HOSSAIN ALI Vs. KALA CHAND GHOSE

JUDGEMENT

(1.) The petitioners in this ease claiming to be cosharer tenants of an occupancy holding applied for pre-emption under Section 26F, Ben. Ten. Act, in respect of certain portions or shares of the holding alleged to have been transferred by opposite parties 2 and 3 to opposite party 1. The application was resisted by opposite party 1 mainly on two grounds. It was contended, in the first place, that the petitioners had no interest in the holding, which originally belonged to one Misrabali and his brother Jumarali, and subsequently on an amicable partition between the brothers, came to belong exclusively to Misrabali, inasmuch as the petitioners were not the heirs of Misrabali at all, in particular petitioner No. 1 was not a son of Misrabali. Secondly, it was alleged that the opposite party 1 had already acquired the entire holding from Misrabali and the heirs of Jumarali by two conveyances, Exs. A2 and A3, the first of which was executed by Misrabali in 1921 and the other by the heirs of Jumarali in 1939.

(2.) The learned Munsif before whom the application was filed allowed it, overruling the objection of the opposite party that the petitioners were not the heirs of Misrabali. As regards the other objection that opposite party 1 had already acquired title to the holding by prior purchase, the learned Munsif held that this wa3 a question whioh could not be gone into. An appeal was taken against-the learned Munsif's order by opposite party 1. The lower appellate Court found that the petitioners were the heirs of Misrabali, but directed a remand to the learned Munsif in order that the question which he had left undecided should be decided. On remand the learned Munsif, however, declined to go into that question, relying on certain decisions of this Court, namely the decision of Henderson J. in Nibaran Chandra Bhattacharjee V/s. Hem Nalini Debi , and that of M.C. Ghose J. in Jogendra Nath Chowdhury V/s. Golam Samdani ( 37) 65 C.L.J. 472, and re-affirmed his previous order. There was a further appeal against this decision to the learned District Judge. The appellate Court found it necessary to make another remand. The matter again came back before the learned Munsif, where the same points were re-argued. This time the Court carried out the directions contained in the order of remand. Upon the evidence the learned Munsif found that the earlier conveyances on which the opposite party 1 relied in support of his title had never been acted upon, and that the two transfers on the basis of which the petitioners claimed to pre-empt were valid and operative. In that view, it was held that the petitioners were entitled to pre-empt. On appeal that judgment hag been now reversed. The learned Additional District Judge has set aside the finding of the learned Murfif regarding the previous hobalas, Exs. A2 and A3. Upon the evidence his conclusion is that these were bona fide transactions, as a result of which opposite party 1 had acquired title to the entire holding, so that there was no interest left in Misrabali which could devolve upon his death on opposite parties 2 and 3 or on the petitioners who were joint heirs with them. In the result the order of the learned Munsif has been set aside and the application for pre-emption dismissed with coats. It is against this judgment that the present rule has been obtained.

(3.) The main contentions of Mr. Bhagirath Chandra Das on behalf of the petitioners have been two-fold. In the first place, he maintained that in a proceeding under Section 26F, Ben Ten. Act, it was not open to the Court to go into questions of title. So long as the factum of the transfers in respect of which the application for pre-emption was made was not in dispute, the Court was bound to allow the application, provided the deposits and other formalities required by the section were complied with by the applicant for pre-emption. In support of this argument, reliance was placed on the two decisions reported in Calcutta Law Journal to which reference has already been made, as also on another judgment of Henderson J. in Sindhuram Panja V/s. Ambicacharan Santra ( 41) 45 C.W.N. 658. It was pointed out that all that would follow from allowing an application under Section 26F would be to vest in the applicant such title as the transferring cosharer tenants had purported to transfer. If the transferring cosharer tenants had no subsisting title at the date of the transfer, nothing could possibly pass to the applicant for pre-emption. As was pointed out by Henderson J. in Nibaran Chandra Bhattacharjee V/s. Hem Nalini Debi any right which the transferor might have in the property would remain entirely unaffected and it was only the right, title and interest of the transferee which would pass. From that point of view, it was argued that no prejudice could possibly arise to any party from allowing the application. The question of title, if any, acquired by opposite party No. 1 under the previous conveyances would remain open and could be raised by him in any subsequent proceeding. If, as a matter of fact, opposite party No. 1 had acquired title under those conveyances and were also in possession of the holding as alleged by him since the date of his purchase, then, though under Sub-section 8 of Section 26F, on the granting of the application for pre-emption, he would be deemed to be a raiyat ejected from his holding by proceedings for his ejectment he might still refuse to vacate, and if he did not vacate, the pre-emptor would necessarily have to sue him for possession, and in such a suit the question of title could well be raised.