P L D 1963 Dacca 29 (PLP)

5. On an appeal preferred by opposite‑parties Nos. 1 and 2 the learned Subordinate Judge took a different view. On a consideration of the evidence on record the learned Subordinate Judge was of the opinion that the decree in question declaring the kabala as void and inoperative was collusive and fraudulent and it was brought into being with the sole object of defeating the applicant's right of pre‑emption. In that view of the matter the learned Subordinate Judge allowed the appeal and set aside the judgment and order of the learned Munsif declaring that the right, title and interest in the kabala land do vest in the petitioner (that is, opposite‑parties Nos. 1 and 2) and they do get the land on pre‑emption.

6. Against this order of the learned Subordinate Judge, the present application in revision has been moved before us.

7. Mr. B. C. Das appearing on behalf of the petitioner who was the vendor with respect to the kabala in question has urged two points before us:‑ (1) Mr. Das contends that the learned Subordinate Judge was wrong and acted with material irregularity in holding that section 44 of the Evidence Act could be applied to the facts of the present case although the opposite‑parties Nos. 1 and 2 were not parties to the decree in question ; (2) In any view of the matter there being complete absence of any finding as to the nature of the transaction the learned Subordinate Judge was wrong in allowing the application for pre‑emption with a direction that the right, title and interest in the kabala land to vest in the petitioner (opposite‑parties Nos. 1 and 2).

8. Mr. Abdul Hye Choudhury appearing on behalf of the opposite‑parties Nos. 1 and 2 has, however, contended in reply that the compromise decree having been produced before the Court in order to show that the right of pre‑emption as claimed by opposite‑parties Nos. 1 and 2 had no basis it was quite relevant, rather, necessary, for the Court to determine the effect of such decree as against the applicants in the pre‑emption case. He has relied upon a decision in the case of Surendra Chandra Mandal and others v. Sreenath Mandal and others (9 D L R (1957) 229), wherein it was held that the question as to whether a compromise decree of this character was fraudulent or not could be gone into when the right of pre‑emption was sought to be defeated by production of such a document. Apart from that it is quite clear that after service of notice of the pre‑emption case, the petitioner went to d Civil Court just to have a declaration that the kabala in question was void and inoperative. The vendees opposite‑parties joined in a compromise and as a result of that this decree was passed as a compromise decree. All these things took place during the pendency of the pre‑emption case. It cannot be disputed that opposite‑parties Nos. 1 and 2 as applicants for pre‑emption claimed their right to pre‑empt the kabala land earlier than the institution of the title suit. As such the question as to whether the opposite‑parties Nos. 1 and 2 were entitled to pre‑empt or not was in the seisin of the learned Munsif in the relevant pre‑emption case. This question was not the subject‑matter of the title suit.

9. It cannot be suggested that there has been any adjudication on the question as to whether opposite‑parties Nos. 1 and 2 were entitled to pre‑empt in the manner claimed or in the circum stances as stated in their petition. If in fact the kabala purported to transfer the right of the vendor in the properties concerned then certainly opposite‑parties Nos. 1 and 2 who were admittedly co‑sharer tenants should be deemed to be entitled to succeed in. the pre‑emption case. It was, therefore, necessary for the learned Munsif as also for the learned Subordinate Judge to go into the question as to whether as a result of this kind of compromise decree in the title suit the right of pre‑emption as claimed by the opposite‑parties Nos. 1 and 2 could be said to be still subsisting. In our view the compromise decree as also the suit in which such compromise decree was arrived at having taken place during the pendency of the pre‑emption case could not affect or prejudice opposite‑parties Nos. 1 and 2 in regard to their claim of pre emption inasmuch as they do not appear to have been imp leaded in the title suit. Being not parties to the title suit they are not B bound by such compromise decree. Even apart from the question of fraud and collusion such a decree could not bind them and they were quite free to agitate the question that their right to pre‑empt still subsisted. The petitioner having relied upon this compromise decree the opposite‑parties Nos. I and 2 were, therefore, entitled to resist this decree on the ground of fraud as also on other grounds. We do not think that the learned Subordinate Judge committed any error in determining the question as to whether the compromise decree was a fraudulent and collusive one or not. He has found by reference to the various events that took place since the institution of the pre emption case that the compromise decree was a fraudulent and collusive one. It must, therefore, be held that in such circum stances the decree cannot have any binding effect as against opposite‑parties Nos. 1 and 2 and it cannot prejudice their right of pre‑emption, if any.

10. The learned Advocate has contended that there is complete absence of any finding as to the nature of the transaction as per kabala in dispute. It appears that the learned Subordinate Judge has observed that the burden lay upon the vendor petitioner to prove that the document executed bar her was not intended to be so executed. The compromise decree has been found to be of a fraudulent and collusive character and cannot affect the validity or otherwise of the kabala in question. The onus of proof which lay upon the vendor petitioner has not, therefore, been discharged. It follows that she has not been able to prove that the kabala was not operative or that no property passed on the basis of such kabala at the date of transfer, that is, 27g3‑

56. We are, therefore, of the opinion, that on a perusal of the judgment of the learned Subordinate Judge it is quite clear that according to his view the kabala was in no way affected by the fraudulent compromise decree and as such the opposite‑parties Nos. 1 and 2 were entitled to pre‑empt the kabala land and the petitioner cannot be said to have been prejudiced in any way on that score.

11. The learned Advocate Mr. Das has next contended that the direction of the learned Subordinate judge that the right, title and interest in the kabala land do vest in the petitioner and that they do get the land on pre‑emption was contrary to the provision of subsection (7) of section 26‑F of the Bengal Tenancy Act. According to him a proper direction should have indicated that the right, title and interest accruing to the transferee should vest in opposite‑parties Nos. 1 and

2. In other words if the direction indicated that the pre‑emptor opposite‑parties Nos.1 and 2 were to get the right, title and interest of the vendees opposite‑parties then the vendor petitioner's interest would in no way be prejudiced. Mr. Das has relied upon certain observation of Chakraborty, J., in the case of Babu Hoque v. Sin. Laljan Bibi and others ((1956) 8 D L R 362), where it is observed that a pre‑emptor's right is a right to purchase from the purchaser, the latter's interest under the sale. It, however, appears on a reference to the same judgment that at a later stage the learned Judge has explained the position in this way: "It must be remembered that section 26‑F, only contemplates transfer of the holding for the transferred portion or share thereof. In other words, it only contemplates that the pre‑emptor shall be entitled to acquire by pre‑emption whatever has been transferred to the original transferee It thus follows that the pre‑emptor or the co‑sharer concerned can claim a right of pre‑emption only when a property as described under section 26‑F of the Bengal Tenancy Act is transferred by another co‑sharer tenant. If the right of the vendor appears, to have been transferred by the kabala then and then only his right of pre‑emption accrues. If the right! appears however not to have been assigned or transferred the right of pre‑emption cannot succeed. Whatever right appears to have been transferred to the vendee the pre‑emptor is entitled to get it b exercising his right of pre‑emption in terms of section 26‑F of the Bengal Tenancy Act the purchaser oz the vendee concerned being bound by the provision of the statute. It makes no difference the right of pre‑emption is said to be exercised against the purchaser in that sense. But whatever might be the nature of the right it is clear that the right accrues on a transfer and, therefore, the pre‑emptor is entitled to get the property transferred by the transaction in question. We do not, therefore think that the pre‑emptors concerned in the present case, namely, opposite‑parties Nos. 1 and 2 should get anything other than the right, title and interest which was purported to have been conveyed by the kabala in question. Therefore, we do not also think that the direction as contained in the ordering portion of the learned Subordinate Judge is in any way wrong or can be said to have prejudiced the interest of the vendor‑petitioner who is bound by the kabala itself.

12. For all these reasons we are of the opinion that the learned Subordinate Judge acted with no material irregularity in the exercise of his jurisdiction in holding that the kabala was in no way affected by the fraudulent decree as set up by the petitioner and that opposite‑parties Nos. 1 and 2 were entitled to pre‑empt in the manner claimed by them. 1n the result this Rule is discharged with costs. AKBAR, J.‑I agree. S. B/A. H. Rule discharged.