NUR MOHAMMAD Vs. SERAJ

JUDGEMENT

(1.) Three brothers Kalu, Chand and Tufani were the admitted original owners in equal shares of an occupancy raiyati holding comprising 10 decimals roughly six cottahs of land of c. s. plot No. 1109 of mouza Jagadishpur.

(2.) According to the plaintiffs, Kalu orally sold his share to Tufani some twenty years back so that Tufani became owner of two-thirds share of the above 10 decimals -- that is, of about four cottahs out of the above area of roughly six cottahs of land. On 16th Chaitra 1352 B.S. Tufani sold his above land roughly four cottahs to defendant 1 Nur Mohammad Shaik for a consideration of Rs. 700/-. Thereupon the plaintiffs who were the heirs of Chand and thus co-sharers of the above holding applied for pre-emption under Section 26 F, Bengal Tenancy Act in respect of defendant 1's said purchase. They duly made the necessary deposit (which I shall hereafter call the pre-emption money) and succeeded in getting an order in their favour. The plaintiffs, however, were unable to obtain possession of a moiety of the above pre-empted land, that is, of about two cottahs, on account of resistance of defendant 2 Sher Mohammed who claimed to have purchased the same from the heirs of Kalu on 1st January 1947. The present suit was accordingly instituted by the plaintiffs on 21st July 1947 for a declaration of their title to the said disputed two cottahs and for recovery of possession of the same. In the alternative the plaintiffs prayed for refund of a moiety of the pre-emption money that is the amount paid by him, to defendant i in the pre-emption proceedings.

(3.) The suit was contested by defendants 1 & 2 & their material defence was that Kalu never sold his land to Tufani so that the latter had only an one-third share in the holding in question and nothing more than this one-third share measuring roughly two cottahs in area had passed to the plaintiffs by virtue of the above pre-emption proceedings and as, admittedly, the plaintiffs had already got possession of this area they were not entitled to any relief in the present suit. In short, the defence on the question of title was that as Tufani had never any title to the suit land no title thereto accrued to defendant 1 from Tufani's transfer in his favour so that the plaintiffs acquired no title to the suit land by virtue of the pre-emption proceedings. On the question of refund the defence contended that as for the "pre-emption money" that is, the money paid in the pre-emption proceedings, the plaintiffs were entitled only to the right, title and interest accruing to the transferee from the transfer pre-empted and as, under the circumstances hereinbefore recited, transferee-defendant 1 got only Tufani's one-third share in the holding in question by the relevant transfer, which one-third share had admittedly been taken possession of by the plaintiffs in the pre-emption proceedings, the latter were not entitled to refund of any portion of the said "pre-emption money". The defendants accordingly prayed for a total dismissal of the plaintiffs' suit.