ABDUL MAJID Vs. ALTAB ALI

JUDGEMENT

(1.) This rule arises with reference to an application for pre-emption which was filed under the provisions of Section 26-F of the amended Bengal Tenancy Act, by a man named Altab Ali, opposite party No. 1. His contention, according to his petition under Section 26-F, Bengal Tenancy Act, was to the effect that he was a cosharer in respect of a certain holding, a share of which he had purchased from a man named Naib Ali on 7 December 1928. He therefore made an application under Section 26-F of the Act on the ground that a portion of the holding in respect of which he was a cosharer had been transferred to Abdul Majid and others in October 1938. The application for preemption was contested by the petitioners in this case on the ground that Altab Ali had no locus standi to make the application. The trial Court decided that Altab Ali was a coaharer and therefore allowed his petition. Abdul Majid and his co. purchasers then appealed to the lower Appellate Court and the learned Subordinate Judge decided the matter on the footing that even if Altab Ali had not been recognized as a tenant by Ms landlord, he was nevertheless entitled to the benefit of Section 26-F, Bengal Tenancy Act, because the purchasers of the portion pf the holding which he sought to pre-empt had no right to question his title. The main contention urged on behalf of the petitioners in this case is that although admittedly Altab Ali purchased his share of the holding before the Bengal Tenancy Act of 1928 came into operation, he was never recognized as a tenant, and he therefore had no locus standi to apply for pre-emption under Section 26-F, Bengal Tenancy Act. In my judgment, the view expressed by the learned Subordinate Judge with regard to the law on this matter is erroneous. It is true that it has been held in Behari Lal V/s. Siudhu Bala Dasi ( 18) 5 A.I.R. 1918 Cal. 561 that in oases of transfer for value title unquestionably passes from the transferor to the transferee even though there is no recognition by the landlord; in other words, a transfer of this description cannot be impeached by the transferor though the landlord may possibly refuse to recognize the transfer.

(2.) At the same time, in connexion with an application under Section 26-F, Ben. Ten. Act, it is incumbent upon the applicant to show that he possesses the requisite status to enable him to file the application. It is therefore necessary for a person who filed an application for pre- emption under this section to show that he is a co-sharer tenant of the holding. Although no one but his landlord may be in a position to dispute his right to retain the land which has been transferred to him, this does not mean that he has acquired the status of a tenant within the meaning of the Bengal Tenancy Act. Under Section 3(17) of the Act it is provided that a tenant means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person.

(3.) A landlord in Section 3(6), Ben. Ten. Act, is defined in the following terms : "Landlord means a person immediately under whom a tenant holds, and includes the Government." It will therefore follow that in the case of a transfer made before the Bengal Tenancy Act of 1928 came into operation the transferee could only become a tenant if he had been recognized by the landlord. In my judgment therefore the learned Subordinate Judge has decided this matter from a wrong standpoint. In the view which he adopted he did not examine the question whether or not Altab Ali had in fact been recognized by the landlord and, consequently whether he had become cosharer tenant within the meaning of Section 26-F, Ben. Ten. Act. Having regard to the matter mentioned above, it is necessary that this case should be remanded to the trial Court for further consideration. The par-ties will be allowed to adduce such further evidence as they consider necessary for the purpose of enabling the learned Munsif to decide whether Altab Ali is a co-sharer tenant within the meaning of Section 26-F, Ben. Ten. Act, and whether he had ever been recognized as a tenant by his landlord. The initial onus will of course lie upon Altab Ali to establish his status as a cosharer tenant on the date of the application before he will be in a position to succeed in a proceeding of this sort. If the parties wish to raise any question other than those mentioned above, it will be open to the learned Munsif to consider their applications to this effect on their merits. Costs will abide the final result. The hearing fee in this Court is assessed at two gold mohurs.