BRINDABAN GHOSE Vs. JIBAN CHANDRA

JUDGEMENT

(1.) A question of some nicety is involved in this second appeal. The appellants who are the plaintiffs in the trial Court claimed 16 annas title to the entire suit lands on the strength of an order for pre-emption made in their favour under Section 26F, Bengal Tenancy Act. This claim was allowed in part by the learned Munsif, namely, to the extent of an 8 annas share and the said decision was affirmed on appeal by the learned Subordinate Judge. Hence the present second appeal by the plaintiffs.

(2.) The relevant facts lie within a short compass and they are as follows: The disputed lands formed part of an occupancy raiyati holding. In this holding plaintiff appellant No. 1, Brindabon and his brother Rashbehari and defendants Nos. 1 and 2, Jiban Chandra Haldar and Sudhir Chandra Haldar, were co-sharer tenants. Rashbehari died and thereafter his heirs sold the disputed lands as appertaining to his share to one Makhan Lal Gharami by a registered kobala dated 22-6-1946. In the said kobala only Brindabon was named as the co-sharer tenant and upon receipt of notice of the same Brindabon applied for pre-emption under Section 26F, Bengal Tenancy Act, on the 6-9-1946 and the usual deposit having been made his said application which had been registered as Misc. Judicial Case No. 313 of 1946 was allowed on the 9-11-1946 and he got possession of the disputed lands on 7-12-1946 and from him plaintiffs Nos. 2 and 3 claim to be subsequent settlement holders. No notice of the above sale was, however, served upon the other co-sharer tenants, namely, defendants respondents Jiban and Sudhir, nor were they made parties in or served with notice of Brindabon's pre-emption, proceeding (Misc. Judicial Case No. 313 of 1946), but they on coming to know of the said sale applied, sometime in October, 1946, for pre-emption under Section 26F. Bengal Tenancy Act, giving rise to Misc. Judicial Case No, 317 of 1946 and this claim for pre-emption on the part of the defendants respondents Jiban and Sudhir was allowed on 11-1-1947 and in pursuance of the order made in that proceeding they in their turn are said to have obtained possession on 19-1-1947. In this latter pre-emption proceeding Brindabon was not impleaded nor were plaintiffs Nos. 2 and 3 and, accordingly, they brought the present suit claiming 16 annas title to the entire disputed lands on the strength of Brindabon's pre-emption proceeding (Misc. Judicial Case No. 313 of 1946) and contending that defendants Nos. 1 and 2, Jiban and Sudhir, acquired nothing by the order for pre-emption in their favour in their subsequent pre-emption proceeding.

(3.) What has to be considered, therefore, is the legal consequence of the two pre-emption proceedings. The courts below have agreed in giving effect to both the said proceedings and divided the fruits of pre-emption between the plaintiffs and the defendants Nos. 1 and 2 half and half in view of the fact that each side deposited equal amounts of purchase money and statutory compensation. The courts below have in the above view declared the plaintiffs' title to a moiety of the disputed lands and have granted them necessary consequential reliefs. The propriety of this decision has been assailed before me by the learned Advocate for the appellants on the ground that by reason of Sub-sections 4 (a) and 7 of Section 26F, Bengal Tenancy Act, the defendants' right to pre-empt the suit lands was lost when they failed to join Brindabon's pre-emption proceeding and the order for pre-emption was passed in favour of Brindabon alone with the consequence that the defendants acquired nothing under their own pre-emption proceeding. The argument is no doubt attractive, but it is unsustainable in the ultimate analysis and I am unable to accept the same.