(1.) THIS is a petition under section 115 of the Code of Civil Procedure. The purchasers are the petitioners in a matter relating to pre-emption under section 26f of the Bengal Tenancy Act. The opposite Party No. 1 is the pre-emptor.
(2.) THE factual position on the findings of the courts below is that the purchasers petitioners, the pre-emptor opposite party No. 1 and the vendor amongst others were co-sharers of a holding. It is also clear that the petitioners got their share in the holding by purchase. The Courts below allowed the application for pre-emption. The question that was urged in the courts below was whether the opposite party pre-emptor was a co-sharer of the holding or not. That being the single question, the Courts answered that question in the positive and allowed pre-emption. As I have stated above, on the findings of the Courts below it cannot be challenged in this court that the opposite party No. 1, the pre-emptor, was not a co-sharer of the holding. Therefore, prima facie, it appears that the application should have been allowed.
(3.) IT has been urged in this Court that the opposite party No. 1 may be a co-sharer, but the transfer was to the petitioners and the petitioners became co-sharers by purchase. It is urged that ordinarily there is pre-emption by a co-sharer if there is a transfer, but if the transfer is to a co-sharer, then there is no pre-emption. Again if the transfer is to co-sharers whose existing interest accrued by purchase, even then there would be pre-emption. It was held in the Courts below that the petitioners purchased their share in the holding in 1953. Therefore, they became co-sharers by purchase and the result would be again that there would be pre-emption because the transfer would be to persons whose existing interest was acquired by purchase. If the position rests there, then I have no difficulty in agreeing with the Courts below that the petitioners being co-sharers by purchase, pre-emption would still be available but there is a further difficulty.