NISHIKANTA DAS Vs. JNANENDRA NATH MONDAL

JUDGEMENT

(1.) This Rule is directed against an appellate order, dated 22-9-1951, upholding an order made by a learned Munsif in a proceeding under Section 26F, Bengal Tenancy Act.

(2.) The material facts are as follows. On 19-7-1949, the petitioner sold .49 decimals of land to one Bhudeb, but the kobala was made out in the names of the sons of the transferee. This kobala was registered on the same day. On May 15, 1950 the property was resold by the transferee to the petitioner. On 22-5-1950, opposite party No. 1 made an application for pre-emption under Section 26F, Bengal Tenancy Act.

(3.) The objection taken on behalf of the petitioner appears to have been that although the transaction between him and Bhudeb had been given the form of a sale, it was really a mortgage; but the appearance of a sale had been given because Bhudeb was not a registered money lender and consequently he could not represent himself as a lender of money on interest, it was further contended that, in any event, since possession of the property had never been parted with and the title had been reconveyed, no application for pre-emption could lie after such reconveyance had taken place. The trial court overruled these objections, relying mainly on a decision of myself in --'Tarapada Karati v. Sudhamoy Dolui', 53 Cal WN 678 (A).