P L D 1967 Supreme Court 28 (PLP)

MUHAMMAD YAQUB ALI, J.‑The facts necessary to be stated for the purposes of this order are these. Abdul Motaleb, Respondent No. 1, purchased on 15th June 1956, a share in occupancy Raiyatl holding recorded in Khatian No. 271 described as Ka Schedule of land of mouza Hatiapara in the District of Noakhali from Manmohan Parsana & Rajani. On 18th September 1957, the Ka, Kha and Gha Schedules of the land in the khatian were put to auction sale in Debt Settlement Board Certificate Case and purchased by Aminullah, respondent No. 2, at Rs.

350. The sale was confirmed on 18‑11‑1957 and the certificate issued on 6‑12‑1957. The respondent No. 1 as a co‑sharer in the holding filed Miscellaneous Case No. 1 of 1958 under section 26‑F of the Bengal Tenancy Act to pre‑empt the auction sale after making necessary deposit. The Respondent No. 2 contested the suit on the grounds that (1) the holding being Mukarrari Raiyatl the sale was not pre‑emptible, and (2) by a compromise with the judgment‑debtors the sale had been set aside by order of the Court in Miscellaneous Case No. 11 of 1957‑

58. The learned Munsif who tried the suit held that the order setting aside the auction was. obtained collusively, but dismissed the suit on the finding that the land constituted Mukarrari Raiyati holding' exempt from the provisions of section 26‑F of the Bengal Tenancy Act. On appeal the Subordi nate Judge concluded that the holding was not constituted of Mukarrari Raiyati and remanded the suit for fresh decision according to law. In the meantime the other co‑sharers in the holding had filed Miscellaneous Case No. 189 on 21‑12‑1958 under section 26‑F of the Bengal Tenancy Act to pre‑empt the sale in favour of the respondent No. 1 on the basis of which he had laid his claim to Pre‑empt the auction :ale in favour of respondent No.

2. On the 23rd December 1959, the application was allowed and the appeal preferred from the order dismissed by the District Judge by order dated the 16th September 1960, recording therein that the respondent No. 4 had by a compromise assigned his 1/7th share in the holding to the respondent No. 1 which would not affect the pre‑emptive rights of 'the other co‑sharers. On the remand of the Miscellaneous Case No. 1 the Munsif accordingly joined them as defendants and allowed them to file written statement in which they claimed that the respondent No. 1 bad no subsisting interest in the holding to maintain the application for pre‑emption. The . plea was accepted and the application dismissed by the Munsif on the 3rd December 1960, on the ground that the kabala of the respondent No. 1 had been successfully pre‑empted by the co‑sharers in the holding and that the assignment of his 1/7th share in the holding by the respon dent No. 4 to the respondent No. 1 was a fresh transfer which could not be given retrospective effect. The respondent No. 1 then filed an appeal from the judgment and decree of the Munsif which was disallowed by the District Judge, Noakhali, on 3‑5‑1961, maintaining the finding that the assignment by the respondent No. 4 in favour of the respondent No. 1 of his 1/7th share in the holding on 16‑9‑1960 was a fresh transfer which did not confer on him the locus standi to pre‑empt the auction sale in favour of the respondent No.

2. Finally the respondent No. 1 filed a revision petition in the High Court of East Pakistan which was accepted by a learned Single Judge by order dated the 18th December 1963, from which this appeal is preferred on the finding that by virtue of the assignment of his 1 /7th share in the holding by the respondent No. 4 to the respondent No. 1 the latter had acquired a subsisting interest in the holding sufficient to maintain the application under section 26‑F of the Bengal Tenancy Act and that the rule of lis pendens was applicable to the cancellation of the sale by compromise , between the respondent No. 2 and the judgment debtors in the Debt Settlement Board Case. Leave to appeal was granted to Chandra Kumar Maladas one of the judgment‑debtors in the auction sale to consider whether after setting aside of the auction sale the High Court was justified A in allowing pre‑emption of the said sale and whether the doctrine of lis pendens applied to a pre‑emption case. It appears the auction sale in favour of respondent No. 2 was set aside by compromise with the judgment‑debtors after they had received notice of Miscellaneous Case No. 1 filed by the respondent No. 1 to pre‑empt the sale. By then the date for making an application under the Bengal Public Demands Recovery Act, 1913, had expired and none of the grounds specified in sections 23 and B 24 of the Act for setting aside an auction sale was made out. The order of the Court setting aside the sale on compromise was thus in disguise a re conveyance of the interest acquired by the respon dent No. 2 at the auction sale in favour of the judgment‑debtors. The High Court was right, therefore, in applying the doctrine of lis pendens to the so‑called cancellation of the auction sale. The second finding of the High Court, however, cannot be sustained. It was contended on behalf of the appellant that the assignment of 1/7th share in holding in favour of respondent No. 1 by the respondent No. 4 at the appeal stage was acquisition of anew interest on the 16th September 1960, which could not be given a retrospective effect and taken back to the date when the order for pre‑emption in favour of the co‑sharers was passed by the trial Court. The plea was ruled out summarily by the learned Judge on the view that before the District Judge had disposed of the appeal in Miscellaneous Case No. 1 of 1958, on 3‑12‑1960, the respondent No. 1 by virtue of the assignment by the respondent No. 4 made in his favour on 16‑9‑1960, became a co‑sharer to the holding. The rule enunciated by the District ,fudge that an applicant under section 26‑F of the Bengal Tenancy Act must be a co‑sharer tenant not only at the time when he files the application, but also at the time when the order for pre‑emption is made was quoted with approval, but its application to the case was negatived by holding that "indisputably the petitioner had a subsisting' interest on 2‑1‑1958: that is, the day when he filed his pre‑emption case. He also had subsisting interest may be very small on 3‑12‑1960, on the basis of an order dated 16‑9‑1960, passed in Miscellaneous Case No. 1 of 1958". There is an error here in quoting the number of . the case. Miscellaneous Case No. 1 was brought by the respondent No. 1 to pre‑empt the auction sale in favour of the respondent No. 2 while the case in which the sale in favour of the respondent No. 1 was pre‑empted was Miscellaneous No.

189. With reference to these two dates the learned Judge concluded that "the petitioner was, therefore, entitled under the law to obtain pre‑emption" omitting from consideration that a pre emptor must not only have a subsisting interest in the holding when he files the application under section 26‑F of the Bengal. Tenancy Act, but must continue to hold the selfsame interest to the date when the case is finally disposed of. No other construction can be placed on section 26‑F relevant portion of which runs as follows:‑ "26‑F. . . (e) . one or more co‑sharer tenants of the holding, a portion or share of which is transferred, may within four months of the; service of the notice under section 26‑G, apply to the Court for the said portion share to be transferred to himself or themselves." A co‑sharer means a person whose interest subsists throughout the course of the application to pre‑empt and not a person who held such an interest in the beginning, but lost it before its disposal.) Equally a fresh interest acquired at a later stage cannot be tacked on to the interest held in the beginning, but lost during the of the application. It follows that the purchase by the respondent No. 1 from Manomohan Prasanna and Rajani having been pre‑empted by the other share‑holders he did not have .subsisting interest in the holding to pre‑empt the auction sale in favour of the respondent No.

2. The appeal is, therefore, allowed and the order of the Munsif as well as of the District Judge passed in Miscellaneous Case No. 1 of 1958, restored. In the circumstances of the case there will, however, be no order as to costs. A. H Appeal allowed.