1. This Revisional application is directed against an appellate order passed by the Subordinate Judge, Additional Court, Jessore who has disallowed the claim for pre-emption by the petitioners which the learned Munsif, 3rd Court, Jessore had granted.
2. The facts of the case are simple. The petitioners were Korfa tenants with regard to 14 acres of land appertaining to C. S. Plot No. 6566 of Mouza Japa, recorded in C. S. Khatian No. 2047. The original tenant in occupancy right was one Kasim Sarder who leased out 14 acres of land appertaining to the said plot to one Penchu Sarder and predecessor-in-interest of opposite-parties Nos. 5 to 11. The opposite-parties 5 to 8 are alleged to have sold '07 acre of land of the leased out land to Opposite- --Parties 1 to 4 who are admittedly strangers to the Jama. The petitioners who are heirs of the said Panchu Sardar have filed an application for pre-emption which was allowed but was set aside on appeal as stated above.
3. The sale took place on 6-7-63. Chapter V of the East Bengal State Acquisition and Tenancy Act came into force in the district of Jessore on and from 1-8-63. The application for pro-emption was presented on I1-11-63. The learned Munsif accepted the position that section 26-F of the Bengal Tenancy Act was not applicable but the application under section 96 of the East Bengal State Acquisition and Tenancy Act was maintainable in accordance with the ruling in the case of Huzzat A.I v. Imamuddin Bepari (13 D L R 819).
4. The learned Subordinate Judge on appeal, however, held that on the statement of the facts it appeared that the tenancy of the applicants and transferor co-sharers was a Korfa and he held that as the sale in question was effected on 6-7-63 prior to coming into operation of section 96 of the E. B. S. A. And Tenancy Act in that district, the provision of section 96 of the said Acquisition Act was not applicable. He further held that as section 26-F of the Bengal Tenancy Act was not available to Korfa tenants there was no right for the applicants for pre-emption and accordingly dismissed the application. The Rule has been obtained against the said decision of the learned Subordinate Judge.
5. It appears that the relevant decision of this Court was not available to the Court below while dealing with this case. In the case of Abdul Malek v. Abdur Rahman, a Civil Revision Case No. 80 of 1965, I held that the right of pre-emption vested under section 26-F of the Bengal Tenancy Act if the sale in question had taken place prior to the coming into operation of Part V of the East Bengal State Acquisition and Tenancy Act. I have held in that judgment as follows :- "Therefore, in my opinion, the procedure prescribed under the Bengal Tenancy Act will have to be applied in exercising a right of pre-emption under section 26-F of the said Act even if the application is filed after the coming into operation of Part V of the East Bengal State Acquisition and Tenancy Act."
6. I had given my reasons in the said judgment while coming to the said conclusion which was different from the decision of my learned brother Mr. Justice Sattar as reported in 13 D L R 819 and as such I submitted the case to be placed before the Bench constituted by Mr. Justice Salahuddin Ahmed and Mr. Justice Sayem who by their judgment dated 15-8-66 upheld my decision. In the circumstances, it is clear now that the sale having taken place on 6-7-63 prior to the coming into operation of part V of the East Bengal State Acquisition and Tenancy Act in the district of Jessore (which came into operation on 1-8-63) the provisions of section 26-F of the B. T. Act would apply to the facts of the case ; but then the question is whether section 26-F would be available to the applicants in this case as the tenancy was admittedly Korfa tenancy.
7. Mr. Mahbubur Rahman, learned Advocate for the petitioners has referred to the case of Mubashir A.I alias Md. Mubasher A.I v. Md. Kokbul Hossain and others in the Civil Revision Case No. 1215 of 1962 which again was a decision on reference by a Single Judge. The decision was given by the Division Bench comprising Mr. Justice Sattar and Mr. Justice Sayem who have categorically held in the said decision that after the promulgation of the omnibus notice under section 3 on 2-4-56 the rent- receiving interest all over the province was vested in the Government with effect from 14-4-1956 and as such there will be no question of any sub-tenancy after the said date, namely, 14th April 1956 and in that view the Division Bench allowed the pre-emption with regard to a tenancy which was originally a Korfa.
8. I respectfully follow the decision of the said Division Bench and hold that the right of pre-emption was available to the applicants in this case also although the tenancy which had originally been created in 1934 had been a korfa tenancy.
9. There will be no order as to costs.