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Civil Rule No. 1692 of 1961, decided on 20th May 1964.

S. 96‑Pre‑emption‑Pre‑emptor not having subsisting interest in holding at time of making order‑Not entitled to relief.

In order to maintain a claim for pre‑emption, the pre‑emptor should have interest in the holding as a co‑sharer tenant not only at the time of filing of the application for pre‑emption but also throughout the proceedings. Where the pre‑emptor has no subsisting interest in the holding at the time of the order granting pre‑emption, pre‑emption should not be allowed in his favour.

Bepin Chandra Saha for Petitioner.

R. B. Guha with Abdur Rab (2) for opposite‑Parties Nos. 1 and 2.

This Rule is directed against the order of the Subordinate Judge, First Court, Barisal in Miscellaneous Appeal No. 134 of 1961, by which he reversed the decision of the Munsif, 3rd Court, Barisal in Miscellaneous Case No. 221 of 1960 for pre‑emption under section 96 of the East Bengal State Acquisition and Tenancy Act and granted pre‑emption claimed in that Miscellaneous Case.

Sunil Kumar Patibar and Dalita Sundari Patibar who are respectively the opposite‑parties Nos. 1 and 2 in this Civil Revision case, filed an application under section 96 of the said Act seeking pre‑emption of the lands mentioned therein. They are pre‑emptors 1 and 2 respectively. The lands which formed part of a raiyati holding were sold on 18‑7‑60 by Haricharan Patibar (opposite‑party No. 3) to Lakhi Kanta Patibar who is the petitioner before this Court. The application for pre‑emption was presented on 16‑11‑60, making the vendor and the vendee as parties to it. Gopal Chandra Patibar a co‑sharer tenant was also made a party in the application for pre‑emption. During the pendency of that application, Sunil Kumar Patibar, the pre‑emptor No. 1 transferred all his interests in the holding to one Rajendra Lal Datta on 1‑12‑60 who, however, was not made a party in the application for pre‑emption. The required sum was duly depo sited by the two pre‑emptors at the time of presentation of the application.

The trial Court dismissed the claim for pre‑emption holding that the pre‑emptor No. 1 having transferred all his interests in the holding had no locus standi and that the deposit made by the two pre‑emptors could not be treated as deposit by the pre‑emptor No. 2. The appellate Court reversed the decision of the trial Court and allowed pre‑emption in favour of both the pre‑emptors on the finding that application for pre‑emption is maintainable also at the instance of the pre‑emptor No. 1 inasmuch as he had locus stand at the time of presenting that application. The validity of the appellate Court's order allowing pre‑emption is under attack in this revisional application.

Mr. Bepin Chandra Saha, learned Advocate for the purchaser (petitioner before the Court) has raised the following points in support of the Rule:

(1) The application for pre‑emption is bad for defect of party for not impleading Rejendra Lal Datta, the purchaser from Sunil Kumar Patibar, pre‑emptor No. 1.

(2) The deposit made by the two pre‑emptors in the application for pre‑emption cannot be taken as valid deposit on behalf of the pre‑emptor No. 2 after the sale of the interests of the pre- emptor No. 1.

(3) The pre‑emptor No. 1 having transferred all his interests in the holding lost his right of pre‑emption and has no locus standi to pre‑empt.

The submission of Mr. Saha on the first point is that in an application for pre‑emption under section 96 of the East Bengal State Acquisition and Tenancy Act, all co‑sharer tenants of the holding are necessary parties under subsection (2) of the said section and, as such, the application for pre‑emption is not maintainable for not impleading Rajendra Lai Datta who became a co‑sharer tenant by purchase from the pre‑emptor No. 1.

Mr. R. B. Guha, learned Advocate for the pre‑emptors, on the other hand, submits that the provision of subsection (2) of section 96 is sufficiently complied with if all the co‑sharer tenants existing at the time of presentation of the application for pre‑emption are made parties. According to him, the said subsection (2) does not require that persons becoming co‑sharer tenants subsequent to the presentation of the application for pre-emption should also be made parties to the application.

In the present case, the question of impleading Rajendra Lal Datta, the transferee of pre‑emptor No. 1 in my opinion, does not appear to be at all material. There is no dispute that the pre‑emptors are co‑sharer tenants by inheritance. Sub section (5) of section 96 provides that in the case of pre‑emption claimed by co‑sharer tenants by inheritance, co‑sharer tenants by purchaser and by tenants holding contiguous lands, the co‑sharer tenants whose interest accrued by inheritance shall have the prior right to pre‑empt under that section. This being the legal position, the pre‑emptors in this case who are co‑sharer tenants by inheritance have the prior right of pre‑emption and, as such, Rajendra Lai Datta could not have claimed pre‑emption even if he had been implicated in the application for pre -emption after the sale of interests of the pre‑emptor No. 1 to him. In view of the said subsection (5), Rajendra Lal Datta, I think, is not a necessary party. The application for pre‑emption is, therefore, maintainable without impleading him.

As regards the third point, Mr. Saha has urged that the pre‑emptor No. 1 having transferred all his interests in the holding has no locus standi to maintain a claim for pre‑emption. In this case, the appellate Courts granted pre‑emption in favour of both the petitioners. In order to maintain a claim for pre -emption, the pre‑emptor should have interest in the holding as a co‑sharer tenant not only at the time of the filing of the application for pre‑emption but also throughout the proceedings. As the pre‑emptor No. 1 had no subsisting interest in the holding at the time of the order granting pre‑emption, pre‑emption should not have been allowed also in his favour. But this does not disentitle the pre‑emptor No. 2 another co‑sharer tenant by in heritance to get an order of pre‑emption in her favour in respect of the entire lands under pre‑emption.

As regards the second point, Mr. Saha contends that even the claim of the pre‑emptor No. 2 is not maintainable inasmuch as the deposit made in this case by the two pre‑emptors cannot be treated as a valid deposit by or on her behalf. In this regard, the pre‑emptor No. 1 made an application to the trial Court stating that the deposit made in the case might be treated as a deposit on behalf of the pre‑emptor No. 2 if his claim for pre‑eruption on account of the transfer made by him is not found to be maintainable. The purpose of the deposit is to compensate the purchaser. This purpose will not be frustrated if the deposit in this case is treated as a deposit duly made on behalf of the pre‑emptor No. 2 under the section. This is after all a technical objection and cannot go to defeat the claim for pre-emption which has been found otherwise maintainable.

In the above view of the matter, the pre‑emptor No. 2 alone being entitled to pre‑empt the entire lands under pre‑emption, the right, title and interest in the lands vests in her.

With this modification of the order of the appellate Court, the Rule is discharged. There will be no order as to costs.

S. Q. Order accordingly.

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