BASANTA KUMAR CHURNAKAR Vs. DURGA NATH PAL

JUDGEMENT

(1.) The petitioner in this case, Basanta Kumar Ohurnakar, has applied to this Court in order that two orders passed by the learned Munsif of Tangail dated respectively 13 September 1938 and 22 September, 1938 may be set aside. Under the first of these two orders the learned Munsif expunged the petitioner's name from the proceedings in a pre-emption case instituted by opposite parties 1 to 3 on 4 June 1937. Under the latter order, the learned Munsif allowed the application for pre-emption filed by the aforesaid opposite parties.

(2.) The facts with which we are concerned in respect of the application are briefly as follows: On 12 January 1937, the petitioner executed a document which purports to be a deed of sale in favour of opposite parties 4 to 13. The petitioner's immediate landlords, opposite parties 1 to 3, there-upon applied for pre-emption under Section 26-F, Ben. Ten. Act. Their application was filed, as stated above, on 4 June 1937. The petitioner however maintained that no transfer had been effected by virtue of the document executed by him on 12 January 1937. His case was that he had actually intended to execute a mortgage deed on that date, but owing to fraud on the part of the transferees, he had been made to execute a kobala instead of a mortgage deed. He therefore instituted a suit on 25 June 1937, being Title Suit No. 119 of 1937 for the purpose of setting aside the kobala in favour of opposite parties 4 to 13. He also took steps to file an objection in the pre-emption VVase, which had been filed by opposite parties 1 to 3 to the effect that the pre-emption case in question was not maintainable on the ground that there had not been an effective transfer to opposite parties 4 to 13. On 18 August 1937, the opposite parties 1 to 3, the petitioner's immediate landlords, applied to be made parties to the suit No. 119 of 1937. Their application was however very rightly rejected by the learned Munsif of Tangail on the ground that in a suit of this nature the only necessary parties were the vendors and the vendees or their respective legal representatives. Opposite parties 1 to 3 then applied to this Court in revision against the order rejecting their application to be made parties to Title Suit No. 119 of 1937. They obtained a rule but that rule was discharged on 15 July 1938. Shortly afterwards, namely on 11th August 1938, Suit No. 119 of 1937 was heard by the learned Munsif of Tangail and decreed in favour of the petitioner before this Court, Basanta Kumar Churnakar. As a result of the decision obtained by the petitioner on that date, the kobala which he had executed on 12th January 1937 was declared void as between him and the transferees, opposite-parties 4 to 13. At that time, the pre-emption proceedings which had been instituted by opposite-parties 1 to 3 were still pending, and, on 13 September 1938 opposite parties 1 to 3 applied for an order to the effect that the petitioner's name might be expunged from the record of the aforesaid pre-emption proceedings. An order to that effect was duly made by the learned Munsif on the same day, and, as already stated, the learned Munsif on 22 September, 1938 allowed the application for pre-emption which had been filed by opposite parties 1 to 3 on 4 June 1937.

(3.) It has been urged by the learned advocate for the petitioner in this case that the learned Munsif -was wrong in dismissing the petitioner from the pre-emption proceedings on 13th September 1938, having regard to the fact that the petitioner was vitally interested in the application for preemption, which had been filed by his immediate landlords, as an order for preemption in favour of his landlords would evidently have had the effect of clouding the petitioner's title. He further contended, with reference to the order passed by the learned Munsif on 22 September, 1938, that the learned Munsif acted illegally in allowing the application for pre-emption filed by opposite parties 1 to 3, as it had been held by a competent Court that there had been no transfer by the petitioner to opposite parties 4 to 13; and this being the case, the only legal basis upon which an application for pre-emption could be presented to the Court had disappeared. In my opinion, there is considerable force in these contentions.