Priya Nath Biswas vs Natobar Biswas

Das, J.—This is an appeal by the Plaintiff Priyanath Biswas and is directed against a decision of Shri Palas Chandra Pal, learned Subordinate Judge, seventh additional court, Alipore, District 24-Pargands.

The facts found by the lower appellate court are these:

On July 17, 1945, Umesh and Girish, who were co-sharer tenants in an occupancy holding forming the subject-matter of the present suit, transferred their interest therein measuring 46 acres to two persons who are pro forma Defendants 3 and 4 in this suit.

On December 28, 1945, the contesting Defendant filed an application u/s 26F of the Bengal Tenancy Act giving rise to Miscellaneous Judicial Case No. 563 of 1945. In this application for pre-emption the transferees alone were made parties. The transferees appeared and filed objections. On December 14, 1946, the Defendant''s application for pre-emption was allowed. Meanwhile on April 6, 1946, the Plaintiff who was not impleaded in the application for pre-emption filed by the Defendant made an application impleading the transferees as also the contesting Defendant parties to the proceeding. This application gave rise to Miscellaneous Judicial Case No. 131 of 1946. Notice of this application was not served on the contesting Defendant. The application for pre-emption was allowed exported on June 1, 1946.

The Plaintiff raised the present action for a declaration of his title and for confirmation of possession on the allegation that the contesting Defendant was threatening to disturb his possession.

The share of the Plaintiff in the disputed occupancy holding annas 13 gandas 9 kak 3 til and that of the contesting Defendant annas 10 gandas 4 karas. On these facts a question of law which is not covered by any judicial decision falls to be determined. Both the courts below are of the opinion that the Plaintiff will be entitled to get 10 acres out of the suit land. On this basis the courts below have decreed the Plaintiff''s suit in dart and declared his title to 10 acres out of the suit land and have made an order that the Plaintiff is to get joint possession hereof with the contesting Defendant No. 1.

Mr. Bhabesh Chandra Mitter, who has appeared in support of the appeal, has raised a three-fold contention. In the first place, he has contended that as the order for pre-emption u/s 26F if the Bengal Tenancy Act was made in the Plaintiff''s favour on date anterior to that on which a similar order was made in avour of the contesting Defendant No. 1, the Plaintiff should be declared to be entitled to the entire occupancy holding as prayed for in the plaint. In the second place, he has contended that in any event, the Plaintiff and the contesting Defendant No. 1 should be declared to be entitled to equal moieties share in the suit lands. In the alternative he has contended that there should be a direction for refund of a proportionate share of the deposit made by him in view of the fact that the transferees pro forma Defendants 3 and 4 have taken out the entire purchase money deposited by him.

I shall first deal with the first contention raised by Mr. Mitter. The question depends on the effect of an order for pre-emption u/s 26F(7) of the Bengal Tenancy Act. The right of pre-emption is conferred by Section 26F of the Bengal Tenancy Act on all co-sharer tenants. Such a right accrues on the date of the transfer and arises in favour of all the co-sharers in the occupancy holding. (Jabindra Nath De v. Jetu Mahato and Ors. (1946) 50 C.W.N. 502 (F.B.)). Section 26F also provides a machinery for the enforcement of that right. The section does not in clear terms provide that all the co-sharer tenants must be impleaded by the pre-emptor in an application filed by him u/s 26F of the Act. It has been held by this Court in the case of Gobardhan Bar v. Gunadhar Bar (1940) 44 C.W.N. 802 that an application for pre-emption is competent although all the co-sharer tenants are not made parties. The necessary party in such an application is the transferee. In this view, the application for pre-emption filed by the Plaintiff in which the Defendant was impleaded but not the other co-share; tenants, was a competent application. It has been found by the lower appellate court that the Plaintiff did not serve notice of the application on the Defendant. It must, therefore, be taken that the order for pre-emption made in the Plaintiff''s favour did not affect the rights, if any, of the Defendant. The effect of the order has to be judged on the footing as if the Defendant was not before the court. Mr. Mitter relied on the terms of Section 26F(7) on the Act the material portion whereof runs as follows:

From the date of the making of the order under Sub-section (5)-

(a) the right, title and interest in the portion or share of the holding, accruing to the transferee from the transfer, shall, subject to the provisions on Section 22 and to any orders passed under Sub-section (6), be deemed to have vested'', jointly and free from all incumbrances which have been annulled or created after the date of the transfer, in the co-share tenants, whose applications to purchase have been allowed under their section. *****

He contended that the order for pre-emption in Plaintiff''s favour passed the rights of the transferor. Section 26F(7) of the Bengal Tenancy Act has, however, to be read along with the Sub-sections which precede it. So read it is clear that the Plaintiff''s title to the pre-empted occupancy holding as referred to in Section 26F(7) must be subject to the rights of pre-emption of oilier co-sharer tenants who were not impleaded in the proceedings started, by the Plaintiff provided their rights to pre-empt did not suffer from any defect on the score of limitation or otherwise. Section 26F(7) of the Act did not confer on the Plaintiff an exclusive title to the vendor''s right in the occupancy holding, because in the application for pre-emption started by the Plaintiff, he did not implead all other co-sharer tenants. The penultimate words of Section 26F(7)(a) imply that his rights have to be determined in conjunction with the effect of other orders for pre-emption which might be made on the application of other-co-sharer tenants. In this view, the mere fact that the Plaintiff secured an order for pre-emption u/s 26F on a date anterior to that on which the Defendant obtained a similar order for pre-emption on his own application does not mean that the Plaintiff acquired an exclusive title to the transferred portion of the occupancy holding. The effect of such an order in the Plaintiff''s favour has to be judged on a reference to the other provisions of Section 26F.

Sections 26F(4)(a) and (5) do not imply that the only remedy of a co-sharer tenant who has not been impleaded in an application for pre-emption started by another co-sharer tenant but who wants to exercise his right of pre-emption is to make an application to be impleaded as a co-applicant under the provisions of 26F(4)(a). Section 26F(1), as I have already stated, confers rights of pre-emption on all co-sharer tenants. Such a right secures on the date of the transfer and may be exercised in a case here notice of the transfer has been served on him, within four on the of the service of the notice or in case of non-service of such notice, within the period laid down by this Court in the case Asmatali Sharip v. Majaharali Sardar and Anr. (1947) 52 C.W.N. 64 (S.B.) Such a new has been taken by this Court in the case of Jahiruddin Gain and Ors. v. Mohammad Shoukat Ali Biswas and Ors. (1946) 52 C.W.N. 95 and in the case of Dhananjoy Mallick v. Annada Charan Maity and Anr. (1952) 57 C.W.N. 571. The reason given in these cases is that Section 26F(4)(a) not an exclusive remedy and a failure on the part of the co-arer tenant to avail himself of the remedy prescribed by 26F(4) does not deprive him of his remedy u/s 26F(1), the to remedies being independent and alternative.

This brings me to a consideration of the question as to the ect of the order for pre-emption made on an application filed the Defendant. That application was also a competent application.

Mr. Mitter contended that even assuming that the two; applications, one made by the Plaintiff and the other by the Defendant, are competent applications, the orders made therein must have equal effect as the pre-emptor in each case deposited the whole of the consideration money. Reference was made to the case of Brindaban Ghose and Another Vs. Jiban Chandra and Others, . In that case, however, the two pre-emptors had equal shares in the occupancy holding, the learned Judge made an order declaring that the two pre-emptors would have moiety shares in the holding.

In the present case, however, the shares of the two pre-emptors, are not equal. If the two pre-emptors had been parties to an. application for pre-emption filed by either of them, the order under those circumstances would have had to be made bearing in view the provisions contained in Section 26F(6) of the Act. That Sub-section runs as follows:

In making an order under Sub-section (5) in favour of more than one co-sharer tenant the court may apportion the property comprised in the portion or share transferred among the applicants in such manner as it deems equitable after taking existing possession into consideration*****

In other words, the court should make an equitable order and in doing so take into consideration the existing possession of the parties. The learned Munsif disposed of the matter by the following observation:

Hence in view of the principles laid down in Sub-section (6) of Section 26F the suit land is to be apportioned between Plaintiff and Defendant according to their shares in the original holding.

In my opinion, this view is correct. In a case like the present in determining the title of the Plaintiff the court has to take into account the equities between the two contestants. It is no known whether the claims of the other co-sharer tenants who were not impleaded to the two applications for pre-emption filed by the Plaintiff and the Defendant are still enforceable or not. they are, it would be inequitable to allow to the Defendant the entirety of the remaining share after giving to the Plaintiff share in the transferred portion of the occupancy holding proportionate to his share in the entire occupancy holding, namely 13 gandas 9 kak and 3 til. In a case like the present, the fact order to make is to apportion between the two pre-emptors, i.e between the Plaintiff and the contesting Defendant No. 1, such shares in the transferred portion of the occupancy holding, as an proportionate to the shares of the two pre-emptors in the occupant holding itself. The disputed property, i.e., the transferred portion of the Occupancy holding must, therefore, be apportioned between the Plaintiff and the contesting Defendant No. 1 in the proportion 13 gandas 9 kak and 3 tils and 2 annas 10 gandas and 1 karas share and both the parties, the Plaintiff and Defendant No. 1, should get joint possession of the disputed land in the above shares. The decrees made by the courts below are therefore correct.

This disposes of the first two contentions raised by Mr. Mitter.

As regards the third contention that the Plaintiff should be allowed a refund of the balance of the deposit money I must say that the argument is based on a misconception. In case of an involuntary transfer, such as the present, the transferee who is the Plaintiff acts on his peril. The transferee bargains for the share to which the law gives him a title. There is no warranty of title so far as the pre-emptor is concerned. If he finds that he has purchased nothing, the law does not give him a right to recover from the transferees the money deposited by him in terms of 26F(2). In my opinion, there is no ground for permitting the Plaintiff to recover such portion of the money deposited by him in regard to which portion his title has not been declared. The third contention must, therefore, be overruled.

In the result, this appeal fails. The judgments and decrees passed by the courts below must stand. In the circumstances, he parties will bear their own costs in this appeal.