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Appeal from Appellate Decree No. 406 of 1949, decided on 23rd February 1953.

S. 11, Explanation IV--- Res‑judicata‑ Principles of‑Decision in former proceeding challenged in subsequent suit on the ground that the former Court could give a decision only if the land which was the subject of proceeding had been an occupancy holding, whereas, it was only an under‑raiyati‑Objection as to nature of land, however, not raised in former proceeding‑Former decision operates as res -judicata‑Bengal Tenancy Act (VIII of 1885), S. 26‑F.

A piece of land, sold to the appellant, was described as an occupancy holding in the deed of sale. Under section 26F, Bengal Tenancy Act (VIII of 1885), the sale was pre‑empted by a co‑sharer, and an ex‑parte order was passed in his favour. The appellant sought to nullify the effect of the order by a suit for declaration of title and that the order passed under section 26F, Tenancy Act, was null and void and without jurisdiction because the land was only an under‑raiyati.

The suit was resisted as barred on the principle of res -judicata.

Held, that the decision in the pre‑emption case was res judicata in view of the provisions of Explanation IV of section 11, Civil P. C. The question of nature of the holding could not be re‑agitated in the subsequent suit.

It could be said in this case that the Court had not applied its mind to the question of nature of holding, but that was because the appellant had not raised any objection to the jurisdiction of the Court in the pre‑emption case, and in the ordinary course, the Court assumed jurisdiction in accordance with the statutory power.

The Court in passing the order in the pre‑emption case was competent to do so within the meaning of section 44 of the Evidence Act, and the Court had sufficient jurisdiction so as to make section 11 of the Code of Civil Procedure applicable to the case.

The decision in the previous pre‑emption case even it be held to be erroneous in law operated, as res‑judicata.

The entire jurisdiction of the Court to grant relief in the shape of pre‑emption under section 26F required that the holding must be an occupancy holding. Therefore, it was legitimate to hold that in a proceeding under section 26F, the Court must first satisfy itself that it was an occupancy holding. If the purchaser wanted to defeat the claim of the co‑sharer of the transferor for pre‑emption, he should have raised the question of nature of the holding at the appropriate stage.

Muhammad Nurul Huq Choudhury for Appellant.

B. C. Das for Respondent No. 1.

‑This second appeal by the plaintiff is against the appellate decision of the Subordinate Judge, First Court, Faridpur, reversing a decision of the Additional Munsif of Gopalganj, in a suit for joint possession on declaration of plaintiff's title to a fourth share of the suit land and also for a declaration that the order passed in Miscellaneous Case No. 77 of 1945 on the 7th April 1945, under section 26F of the Bengal Tenancy Act is null and void and without jurisdiction.

The facts material for our present purpose may be shortly stated as follows. R. S. plot 809 of Kol Khatian No. 860, which is an under‑raiyati, belonged in equal shares to two brothers Sabdu and Daliluddin and it is so recorded in C. S. and R. S. Khatians Nos. 2 and 2 (a). Daliluddin made a gift of his 8 annas' share by a deed (Exh. 1), dated the 18th January 1940, to his wife pro‑defendant No. 2 Sabju Bibi and daughter pro‑defendant No. 3 Safura Khatun in equal shares, and the executant was identified in the registration office by the defendant No. 1, son of Sabdu. Then pro‑defendant No. 2 sold her 4 annas' share acquired under the gift to the plaintiff describing the land as occupancy holding by a Kabala (Exh. A) on the 11th November 1944. Sabdu's 8 annas' share was inherited by defendant No. 1 and pro‑defendants Nos. 3 to 7. On the application of the defendant No. 1 under section 26F of the Bengal Tenancy Act in Miscellaneous Case No. 77 of 1945 the learned Munsif passed an ex‑parte order for pre emption in favour of the defendant No. 1 on the 7th April 1945. According to the plaintiff this was obtained fraudulently, by suppression of notices of the pre‑emption case because the land was a portion of an under‑raiyati holding in which case pre‑emption could not be allowed under the law. The plaintiff having come to know of this when the defendant No. 1 took delivery of possession of the suit land through Court in the last part of Falgun, 1352 B. S. (middle of March 1946), filed an application under Order IX, rule 13 of the Code of Civil Procedure, to set aside the ex‑parte order in the pre‑emption case, which she lost up to the appellate Court on the 8th April 1946, on the finding that notice of the pre‑emption proceeding, was served on the plaintiff. The plaintiff alleges that as section 26F of the Bengal Tenancy Act does not apply to an under‑raiyati holding, so the order in the pre‑emption case was null and void and without jurisdiction; and it was more so because the pre‑emptor defendant No. 1 knew that the sale to the plaintiff was of a portion of an under‑raiyati holding. Hence this suit was filed on the 7th May 1946, for possession of 4 annas' share of the suit land on declaration of her purchased right therein and also for a declaration that the order in Miscellaneous Case No. 77 of 1945 for pre‑emption was null and void and without jurisdiction.

The defence of the defendant No.1 inter alia was that the suit land was a portion of an occupancy holding, which the plaintiff purchased, and on service of notice of the sale, the defendant No. 1 exercised his right of pre‑emption after due service of notice of the pre‑emption proceeding, and so the plaintiff's suit was barred on the principle of res‑judicata and therefore the plaintiff was not entitled to any relief.

On those pleadings the following amongst other issues have been raised: "(2) Is the suit barred by principles of waiver, acquiescence and estoppel (3) Is the suit barred by res‑judicata (4) Was the order of pre‑emption in case No. 77 of 1945 fraudulent and collusive and as such liable to be set aside "

The learned Munsif decreed the suit holding inter alia (a) that the suit land appertained to a kol raiyati holding and as such was not pre‑emptable under section 26F of the Bengal Tenancy Act, (b) that the notice of the pre‑emption case was served on the plaintiff, (c) that the order in the pre‑emption case cannot operate as res‑judicata as the question relating to the nature of the tenancy could not be raised or decided in the proceeding under section 26F, the foundation of which was the admission of the purchaser in the Kabala that it was an occupancy holding, (d) that it was not barred by the principles of waiver, acquiescence and estoppel, and (e) that the order of the pre‑emption proceeding was void for want of jurisdiction.

On appeal by the defendant No. 1. the learned Subordinate judge has reversed that decision holding (i) that a co‑sharer of an under‑raiyati holding having occupancy right has no right of pre‑emption under section 26F, (ii) that mere recital in the Kabala (Exh. A) that it is an occupancy holding will not estosp the plaintiff to say that it is not a raiyati, (iii) that there was no fraud practised in the matter of obtaining the order for pre‑emption in the proceeding and that notice of the pre‑emption proceeding was served on the plaintiff, (iv) that the question as to title and the nature of the tenancy can be raised in a pre‑emption proceeding, and (v) that the order in the pre‑emption case is not void as being made without jurisdiction and it cannot be ignored as a nullity ; and so the order in the pre‑emption case stands as a bar for reagitation of the self‑same question which could be raised and decided in the pre‑emption proceeding.

The propriety of that decision is challenged in this second appeal on behalf of the plaintiff by Mr. Nurul Huq Choudhury, firstly, that the order in the pre‑emption case having been obtained by practising fraud, the present suit to declare that order as void and without jurisdiction should be decreed; and secondly, which is his main contention, that the order in the preemption case being a nullity, the present suit is not barred by the principle of res‑judicata and in support of the latter contention, he relies entirely on the decision in the case of Prasanna Kumar Roy Choudhury v. Sreemati Adya Sakti Dasi (46 C W N 1022).

As regards the first contention, Mr. Choudhury argues that as the order in the pre‑emption proceeding has been obtained by practising fraud on the Court, it should be held to be void. His argument is that fraud vitiates everything. In support of his argument the learned Advocate for the appellant cites Khagendra Nath Mahata v. Pran Nath Roy ((1902) L R 29 1 A 99) and relies on the following observations of Lord Robertson at page 103 : "These allegations are plainly an attack, not on the regularity of sufficiency of the service of the proceedings, but on the whole suit as a fraud from the beginning to end . . . .Those sections (108 and 311 of the Code of Civil Procedure, now Order IX, rule 13 and Order XXI, rule 90 of the present Code) limit the attention of the Tribunal to specific matters, and, instead of subjecting to inquiry the radical questions now involved, they assumed the existence of a real suit. But here the suit itself is attacked as a fraud ; and the fraudulent and violent incident of its progress, as for instance, at the stage of service and in the abduction of the respondent, while they may individually have founded an application under sections 108 and 311, are here treated as parts and indicia of a whole." There is not controversy here about the principle laid down there but the facts here and as found are different. There is no specific allegation of fraud in this case except that the defendant No. 1 being a co‑sharer of the holding and having definite knowledge that it was an under‑raiyati made a declaration in the pre‑emption proceeding that it was a rayati. That he did in conformity with the recital in the kabala for the purpose of exercising his right of pre‑emption and if he had any intention to commit fraud, he would not have served notice of the pre‑emption case upon the plaintiff. But here the finding of the two Courts below as well as in the proceed ing under Order IX, rule 13 of the Code of Civil Procedure is that the notice of the pre‑emption proceeding was duly served on the plaintiff. Therefore, I hold in concurrence with the Court of appeal below that there was no fraud committed in obtaining the order in the pre‑emption proceeding. Mr. Choudhury argues that this finding of service of notice on the plaintiff in Order IX, rule 13 proceeding is not warranted ; but I am afraid I cannot accept this contention now at this stage. So I overrule the first contention of Mr. Choudhury.

The main contention on behalf of the appellant is the second contention of Mr. Choudhury, viz., whether the order in Miscellaneous Case No. 77 of 1945 is a nullity or whether the Court of Appeal below was right in holding that the present suit was barred by res‑judicata. This question is not free from difficulty and requires to be closely examined on the facts of this case. Now on this question Mr. Choudhury refers to me the case of Prasanna Kumar Roy Choudhury v. Sreemati Adya Sakti Dasi where it has been ruled that where there has been order for pre‑emption, the subsequent suit by the purchaser for a declaration that the holding is not an occupancy holding is not barred by res‑judicata. But it may be stated at the outset that this case has been explained in Sankaracharya Mullick v. Sk. Sademani (49 C W N 580) and doubted in Balai Chand Mondal v. Nibaran Chandra Das (51 C W N 644). In S. A. No. 441 of 1948, Aminuddin Ahmad v. Imanuddin Bepari decided by me on the 19th January 1953, I have expressed my own view in the matter, which is not in conso nance with the broad principle laid down in Prasanna Kumar's case.

Before we go into a detailed consideration of that case, the primary question which requires determination here is whether there is any statutory provision on this particular matter. Of course, section 11 of the Code of Civil Procedure contains the main provisions on the subject of res‑judicata in a suit. Now, if we look to the section, we curiously find that it does not provide expressly that the previous suit should necessarily be tried by a Court of competent jurisdiction, but it refers only to the question that the subsequent suit must be tried by a competent Court, which, of course, is a different matter. From this, I do not for a moment contend that because there are no express words, the legislature means that the Court trying the first instituted suit need not have jurisdiction to try that suit. That will be opposed to the law in England. The present section 11 deals with the doctrine of res‑judicata and it enacts the leading principles of res‑judicata as stated by Sir William de Gray in Duchess of Kingstone's case. That is invariably the law in this country. For instance in Halsbury's Laws of England, Hailsham Edition, Volume 13, Article 493 at page 433, it is said :‑

"In order that estoppel by record may arise out of a judgment, the Court which pronounced the judgment must have had jurisdiction to do so. The lack of jurisdiction deprives the judgment of any effect, whether by estoppel or otherwise ; Rogers v. Wood ((1831) 2 B and Ad. 245). "

Thus in Rajwant Prasad Pande v. Ram Ratan Gir ((1915) L R 42 1 A 171), which was a case of a suit, as here, brought to get rid of the effect of a decree, it was observed by Lord Shaw of Dunfermline at page 176 : "The case under which these objections were brought forward was competently before the Court ; it had jurisdiction to entertain them." So their Lordships contem plated the first Court had jurisdiction.

The other obvious statutory provisions are to be found in sections 40 and 44 of the Evidence Act Section 40 provides:

"The existence of any judgment, order or decree which by law prevents any Court from taking cognizance or a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial". Section 44 enact : "Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under sections 40, 41 or 42, and which has been proved by the adverse party was delivered by a Court not competent to deliver it, or obtained by fraud or collusion." So that so far as our statutory law is concerned, the question cannot be better put in words than the legislature has used in section 44, viz., whether the Court which dealt with the pre emption proceeding was competent to pass the order that it did in that case. The "competency" of a Court and its "jurisdiction" are thus synonymous terms and they mean the right of a Court to adjudicate in a given matter.

Then referring to the argument of Mr. Choudhury it may be put in this way, that the test in a case like the present is whether the Court that tried the pre‑emption case, a decision in which is alleged to be res‑judicata, in fact had jurisdiction and not whether that Court supposed itself to have jurisdiction. On that test Mr. Choudhury urges that the Court which' dealt with the pre‑emption case, did not in fact had jurisdiction to pass the judgment and, therefore, it was nullity. But it may be said on the other hand that the present case is not one where the first Court clearly had no jurisdiction, and that, on the contrary, the law allowed that Court to pass the order or the decree that it did, and in any case the Court deciding the pre‑emption case was competent to decide the question of jurisdiction that arose and its decision, whether right or wrong, binds the parties to that case ; and accordingly the order that was passed in that case could not be a nullity.

In the present case it has been argued on the assumption that the order in the pre‑emption case was improperly made because the pre‑emptor knew that the holding was an under raiyati one, and so section 26F of the Bengal Tenancy Act was not available even though in the plaintiff's kabala it was wrongly described as an occupancy holding. The appellant contends that the order in the pre‑emption case must be deemed to have been made without jurisdiction, and consequently null and void; while the contention of the respondent is that even assuming that the order was improperly made, it is conclusive between the parties, because, however erroneous it might be deemed to have been, it cannot be said that it was made without jurisdiction. I may say that the competency of a Court means its jurisdiction to hear and determine a cause. In Hridoy Nath Roy v. Ram Chandra Barma Sarma (I L R 48 Cal. 138 (146‑151) (F B)) Mookerjee, A. C. J. observed "In the order of reference to a Full Bench in the case of Sukh Lal Sheikh v. Tara Chand Ta (I L R 33 Cal. 68), it was stated that jurisdiction may be defined to be the power of a Court to hear and determine a cause to adjudicate or exercise any judicial power in relation to it ; in other words, by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. An examination of the cases in the books discloses numerous attempts to define the term 'jurisdiction' which has been stated to be 'the power to hear and determine issues of law and fact 'the authority by which the judicial officers take cognizance of and decide causes;' 'the authority to hear and decide a legal controversy;' the power to hear and determine the subject‑matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them;' the power to hear, determine and pronounce judgment on the issues before the Court;' 'the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgments into effect ;' 'the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution.' Reference may in this connection be made to the discussion of the nature of jurisdiction in the judgment of this Court in Ashutosh v. Behari Lal (I L R 35 Cal. 61) and Gurdeo v. Chandrikah (I LR 36 Ca1. 193). This classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject‑matter is obviously of a fundamental character. Given such jurisdiction, we must be careful to diseinguish exercise of jurisdiction from existence of jurisdiction ; for fundamentally different are the consequences of failure to comply with statutory require ments in the assumption and in the exercise of jurisdiction. The authority to decide a case at all and not the decision rendered therein is what make up jurisdiction ; and when there is jurisdiction of the person and subject‑matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction . . . But the distinction between existence of jurisdiction and exercise of jurisdiction has not always been borne in mind and this has led to confusion. See Mabulla v. Hemangini (11CLJ512) and Moser v. Marsden ((1892) 1 Ch. 487). . . . A judgment pronounced by a Court without jurisdiction is void, subject to the well‑known reservation that when the jurisdiction of a Court is challenged, the Court is competent to determine the question of jurisdiction, though the result of the enquiry may be that it has no jurisdiction to deal with the matter brought before it : Rashmani v. Ganoda (20 C L J 213 (217)). Since jurisdiction is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the correctness of the decision pronounced, for the power to decide necessarily carries with it the power to decide wrongly as well as rightly . . . There is a clear distinction between the jurisdiction of the Court to try and determine a matter, and the erroneous action of such Court in the exercise of that jurisdiction. The former involves the power to act at all, while the latter involves the authority to act in the particular way in which the Court does act. The boundary between an error of judgment and the usurpation of power is this‑the former is reversible by an appellate Court within a certain fixed time and is therefore only voidable, the latter is an absolute nullity. When ‑ parties are before the Court and present to it a controversy which the Court has authority to decide, a decision not necessarily correct but appropriate to that question is an exercise of judicial power or jurisdiction. So far‑as the jurisdiction itself is concerned, it is wholly immaterial whether the decision upon the parti cular question be correct or incorrect . . . . The decision may be erroneous, but it cannot be held to be void for want of jurisdiction. A Court may have the power and. right to determine the status of a thing and yet may exercise its authority erroneously ; after jurisdiction attaches in any case, all that follows is exercise of jurisdiction, and continuance of jurisdiction is not dependant upon the correctness of the determination . . . . The Court has jurisdiction to try the suit . . . . It is plain that, however, erroneous the order may be, it is not an order made by a Court without jurisdiction, it is on the other hand, an order made by a Court of competent jurisdiction acting with material irregularity in the exercise of its jurisdiction: The order cannot consequently be deemed null and void. The party aggrieved may directly impugn the order, and may, in the appropriate proceeding, invoke the aid of a superior Tribunal to set aside the order . . . . but till it has been so vacated, it is operative between the parties and cannot be ignored or challenged collaterally in a different proceeding."

Again in Halsbury's. Laws of England, Hailsham Edition, Volume 13, Article 493 at page 439, it is said : "The absence of a condition necessary to found the jurisdiction to make an order, or give a decision, deprives the order or decision of any conclusive effect, Reed v. Nutt ((1890) 24 Q B D 669) ; but it is otherwise where the order is good on its face and the Court adjudicating has jurisdiction to determine the existence or not of the condition, and the party denying its existence has neglected his oppor tunity of raising the objection at the hearing ; River Ribble Joint Committee v. Croston Urban District Council ((1897) 1 Q B 251)."

From the above observations and the decisions of the Allahabad, Bombay, Calcutta and Lahore High Courts, which are too numerous to be cited here and the decision in Raja of Ramnad v. Velusami Trevor ((1920) L R 48 1 A 45), it appears that all these decisions go upon the view that where a matter has been constructively in issue so as to bring it under Explanation IV to section 11 of the Code of Civil Procedure, it could not, from the very nature of the case, be heard and decided against the party who might and ought to have alleged it. It has already been seen that a Court having jurisdiction to decide the question whether or not it has jurisdiction includes the power to decide the question rightly or wrongly as laid down in Malkarjan v. Narhari (LR27IA216). The remarks in Kharajmal v. Diam (LR32 IA33) do not affect the present question because all that has been said there is that the jurisdiction to decide rightly or wrongly could not apply to a case where the Court had never applied its mind to the particular question, which in that case was whether a certain person properly represented another. No doubt, it may be said in this case that the Court never applied its mind to the question, but that was because the present plaintiff, in the pre‑emption case did not raise any 8 objection to the jurisdiction of the Court, and in the ordinary course, the Court assumed jurisdiction in accordance with the statutory power. The question here resolves itself to this whether Explanation IV to section 11 operates to this suit. For the reasons already given, I hold that the Court in passing the order in the pre‑emption case was competent to do so within the meaning of section 44 of the Evidence Act, and c also that the Court had sufficient jurisdiction to bring the case within section 11 of the Code of Civil Procedure. Under Explanation IV to section 11, the point of jurisdiction was one that certainly might have been raised by the present plaintiff in the pre‑emption proceeding as a ground of defence. Again under section 21 of the Code of Civil Procedure the plaintiff should have raised it at the earliest possible opportunity. So that, at any rate the question about the non‑applicability of section 26F of the Bengal Tenancy Act should have been made a ground of objection in the pre‑emption proceeding ; and that being so the present plaintiff cannot raise it again as she seeks to do in this suit. So in my opinion this is clearly a case where the ordinary principle of finality of litigation should be enforced. In Jamadar Singh v. Serazuddin Ahmad Choudhury (I L R 35 Cal. 979 (986)), it has been observed : "Justice requires that every cause should be once fairly tried and public tranquility demands that having been tried once, all litigation about that cause should be concluded forever between those parties." This view which I take here finds support in Ginwar Narayan Mahton v. Kamla Prasad (I L R 12 Pat. 117) and in the case of Haripada Roy v. Krishna Benode Roy (43 C W N 659). See also Yeruvachinnapa Reddi v. Official Receiver, Guntur (I L R 59 Mad. 62).

There is one other aspect of the matter which was not argued, namely, that an erroneous decision on a point of law may operate as res‑judicata. A decision, however, erroneous may be on a question of law may not operate as res‑judicata only in cases where the causes of action are different, but in all other cases it must operate as res‑judicata. See Ayetonnessa Bibi v. Amjad Ali (32 C W N 828). In the case of Tarini Charan Bhatta charjee v. Kedar Nath Haldar (33 C W N 126 (F B)), it has been laid down that whether a decision is correct or erroneous has no bearing on the question of its operating as res‑judicata, but what is res judicata between the parties is not the reasoning or any principle of law, but the actual decision declaring the rights of the parties. See also Maharaja of Jeypore v. Sutapalli Ramamurty (I L R 57 Mad. 73), Sitaram Sakhram v. Laxman Vinayak (I L R 45 Bom. 1260 (F B)), Gouri Koer v. Anop Koer (I L R 10 Cal. 1087, 1091) and Ramlal Malik and v. Deodhari Rai (I L R 2 Pat. 771). Therefore, the decision in the previous pre‑emption case even it be held to be erroneous in law, in my opinion, operates as res‑judicata.

Keeping in view the aforesaid principles, let us see how far the second contention of Mr. Choudhury based entirely on the decision in Prasanna Kumar Roy Choudhury v. Sreemati Adya Sakti Dasi helps him. In that case the plaintiff purchased by a registered document a raiyati holding described as an occupancy holding on the 27th March 1934, from one Gobinda, and notice was given to the defendant landlord under section 26C (3) of the Bengal Tenancy Act. On the 22nd August 1934, the landlord defendant applied for pre‑emption of the portion purchased by the plaintiff. On the 4th February 1935, the record‑of‑right was finally published recording the holding as an occupancy holding. In April 1935, the vendor of the plaintiff Gobinda filed a suit under section 106 of the Bengal Tenancy Act to correct the record of‑rights by recording him as a mokarari raiyat. To this suit both the plaintiff and the defendant were parties and this suit was decreed by the trial Court on the 26th November 1936 and that decree was affirmed by the first appellate Court on the 20th August 1936, and also in second appeal on the 26th April 1937. The defendant ‑ landlord's application for pre emption was allowed on the 26th November 1996. On the 25th March 1937, the plaintiff instituted a suit in the Munsif's Court for declaration that the land purchased by him was part of raiyati holding at fixed rent and so the order for pre emption under section 26F of the Bengal Tenancy Act was void and without jurisdiction and for confirmation of her possession of the land purchased by her (and it may be said that the facts of that case are similar to those arising in the present suit). That suit was dismissed by the trial Court but decreed by the learned District judge and a second appeal to the High Court was dismissed by Sen, J. and on appeal under clause 15 of the Letters Patent by the landlord defendant it was argued that the order under section 26F of the Bengal Tenancy Act prevented the Court from trying that suit. Their Lordships of the Calcutta High Court (Nasim Ali and Blank, JJ.) held that the purchaser is not‑entitled to raise the question as to the nature of the holding because the foundation of .the proceedings under section 26F of the Bengal Tenancy Act is the admission of the purchaser in his deed of purchase that the holding is an occupancy holding. At page 1025 it is observed : "Such questions, therefore, cannot be submitted for determination and cannot be determined in a proceeding under section 26F of the Bengal Tenancy Act. It cannot be said, therefore, that the plaintiff might and ought to have raised the issues in the present suit in the proceeding under section 26F . . . . the order in the proceeding under section 26F in the present case does not operate as res‑judicata . . . . The holding of which the dis puted land is a part is not an occupancy holding but is a raiyati holding at fixed rent. The condition precedent to the assumption of jurisdiction for making the order under section 26F of the Bengal Tenancy Act was absent at the time when the proceeding under that section was started and the order there under was made. If the defendant wants to rely on .the order under section 26F to show that it operates as res‑judicata on the footing that it involves constructively the final determination of the issues raised in the present suit, he cannot do so because the determination of the issues on that order must be taken to have been made by a Court not competent to try and determine the issue in the present suit. In other words, the order being void and inoperative cannot operate as res‑judicata."

In Sankarcharyya Mullick v. Sk. Sademani, a question arose whether the purchaser could raise the question about the real nature of the tenancy and the decision in Prasanna's case was relied on by the learned judge of the first appellate Court ; and in dealing with that case Mukherjea, J. with whom Akram, J. concurred at page 582 observed : "It appears to us that in this part of the judgment, the learned judges did nothing else than lay down the proposition of law that when a property was purchased as an occupancy holding, and notice was issued under section 26C of the Bengal Tenancy Act, it was not open to the purchaser to contend that the holding was really not an occupancy holding. The judgment of the learned judges could not, in our opinion, be construed to mean that the Court in a proceeding under section 26F of the Bengal Tenancy Act has no jurisdiction to enter into the question as to the real nature of the Tenancy. This would be clear from the concluding portion of the judgment where the learned judges expressly say that the condition precedent to the assumption of jurisdiction by the Court for making an order under section 26F of the Bengal Tenancy Act is the fact that the property sold was an occupancy holding, and if actually the holding was not an occupancy holding, the order would be wholly without jurisdiction. If this is the position, the Court would undoubtedly be competent to decide as to whether the condition precedent to the assumption of jurisdiction by it exists or not, and it is only when the rule of estoppel operates against the purchaser that it can be relieved of its duty to enter into this question. In our opinion, this is the view which is deducible from the various decisions referred to above, and which seems to us to be perfectly sound in .principle." If I may say with respect Mukherjea and Akram, JJ. could not accept the principle broadly laid down by Nasim Ali and Blank, JJ. in 46 C W N 1022. In that decision in 49 C W N 580 their Lordships also observed that in a proceeding under section 26F the enquiry is not confined to matters specified in subsections (1) and (2) of that section only. I may add here with great respect to the learned Judges who decided Prasanna's case that in view of what have said in the beginning of my judgment that I feel great difficulty in accepting the general proposition there laid down that in a proceeding under section 26F of the Bengal Tenancy Act, the purchaser cannot raise the question of nature of his title at all.

Then in Balm Chand Mondal v. Nibaran Chandra Das, the decision in Prasanna's case was reviewed and was doubted by Chakravarti, J. (as he then was) with whom Ellis, J. (as he then was) concurred. In. that case a question arose if the H question of benami nature of the sale could be raised and it was held that such a question was within the proper scope of an enquiry under section 26F of the Bengal Tenancy Act and it could and must be gone into and the decision thereon would operate as res‑judicata in a subsequent suit ; and that matters expressly specified in section 26F were not the only matters within the proper scope of an enquiry under that section.

I have held in S. A. No. 441 of 1948, Aminuddin Ahmad v. Imanuddin Bepari decided on the 19th January 1953, (not reported) that a question of benami should be gone into ; and I have said that the right of pre‑emption rests on the foundation that there is a transfer and the question about the nature of the transaction goes to the root of the right of the applicant to claim pre‑emption and the jurisdiction of the Court to grant it.

If we look at section 26F as a whole, it is impossible to hold that all questions regarding nature of title are excluded from the purview of an enquiry under that section. We find that the right of pre‑emption does not extend to all kinds of transfers of a portion or a share of an occupancy holding because clauses, (a) to (e) of subsection (1) specify certain exceptions where the right of pre‑emption cannot be claimed. Those clauses involve questions of title and a person can defeat an application for pre‑emption showing that the trans feree is of one of the kinds mentioned in those clauses. Again under subsection (11) of section 26F, the Court can decide the question whether the transfer on the basis of which pre emption is claimed is such a transfer as is contemplated in the section or is a simple or usufructuary mortgage or a mortgage by conditional sale in respect of which no decree or order absolute or for foreclosure has yet been made. This matter also involves question as to title. Again under subsection (5), the Court is to pass an order in favour of one or more applicants as the case may be and under subsection (6) the Court may apportion the pre‑empted property; and under subsection (7) the right, title and interest of the purchaser accruing from the transfer vests in the pre‑emptor and the liability of the purchaser to pay rent due from him ceases and the Court may place the pre‑emptor in actual possession of the pre‑empted property. Therefore, the order for pre‑emption creates a real interest in the property in the pre‑emptor and he acquires the right to possess it. It cannot, therefore, be said as a broad proposition of law that whenever there is a transfer of a share or a portion .of an alleged occupancy holding and there is an application for pre‑emption, which fulfils the requisite conditions mentioned in the section, the Court must grant the application without considering and without having the power to decide whether there has really been a transfer at all of a portion of an occupancy holding or whether the transfer is of the kind which is contemplated in the section. If that be held to be the intention of the legislature then the action of the Court will be open to question in future, when the entire pro ceeding may be held to be without any foundation or jurisdic tion, or in other words there will be no finality of the litigation and a person should be twice vexed for the same cause. In my opinion, such a view will be quite inconsistent with the provisions of the section, and the pre‑emption proceedings will be useless and infructuous and the pre‑emptor will always be under a threat of losing his statutory right by a further litigation. In that view of the matter it cannot be said that the Court deciding the pre‑emption case had no juris diction in dealing with the question of the nature of the holding sought to be pre‑empted ; and that the order in the pre‑emption case is null and void.. Again it appears from the language of the Statute that in order to give jurisdiction to the Court to grant relief in the shape of pre‑emption, the Court must be satisfied that the proceeding is in conformity with certain essentials, one of which is that it must relate to a transfer of a portion of an occupancy holding. The entire jurisdiction of the Court to grant relief in the shape of pre emption under section 26F requires that the holding must be an occupancy holding. Therefore, it is legitimate to hold that in a proceeding under section 26F, the Court must first satisfy itself that it is an occupancy holding. If the purchaser wants to defeat the claim of the co‑sharer of the transferor for pre emption, he must and should raise the question of nature of the holding at the appropriate stage and if unsuccessful, he may ventilate his grievance by methods provided for in the Statute itself. Therefore, the Court dealing with a pre‑emption proceeding has jurisdiction to decide the question about the nature of the holding, and so his decision in the pre emption case will be res‑judicata in view of the provisions in Explanation IV of section 11 of the Code of Civil Procedure. In view of the principles, I have endeavoured to lay down at the beginning of this judgment and what has been said by me before, I am of opinion that the question of nature of the holding in dispute is barred by the doctrine of res‑judicata, in the present suit.

I may observe here that I do not feel impressed with the observations often made that a proceeding under section 26F of the Bengal Tenancy Act is a "summary" one. The matter came up for consideration before Mukherjea and Akram, JJ. in Sankarcharyya's case and their Lordships though held that such a proceeding should be treated as a regular suit but observed : "The question may have to be decided on a proper occasion." Again the matter came up .for consideration in the case of Balai Chand Mondal and Chakravarti and Ellis, JJ. observed at page 649: "It is true that proceedings under section 26F have been called 'summary' proceedings but having regard to the right of the Court to take evidence and the provisions for .an appeal, there is little to distinguish them from suits, except that they are initiated by an application." With great respect to their Lordships, I agree with them in holding that a proceeding under section 26F is not a 'summary' one. I also agree with their Lordships with utmost respect that "even assuming that the proceedings are of a 'summary' character, it can hardly be disputed that a decision on a matter properly and directly within their scope will be final and will operate as res‑judicata, although section 11 of the Civil P. C. may not be in terms applicable."

Therefore, considering the second contention of Mr. Choudhury in all its various aspects, I hold that his contention is not tenable, and that the learned Subordinate judge is correct in holding that the question as to the nature of the holding is res‑judicata in view of the order in the pre emption proceeding.

The result, therefore, is that, as both the contentions of Mr. Choudhury fail, this appeal is dismissed.

As regards costs, in view of the conduct of the defendant in this case, I direct that the parties in this suit and the appeals must bear their own costs in all the Courts up to this stage.

In view of the fact that a question of law arises here in which Courts have not decided the point in controversy in the same voice, I grant the prayer of the learned Advocate for the appellant for leave to appeal under clause 15 of the Letters Patent.

A. H. Appeal dismissed.

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