APARNATH MUKHERJEE Vs. KANAI LAL CHATTERJEE

JUDGEMENT

(1.) THIS appeal is by the plaintiff against a decision of out learned brother Sen J. The only question which has been canvassed before us on behalf of the appellant is a question of re judicata. The facts which bear on this question may be briefly stated as follows: Ramdhan, Panubala and Hiran Bala were co -sharer tenants of a holding, the share of Ramdhan being 8 annas and those of Panu and Hiran Bala 4 as. each. In March 1940 Ramdhan sold his 8 annas share to the plaintiff stating that the holding which was sold was an occupancy holding. The other co -sharers Panu Bala and Hiran Bala thereupon made an application for preemption under Section 26F, Bengal Tenancy Act as amended in 1938 (hereinafter called the Act). The plaintiff who was the opposite party in the pre -emption proceedings disputed the claim of the pre -emptors inter alia on the ground that the holding in question was a mokrari mourashi holding and that pre -emption under Section 26F, Bengal Tenancy Act could not be allowed. The learned Munsif held that the holding in question was an occupancy holding and on this finding made an order under Section 26P of the Act. The plaintiff who was the opposite party in those proceedings unsuccessfully filed an appeal before the lower appellate Court. Thereafter on 12th September 1941 the plaintiff raised the present suit for a declaration that he had a right to the tenancy as a mokrari mourashi raiyat to the extent of 8 annas share and for a permanent in. junction restraining the defendant from taking possession on the ground that the decision in Misc. Appeal No. 12 of the 1st Court, Subordinate Judge, Hoogbly, was erroneous.

(2.) ONE of the defences taken to this suit was that the question whether the plaintiff was a mokrari mourashi tenant or an occupancy raiyat was concluded by the decision in the pre -emption proceedings. Both the Courts below eoncurred in holding that the status of the plaintiff was that of a mokrari mourashi raiyat and that the decision in the pre -emption proceedings did not operate as a bar to the re. agitation of this question and on these findings gave the plaintiff, a decree. On appeal to this Court Sen J. took a contrary view and held that the question of the status of the plaintiff was decided in the pre emption proceedings and that this decision operated as res judicata. The appeal was accordingly allowed by the learned Judge. It is against this decision that the present appeal has been taken.

(3.) THE proceedings under Section 26F of the Act start on an application and not by a suit. The procedure to be followed in such cases is by force of Section 143 (2) of the Act, not regulated by the Code of Civil Procedure but is subject to any rules which may be passed by this Court under Section 143 (1) of the Act.