  pre-emption application was allowed by the  learned Munsif and his order was confirmed by the learned Additional District  Judge.  In revision, the Full Bench  of  the  High Court  negatived  the contention of the applicant  and  dis- missed the pre-emption application. Dismissing the appeals and SLPs, this Court,     HELD: (1) The Full Bench has rightly come to the conclu- sion  that the right of pre-emption could not survive  under the West Bengal Estates Acquisition Act, 1953. [348B]     (2) Section 26-F of the Tenancy Act, 1885 conferred on a cosharer  tenant of an occupancy holding, a right to  compel another co- 528 sharer  tenant  to  sell his share ’in the  holding  to  him instead  of  to a stranger. The term  "co-sharer"  envisages that  the holding must be under the ownership of  more  than one  person. The holding must be an occupancy holding:  that is,  it  must  be the holding of  raiyats  having  occupancy

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rights.  So long as a division of the holding does not  take place in accordance with section 88 of the Tenancy Act,  the holding  remains a joint holding and each co-sharer will  be entitled  to  preemption in case of transfer of a  share  or portion of the holding by a co-sharer to a stranger.  [340E- F]     (3)  By virtue of the notifications issued by the  State Government under section 4 of the 1953 Act from time to time the  interests  of raiyats and under raiyats vested  in  the State with effect from April 14, 1956. [341C]     (4)  The  effect of 1953 Act was to vest the  rights  of intermediaries (an expression subsequently extended to cover raiyats  and  under raiyats) in the State  Government.  Each raiyat  became a direct tenant under the State and the  land retained by a raiyat of a holding became the subject  matter of a separate tenancy. It was, therefore, no longer possible to  call them co-sharers entitled to pre-emption case  of  a transfer to a stranger. [341D; 345E]     (5)  By a notification dated 28.5. 1954, the  Government of  West Bengal framed rules called the West Bengal  Estates Acquisition Rules, 1954. The original rule 4 merely provided that in the case of agricultural land retained by the inter- mediary,  he shall hold it on the same terms and  conditions as  an  occupancy raiyat under the Tenancy Act,  leaving  it undefined  as  to whether these terms and  conditions  would also  include the right of pre-emption available  under  the Tenancy Act. The amendment of 1962 specifically included the right  of pre-emption available under section 26-F  but  the reference  to section 26-F was omitted by the  amendment  of 1964. This definition, however, did not mean that the  right of pre-emption was taken away. [343F; 344E-F; 347F]     (6)  There  is no statutory provision that  brings  non- agricultural tenants within the scope of the vesting  provi- sions.  The High Court was right in making  the  distinction and  upholding the right of pre-emption in the case of  non- agricultural tenancies. [349A-B] Shibasankar v. Prabartak Sanghs, [1967] 2 S.C.R. 558.     Sastidas  Mullick  v. J.L.R.O.  Parrachpore  Circle  and Ors., [1977] I C.L.J. 695, referred to. 529

JUDGMENT:      CIVIL APPELLATE’ JURISDICTION: Civil Appeal No. 626  of 1975 etc. etc.      From  the  Judgment and Order dated 28.7. 1972  of  the Calcutta High Court in Civil Rule No. 2029 of 1967.      P.K. Mukherjee. D.N. Mukherjee, N.R. Choudhary.  Ranjan Mukherjee. Somnath Mukherjee. for the Appellants.     Sukumar  Ghosh. D.P. Mukherjee and G.S. Chatterjee.  for the Respondents. The Judgment of the Court was delivered by     RANGANATHAN,  J. All these cases involve a common  point which has been decided by a Full Bench of the Calcutta  High Court reported as Madan Mohan Ghosh v. Shishu Bala Atta, AIR 1972  Cal. 502. Civil Appeal No. 626/75 is a  direct  appeal from  the judgment of the Full Bench in one of the batch  of cases dealt with therein. In the other cases, the High Court has decided the matter by following the Full Bench  decision and that is the subject matter of appeal before this  Court. Basically, the question is whether the right of  pre-emption conferred  on co-sharers under the Bengal Tenancy Act,  1885 (hereinafter referred to as ’the Tenancy Act’), is available to  the  holders after their interests in the  holding  have

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vested  in  the  Government under the  West  Bengal  Estates Acquisition Act, 1953 (hereinafter referred to as ’the  1953 Act’).  This  question has been answered by the  Full  Bench (Coram:  A.K. Mukherjea, Sabyasachi Mukharji and M.M.  Dutt, JJ.)  in  the  negative and it is the  correctness  of  this conclusion that is assailed in these proceedings.     To provide a factual background it may be sufficient  to set out the brief facts in C.A. No. 626/75. The  respondent, Smt.  Gangamoni Mondal, purchased, on 29. 1. 1963, the  suit property being land measuring about 15 acres. She  excavated a  portion  of  the land, filled up other  portions  of  it, constructed  a  small structure thereon and  started  living there from 1964. About three years and five months after her purchase, Ardhendu Bhusan Halder, the  predecessor-in-inter- est  of the appellants, made an application for  pre-emption under section 26-F of the Tenancy Act. His case was that  he was  a  Co-sharer Of the holding which  comprised  the  land purchased  by the respondent. The holding was  previously  a Raiyati  Mokarari  interest and it had vested in  the  State under  the provisions of the 1953 Act. The case of  the  re- spon- 530 dent  was  that. though the predecessor-in-interest  of  the appellant  and  her  vendor were the joint  holders  of  the property in question. the right of pre-emption available  to the  co-sharer had ceased with the coming into force of  the 1953  Act. The pre-emption. application was allowed  by  the learned  Munsif and his order was confirmed by  the  learned Additional  District  Judge. The respondent moved  the  High Court in revision. The matter came up for hearing before the two  learned Judges of the Calcutta High Court who  referred the  matter  to  the Full Bench. The  question.  as  already stated. was answered by the Full Bench in the negative  with the  result that the application for preemption  stood  dis- missed. Hence the appeal before us.     The other appeals before us also involve the same  point but  there  are  some difference. We shall  refer  to  these aspects later, to the extent necessary.     The  question raised lies within a very narrow  compass. The  relevant statutory provisions may first be set out.  As already mentioned, the Tenancy Act provides, in section  26- F.  that except in the case of a transfer to a co-sharer  in the  tenancy whose existing interest has  accrued  otherwise than by purchase, one or more cosharer tenants of the  hold- ing,  a portion or share of which is transferred. may  apply to the Court for the said portion or share to be transferred to  himself of themselves. In other words, the section  con- ferred,  On  a co-sharer tenant of an occupancy  holding,  a right  to compel another co-sharer tenant to sell his  share in  the  holding to him instead of to a stranger.  The  term "co-sharer"  envisages  that the holding must be  under  the ownership  of more than one person. The holding must  be  an OCCupanCy holding: that is. it must be the holding of  raiy- ats  having occupancy rights. So long as a division  of  the holding does not take place in accordance with section 88 of the  Tenancy  Act. the holding remains a joint  holding  and each  co-sharer  will  be entitled to pre-empt  in  case  of transfer of a share or portion of the holding by a co-sharer to a stranger.     The  1953 Act came into force on February 12, 1954.  Sub section (1) of section 4 of the Act provides that the  State Government  may  from time to time by  notification  declare that  with effect from the dale mentioned in  the  notifica- tion.  all estates and the rights of every  intermediary  in each  such estate situate in any district or part of a  dis-

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trict specified in the notification shall vest in the  State free  from  all incumbrances. Pursuant to  section  4(1),  a notification  was  published, which prescribed the  date  of vesting as 15th April. 1955. The term 531 "intermediary" was defined in the Act to mean "a proprietor, tenureholder. under tenure-holder or any other  intermediary above  a  raiyat  or a non-agricultural tenant’  ’.  Thus  a raiyat  was not an intermediary. However, Chapter VI of  the Act  contains  provisions for acquisition  of  interests  of raiyats and under-raiyats. Under section 49, the  provisions of  Chapter VI were to come into force on such date  and  in such district or part of a district as the State  Government may,  by notification in the Official gazette, appoint.  The notification  under section 49 was published on  9th  April, 1956, by which Chapter VI was brought into force in all  the districts  of West Bengal with effect from April  10,  1956. The effect of such a notification was that the provisions of the  earlier  Chapters of the Act became  operative  mutatis mundandis  "to raiyats and under raiyats as if such  raiyats and  under raiyats were intermediaries and the land held  by them were estates and a person holding under a raiyat or  an under  raiyat were a raiyat for the purpose of  clauses  (c) and  (d)  of  section 5." Notifications  were  issued  under section  4 by the State Government as a result of which  the interests  of raiyats and under raiyats vested in the  State with effect from April 14, 1956.     As already mentioned, the effect of 1953 Act was to vest the  rights  of intermediaries (an  expression  subsequently extended  to cover raiyats and under raiyats) in  the  State Government. However, section 6 confers certain rights on the intermediaries  to retain certain lands. The  relevant  por- tions  of section 6 can be extracted for purpose of  conven- ient reference. "6.  Right  of  intermediary to retain  certain  lands.  (1) Notwithstanding  anything contained in sections 4 and 5,  an intermediary  shall,  except in the cases mentioned  in  the proviso  to sub-section (2) but subject to the other  provi- sions of that sub-section, be entitled to retain with effect from the date of vesting-- (a) land comprised in homesteads; (b)  land  comprised  in or appertaining  to  buildings  and structures, owned by the intermediary or by any person,  not being a tenant, holding under him by leave or licence. XXX                  XXX               XXX (c) non-agricultural land in his khas possession,  including land held under him by any person not being a tenant, by 532 leave  or licence, not exceeding fifteen acres in area,  and excluding any land retained under clause (a); Provided that the total area of land retained by an interme- diary  under  clauses (a) and (c) shall  not  exceed  twenty acres, as may be chosen by him: Provided further that if the land retained by an  intermedi- ary under clause (c) or any part thereof is not utilised for a period of five consecutive years from the date of vesting, for  a gainful or productive purpose, the land or  the  part thereof  may be resumed by the State Government  subject  to payment  of compensation determined in accordance  with  the principles laid down in section 23 and 24 of the Land Acqui- sition Act, 1894 (Act I of 1894); (d)  agricultural land in his khas possession not  exceeding twenty five acres in area. as may be chosen by him; Provided that in such portions of the district of Darjeeling as  may be declared by notification by the State  Government

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to  be hilly portions, an intermediary shall be entitled  to retain all agricultural land in his khas possession, or  any part thereof as may be chosen by him." In  other  words.  broadly speaking,  the  intermediary  was allowed  to  retain  agricultural land upto  the  extent  of twenty five acres and nonagricultural land to the extent  of fifteen acres, leaving out the special provisions in respect of homesteads, lands on which buildings are put up and lands in the hilly areas of Darjeeling. Section 52 while  applying these provisions to raiyats and under raiyats, states: "Provided  that  where raiyat or an  under  raiyat  retains. under  section 6 read with this section. any land  comprised in a holding, then notwithstanding anything to the  contrary contained in sub section (2) of section 6, he shall pay : (a) in cases where he was paying rent for the land comprised in  the holding and held by him immediately before the  date of  vesting  (hereafter in this proviso referred to  as  the holding lands),-- (i) if he retains all the holding lands, the same rent as he 533 was paying therefore immediately before the date of vesting, and (ii)  if the land retained by him forms part of the  holding lands,  such rent as bears the same proportion to  the  rent which he was paying for the holding lands immediately before the date of vesting as the area of the land retained by  him bears to the area of all the holding lands; (b)  in  cases where he was liable to pay rent but  was  not paying any rent for the holding lands immediately before the date  of vesting on the ground that the rent payable by  him therefore  was not assessed, such rent as may  be  assessed, mutatis  mutandis,  in  accordance with  the  provisions  of section 42; (c) in cases where he was liable to pay rent wholly in  kind or  partly in kind and partly in cash, then  notwithstanding anything contained in clause (c) of section 5, such rent  as may be assessed in accordance with the provisions of section 40, and (d) in cases where he was liable immediately before the date of vesting to pay for the holding lands a variable cash rent periodically assessed, such rent as may be assessed, mutatis mutandis in accordance with the provisions of section 42."     By  a notification dated 28.5. 1984, the  Government  of West  Bengal  framed rules called the  West  Bengal  Estates Acquisition  Rules.  1954 (hereinafter referred to  as  ’the rules’). Rule 4 originally provided that: "every  intermediary who retains possession of any  land  by virtue  of the provisions of sub section (1) of  section  6, shall,  subject to the provisions of the Act, be  deemed  to hold such land from the date of vesting-- (a) If it is agricultural land, on the same terms and condi- tions  as an occupancy raiyat under the Bengal Tenancy  Act, 1885; (b) If it is non-agricultural land on the same terms and 534 conditions as a tenant under the West Bengal Non-agricultur- al Tenancy Act, 1949, holding non-agricultural land for  not less than 12 years without any lease in writing." The following rule 4 was substituted for the above rule by a notification dated 7th September, 1962: "4.  Any land retained by an intermediary under  the  provi- sions of sub section (1) of section 6 shall, subject to  the provisions of the Act be held by him from the date of  vest- ing on the terms and conditions specified below: XXX                         XXX                        XXX

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(3)  if  the land held by the intermediary  be  agricultural land, then-- (1)  he  shall hold it, mutatis mutandis, on the  terms  and conditions  mentioned  in sections 23, 23A,  clause  (a)  of section 25, sections 26 to 26G  ......  " The rule was again amended by a notification dated August 1, 1964  by  which, for the words and figures "Sections  26  to 26G,  52  to  55", the words "sections 26,  26B,  26C,  26G, sections  52  to 55" were substituted. In other  words,  the original rule 4 merely provided that in the case of agricul- tural land retained by the intermediary, he shall hold it on the  same terms and conditions as an occupancy raiyat  under the  Tenancy  Act leaving it undefined as to  whether  these terms  and conditions would also include the right  of  pre- emption  available  under  the Act. The  amendment  of  1962 specifically  included  the right  of  preemption  available under  section  26-F but the reference to section  26-F  was omitted by the amendment of 1964.     The  provisions  of  these various  enactments  and  the availability of the right of pre-emption to the former joint tenants  of the holding came up for consideration  before  a number  of  Benches of the Calcutta High Court.  It  is  not necessary  to refer to the details of these decisions  inas- much as the matter has been considered at length by the Full Bench. The arguments addressed in support of the survival of the  right of pre-emption despite these legislative  changes were broadly these: (i)  The  1953 Act, after Chapter VI came  into  force  only vested  the holding of the raiyats and under raiyat  in  the State. The word 535 ’intermediary’  in  S. 6’ includes  the  plural--’intermedi- aries’.  Hence, the previous co-sharers continue to  be  co- sharers;  only instead of being tenants under an  intermedi- ary, they become tenants under the State. The vesting is  of the holding as a whole; its integrity is not impaired. (ii) The Act, the rules and the forms prescribed  thereunder provide for the partition, demarcation, separate  determina- tion of the rents for the lands so partitioned and demarcat- ed  and  consequent modification of the  record  of  rights; until  all this is done, the holding remains single and  the erstwhile co-sharers continue to be such. (iii)  Rule  4(3),  as it originally  stood,  preserved  the rights  of  tenants to co-sharers. The 1962  amendment  made this  clear. The 1964 deletion of the reference to  S.  26-F was  not with a view to take away the right  of  pre-emption under S. 26-F. It was only consequential to the enactment of the 1955 Act, S. 8 of which provided for a pre-emption right corresponding to S. 26-F of the Tenancy Act. The  Full Bench, however, repelled the contentions and  held that the right of pre-emption did not survive.  Its  reasons may be summarised thus:     (1)  By virtue of section 52, read with section 6,  each raiyat  becomes a direct tenant under the State with  effect from the date of vesting in respect of the land which he  is entitled to retain. The proviso to the section provides  for the  apportionment  of the rent among  the  various  holders making  it  clear that the land retained by a  raiyat  of  a holding becomes the subject matter of a separate tenancy. It was, therefore, no longer possible to call them  co-sharers. Each  became  entitled to a direct tenancy in respect  of  a share  of the previous holding and, in regard to his  inter- est,  the previous holders had no manner of right or  title. One raiyat could not claim to have any interest in the  land comprising  the  holding which the others  are  entitled  to

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retain or have retained. Before vesting, each of the raiyats of  a holding had an interest or share in every part of  the land  comprised in the holding and each was a  co-sharer  of the  other, but this is not the position after  the  vesting when  each  of the raiyats of the holding becomes  a  direct tenant under the State in respect of the land of the holding which  he is entitled to retain under the provisions of  sub section ( 1 ) of section 6. 536     (2) The expression "an intermediary" in sub section (1), (2)  and  (5) of section 6 cannot be read as  including  the plural. If the word "intermediaries" was substituted in  the place  of "an intermediary" in sub-section (1) of section  6 the  result  will be that all the  intermediaries  would  be jointly  entitled  to retain only 25 acres  of  agricultural land  in  his khas possession whereas clause  (d)  envisages that  each  intermediary is entitled to retain 25  acres  of agricultural land in his khas possession and to exercise his choice  of  retention of land within such time and  in  such manner as may be prescribed. The forms prescribed under  the schedule in this connection and the foot-notes thereto  make it clear beyond all doubt that each intermediary separately, and  not  the intermediaries jointly, could  exercise  their choice  of  retention. This was clear  from  clauses  (iii), (iv),  (v) and (vi) of the foot-notes appended to the  form. This Was also the only reasonable interpretation for differ- ent  co-sharers of a holding may have other lands  in  their possession  and unless the right of choice and the  computa- tion  of 25 acres is separately read into the provisions  it would be impossible to work the same.     (3) While it is true that on the vesting no partition of any holding is effected and the various records are also not immediately  corrected, the definition of ’holding’  in  the Tenancy  Act clearly shows that an undivided share  in  land can  be  the subject matter of a separate  tenancy  and  can constitute  a holding of a raiyat or a under raiyat.  There- fore, though the land remains undivided till it is demarcat- ed by metes and bounds there is nothing wrong in saying that the undivided share for a raiyat becomes the subject  matter of  a separate tenancy directly under the State as from  the date  of vesting. Merely because the finally  published  re- cord-of-rights  has not been drawn up under section 47  read with rule 31A, it cannot be said that the holding  continues to be a joint holding or that the raiyats continue to be the co-sharers of each other.     (4)  It  is true that the expression "terms  and  condi- tions"  in  rule 4 includes the right of  pre-emption  under section  26-F  and section 26-F has also  been  specifically included within the meaning of Rule 4(3) as amended in 1962. However,  the exercise of a right of pre-emption under  sec- tion 26-F is conditional on the person claiming to  exercise the  right  being a co-sharer of the holding  a  portion  or share of which has been transferred to outsider. In view  of the conclusion that the individual co-sharers of the holding cease  to be co-sharers after the vesting, there will be  no scope for any application under section 26-F. This, however, does not mean that rule 4(3) as amended in section 537 26-F  is  redundant. It may be that on the date  of  vesting there  may be no co-sharer in a raiyati holding. But,  where after the date of vesting, the individual holder dies and  a number  of co-sharers come into being by devolution  of  his interest, the provisions of section 26-F read with rule 4(3) will come into play. Similarly, if subsequent to the date of vesting, one of the erstwhile co-sharers transfers a portion

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of  his holding to another, that person becomes a  co-sharer of  the holding along with his vendor. If one of  these  two co-sharers  transfers  a portion of the holding  to  another person, section 26-F will apply. Thus S. 26-F has a part  to play  even in the new scheme of things and is  not  rendered otiose or redundant by the findings given earlier.     (5)  It is true that sub-rule (3) of rule 4 was  further amended  on  1st  August, 1964, deleting  the  reference  to section  26-F in that sub rule. This deletion, however,  did not  mean that the right of preemption has been taken  away. This  amendment  took  place because the  West  Bengal  Land Reforms  Act,  1955, by section 8 created a  right  of  pre- emption  similar to the one conferred by section 26-F.  This section  came  into force on 22nd October,  1963.  Initially there were some differences between section 26-F and section 8  of  the West Bengal Land Reforms Act in that,  under  the former,  the application had to be made to the Court  while, under  the later, it had to be made to the Revenue  Officer. After the enforcement of section 8 it became wholly unneces- sary to allow section 26-F to remain in sub rule (3) of rule 4.  It took some time for this amendment to be given  effect to.  Section 8 will apply regarding transfers  taking  place after the enforcement of section 8.     We have heard arguments on behalf of several counsel  in respect  of the points at issue in these appeals.  The  Full Bench judgment of the Calcutta High Court has discussed  all the  various aspects and it has come to the  conclusion  for the reasons summarised above, and elaborated by it, that the right of pre-emption could not survive the 1953 Act. Counsel have  been  unable to persuade us to take a  view  different from that of the Full Bench. We, therefore, express complete concurrence with the views of the Full Bench.     We would also like to point out that the decision of the Full  Bench  has been in force in the State of  West  Bengal since  1972.  Interests in land must have  been  transferred during the past eighteen years on the basis that the princi- ples  of  the Full Bench decision would apply. So,  even  if there  were any force in the contention urged on  behalf  of the appellants--and as we have already pointed out, no 538 grounds have been urged before us strong enough to  persuade us  to differ from the Full Bench--we would have  been  very reluctant to alter the legal position as settled for a  very long time in the State of West Bengal by the decision of the High Court. By this observation we should not be  understood to have expressed any reservations on our part in  accepting the  Full  Bench  decision as correct. On  the  other  hand, having  considered the pros and cons urged before us,  which had  also been urged before the High Court, we are  in  full agreement  with  the  Full Bench  decision.  We,  therefore, affirm the judgment of the Full Bench.     In the light of the above discussion, we may now consid- er the several appeals before us:     (1)  C.A. 626/75 is a direct appeal from the Full  Bench judgment. It stands dismissed.     Sri  Ghosh,  for the respondents, also  urged  that  the application  for  pre-emption in the present case  was  made u/s.  26-F of the Tenancy Act which had ceased to be  effec- tive after 1964 amendment and hence should have been reject- ed. He also contended that S. 26-F could be availed of  only in  respect  of  an occupancy raiyat  whereas  the  interest transferred  in the present case was a "mokarari"  interest. These  points do not appear to have been raised in the  High Court.   Anyhow, it is unnecessary to go into these  conten- tions as we have held, even otherwise, that the  application

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for pre-emption is not maintainable.     (2)  C.A. 291 of 1976--A11 the Courts have  concurrently applied  the  Full Bench decision.  The  appeal,  therefore, fails and is dismissed.     (3)  C.A. 2449/80--1n this matter, the land in  question is  nonagricultural land. The High Court held that the  Full Bench  decision relates only to agricultural lands and  that the interests of non-agricultural tenants remains unaffected by the 1955 Act. This point requires a little consideration.     So  far as non-agricultural tenancies are  concerned,  a right of pre-emption among co-sharers was conferred by S. 24 of  the West Bengal Non-agricultural Tenancy Act,  1949.  We have earlier seen that the 1953 Act originally provided  for vesting  only  of the interest of  ’intermediaries’  in  the State  and the definition of ’intermediary’ took in  only  a holder  above  ’a  raiyat or under-raiyats’  in  respect  of agricultural land and above ’a non-agricultural tenant’. The rights of 539 ’raiyats and under-raiyats’ were brought within the  purview of  the vesting provisions when Chapter VI of the  1953  Act was brought into force; but there is no statutory  provision that brings non-agricultural tenants within the scope of the vesting provisions. This has been pointed out by this  Court in  Shibasankar v. Prabartak Sangha, [1967] 2 SCR 558 at  p. 563 which has been followed in a number of decisions of  the Calcutta High Court and applied, after the Full Bench  deci- sion, in Sastidas Mullick v. J.L.R.O. Parrackpore Circle and Ors.,  [1977] 1 CLJ 695 at p. 701 by a Bench  comprising  of Sabyasachi Mukharji and M.M Dutt. JJ. The High Court, in our view, was right in making the distinction and upholding  the right  of pre-emption in this case. The  appeal.  therefore. fails and is dismissed.     (4) C.A. 825/81--This is a case for claim of pre-emption under S. 8 of the 1955 Act. It is necessary to set out a few facts.  The lands in R.S. Khatian No. 331 belonged  to  four brothers  Jadhunath,  Madhusudan. Siddeshwar  and  Maniklal. Later,  Madhusudhan  died and his interest devolved  on  his father  Ashutosh and his brother Mukti.  Siborani  purchased plot Nos. 1947, 2199 and 363 in this khatian by a registered deed  dated 28/5/68 from the holders. The second  petitioner purchased  plot no. 2169 in the khatian on 19.5.69 from  the holders.  The  respondent Shravani Ghosh is a  stranger  who purchased  the disputed property from  Jadhunath,  Siddeswar and  Maniklal by a deed dated 4.5.71. Subsequently,  a  deed dated  21.6.71  was executed in her favour by  Maniklal  and Ashutosh  purportedly  to rectify a defect  in  the  earlier deed.  Thereupon,  the purchasers under the  earlier  deeds, Siborani and another claimed a right of pre-emption under S. 8 of the 1955 Act. The application was allowed by the Munsif and  the District Judge but disallowed, on revision, by  the High Court.     Learned  counsel  for the appellant contended  that  the present  case  ’fell within the exceptions outlined  in  the Full  Bench case, under which the right of pre-emption  sur- vives.  He  relied, in support of this  contention,  on  sub paras  (2)  and (3) in the following passage from  the  Full Bench  judgment, where the High Court summed up its  conclu- sions: "28. For the reasons aforesaid, we hold as follows--          (1) After the enforcement of Chapter VI of the  Act and the vesting of interest of raiyats and under-raiyats  on and  from  April 14, 1956 corresponding to Baisakh  1,  1363 B.S. the co-sharer raiyats of a holding ceased to be coshar- ers and each raiyat of the holding became a direct

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540 tenant under the State in respect of the land of that  hold- ing which he is entitled to retain under sub-section (1)  of S.  6. As the co-sharer raiyats ceased to be  co-sharers  on and from the date of vesting the question of exercise of the right  of pre-emption under S. 26-F cannot arise,  for,  the condition  precedent  to the exercise of the right  of  pre- emption under Section 26-F being that the person  exercising that  right  must be a co-sharer of the  person  making  the transfer. (2)  When  a  raiyat having a separate  holding  or  tenancy created by virtue of sub-section (2) of S. 6 relating to the land  retained  by  him under sub-section(1) of  S.  6  dies leaving  more  than  one heir, such heirs  will  become  co- sharers of such holding and will be entitled to the right of preemption under Section 26-F. Similarly, when the raiyat of such a holding transfers a portion of the holding to another person,  that person will become a co-sharer of  the  raiyat and the right of pre-emption will also be available in  such a case. (3) A transfer made by a co-sharer raiyat as contemplated by CI.  (2)  above before the enforcement of Section 8  of  the West  Bengal  Land Reforms Act, 1955, may be  pre-empted  by another co-sharer in the tenancy in accordance with  Section 26-F,  but a transfer made after the enforcement of  Section 8,  the  right  of pre-emption by a co-sharer  can  only  be exercised  in the manner laid down in Section 8 of the  West Bengal Land Reforms Act. (4)  The under-raiyats have been elevated to the  status  of raiyats  on the enforcement of Chapter VI. There is no  dif- ference  between the position of raiyats and that of  under- raiyats and our decision on the question as to the effect of the enforcement of Chapter VI on the right of pre-emption of raiyats will also apply to under-raiyats. (5) The decisions in 68 Cal. W.N. 574 (A.I.R. 1964 Cal. 460) and  Jyotish Chandra Das v. Dhananiay Bag., [1964]  68  Cal. W.N.  1055 in so far as they proceeded on the  footing  that the  raiyats  of a holding continued to be  co-sharers  even after vesting, are erroneous but they have correctly  inter- preted the expression ’terms and conditions’ in Rule 4." 541 Learned  counsel  for the respondents, on  the  other  hand, contended  that, while the first instance given in  sub-para (2)  above  by  the Full Bench may be  correct,  the  second instance  and its follow-up in subpara (3) are not  correct. He  pointed  out  that once each co-sharer  in  the  earlier holding  is  held to become an independent  tenant  directly under the State, any alienee from him acquires his  interest pro  tanto and cannot become his co-sharer.  His  submission was that the Full Bench has erred in considering them to  be co-sharers. It is not necessary to express any views on this contention  as, in our opinion, the above  observations  are not applicable on the facts found in the present case.  Here the  "co-owners"  of the former R.S. Khatian 313  have  sold identifiable  plots under different sale deeds to  different parties. In this state of affairs, the transferees under the 1968  and  1969 deeds have acquired  title  to  identifiable plots  and are not co-sharers in the  original  transferors. There  is  no  question of  their  claiming  pre-emption  as against  the  transferees under the  1971  documents  merely because  all the plots at one time formed part of one  inte- gral  holding. We are, therefore, of opinion that  the  High Court  was correct in holding that no right  of  pre-emption could  be exercised by the petitioners. This appeal,  there- fore, fails and stands dismissed.

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   (5)  C.A.  2231/82--This appeal has to be  dismissed  in view  of  our order upholding the Full  Bench  decision.  We direct accordingly.     (6)  S.L.P.  (Civil)  1037/74--1n this  case,  the  High Court,  following  the Full Bench decision,  held  that  the petitioner was not entitled to claim pre-emption. The  peti- tion has, therefore, to be dismissed. We order accordingly.     (7)  S.L.P. (Civil) 1577/74--The High Court disposed  of this matter by following the Full Bench decision. The  deci- sion is affirmed and this petition dismissed.     (8)  S.L.P.  (Civil) 9882/80--Since the High  Court  has only  followed the Full Bench decision, there are no  merits in this appeal which is dismissed.     All  the appeals and SLPs, therefore, fail and are  dis- missed.  But  in the circumstances we make no  order  as  to costs. R.S.S.                      Appeals and SLPs dismissed. 542