RADHA GOVINDA SAR Vs. SUSHILA DASSI

JUDGEMENT

(1.) The appellant was the plaintiff In a suit for declaration of title & recovery of khas possession. The suit was the sequel to a proceeding under Order 21, Rule 100, Civil P. C. and it arose under the following circumstances:

(2.) The plaintiff along with his brother Dharani Sar, since deceased, and their cousin Gopal Chandra Sar held an occupancy raiyati jama of Rs. 12-5-12 gds. in Mouza Mandar, District Midna-pore. That jama which contained an area of 8.22 acres was recorded in Interests Nos. 80, 60 and 61. Subsequently, however, the jama was partitioned amongst the three co-sharers and on the strength of that partition the plaintiff got his allotted portion of 1.40 acres registered (kharijed) in the landlord's sherista at a separate jama of Rs. 2-10-10 ps. On 5-4-1920, the plaintiff sold a portion (1.06 acres) of this separated jama to defendant No. 7, Bibhuti Sar and the predecessor of defendants Nos. 1 to 4, Satish Chandra Sar by name. On 26-5-1939, defendants Nos. 1 to 4, and defendant, No. 7 sold a portion (1.02 acres) of their said 1.06 acres of land to defendant No. 5, Kartick Sar and the husband or predecessor-in-interest (Bon-behary Sar, since deceased), of defendant No. 6. No notice of this sale was served upon the plaintiff who was admittedly a "cosharer in the tenancy" and a "co-sharer tenant" under Section 26F, Bengal Tenancy Act. The plaintiff, however, on coming to know of the sale applied on 14-9-1944 for preemption under the said section in 'Misc. Case No. 158 of 1944' and took possession of the said lands (1.02 acres) in pursuance of the order of pre-emption made in his favour on 27-6-1945. In the meantime, on 15-4-1943, that is, prior to the plaintiff's application for pre-emption, defendants Nos. 5 and 6 had sold, out of their said 1.02 acres, the suit land comprising .47 acres and recorded in C. S. Dag No. 664 of Interest No. 80 to Gopal Sar and, on 4-8-1946, this sale was pre-empted by defendants Nos. 1 to 4 in Misc. Judicial Case No. 88 of 1944 which had been started earlier than the plaintiff's pre-emption. On the strength of this pre-emption order in their favour, defendants Nos. 1 to 4 dispossessed the plaintiff from the suit land and thereupon the present suit was brought by the plaintiff after an unsuccessful attempt to get back possession under Order 21, Rule 100, Civil P. C.

(3.) In the pre-emption proceeding (Misc. Case No. 158 of 1944), started by the plaintiff, Gopal Sar was not made a party and, although, at one stage, defendants Nos. 1 to 4 were therein implead-ed, they were not so impleaded as pre-emptors of Gopal Sar's purchase, but in their capacities of former owners and, further, their names were eventually struck out and the plaintiff's pre-emption proceeding was continued and brought to a close in the plaintiff's favour in their absence. The defendant's pre-emption case also was only against Gopal Sar and the plaintiff was no party thereto.