P L D 1965 Dacca 548 (PLP)

Against this decision, the present petitioners preferred an appeal without impleading the co‑applicants as parties thereto, The co‑applicants themselves also did not prefer any independent appeal against the decision of the trial Court dismissing their claim. On the other hand, they appear to have withdrawn the amount deposited by them ten days or so after the filing of the said appeal by the petitioners. The appeal was resisted by the opposite‑party No. 1 alone on different grounds which are as follows:‑ "(a) The appeal is not maintainable as the co‑petitioners have not been impleaded in the same; (b) The kabala in respect of which the pre‑emption is claimed is different from the kabala Exh. 1(a) and so the application for pre‑emption is not maintainable against the respondent No. 1; (c) It appears from the kabala Exh. 1(a) that the respondent No. 1 is the sole recipient, but the appellants have illegally deposited the amount of consideration and compensation in favour of the respondents Nos. 1‑3 and as such the deposit which is required to be made under the law fell short of the statutory limit." The learned Subordinate Judge, however, took up only one point for consideration, namely, whether the deposit in the name of respondents Nos. 1 to 3 instead of respondent No. 1 alone is a formal defect and if so whether it could be removed after correcting the challan and deposit register and having found it in favour of the petitioners allowed the appeal and reversing the judgment and order of the trial Court also allowed the petitioners' claim for pre‑emption. In making his order he directed inter alia:‑ "Let the names of O. P. Nos. 2 and 3 be expunged from the record, relevant challan and register O. P. No. 1 do get the money in deposit treating it to be a deposit in his name alone." This was brought up in revision before this Court which ultimately remanded the appeal for rehearing with a direction that the lower appellate Court should consider and decide all the points raised by the contesting respondents. Pursuant to this the lower appellate Court having reheard the appeal has held that the co‑petitioners are co‑sharer tenants and as such entitled to seek rateable pre -emption and that the application filed by them to come in as co -applicants was also within time. He is further of the opinion that the presence of the co‑applicants in the appeal was necessary to decide "whether the petitioners are entitled to full pre‑emption or part pre‑emption." In other words, he held that the appeal filed by the petitioners without impleading the co‑applicants was incompetent. At the same time he also appears to have held that: " . . . . in view of the subsequent development due to the non‑impleader of the co‑petitioners in this appeal and also due to the withdrawal of the amount deposited by the co‑petitioners it is no longer necessary to ascertain the shares and the amount payable by the petitioners and the co‑petitioners in proportion to their share." On the above findings he ultimately dismissed the appeal and confirmed the order passed by the trial Court. As regards the first two points arrived at by the learned Subordinate Judge there appears to be no dispute and on a consideration of the materials on record I am also inclined to affirm the same as sound and correct. The learned Subordinate Judge has, however, held that the co‑applicants were necessary parties to the appeal but to this proposition I find myself com pletely unable to subscribe. It is no doubt true that the co- applicants, being co‑sharers in respect of the occupancy holding, to which the disputed parcel of land appertains, may be said to have been proper parties but to fail to see how they can be regarded as necessary parties in the sense that their non joinder would render the appeal incompetent or the claim of the petitioners untenable. Under the law as embodied in section 26F of the Bengal Tenancy Act any co‑sharer tenant with respect to an occupancy holding is entitled to seek pre‑emption in accordance with the provision of that section whenever there is a transfer of any land appertaining to that occupancy holding by a co‑sharer tenant in favour of anyone other than those specifically exempted by the said section itself. There is nothing therein to support the proposition that such a co‑sharer making an application for pre- emption is bound to implead therein all the remaining co‑sharer tenants as well. Considerations of finality would undoubtedly dictate the joinder of the remaining co‑sharers also in accordance with the juristic principle of universal application that all the persons interested in the subject‑matter of a litigation should be made parties thereto. That however, is a rule of propriety and means nothing more than this that the other interested person are mere proper parties and not necessary parties. In other words, it will be convenient and also conducive to the principle of finality of litigation to bring on record all interested person but this cannot be extended to imply that they are necessary parties and the litigation must fail unless they are made parties. In this connection reference may also be made to the statutory rule embodied in the Code of Civil Procedure laying down in mandatory terms that no suit, which undisputedly covers a proceeding of the present nature as well, shall fall for mere non. joinder of party. That may happen only when the person not impleaded is a necessary party, that is, a party in whose absence the relief claimed in the litigation concerned cannot at all be given to the plaintiff or petitioner as, the case may be, I cannot therefore, accept the view taken by the learned Subordinate Judge that the co‑applicants were necessary parties to the appeal or that the appeal is bad because of their non‑joinder. On the other hand, I am of opinion, that the appeal was quite competent with the parties actually on record, that is, even in the absence of the co-applicants. The next important question that arises for consideration and has in fact been argued vehemently before me is the sufficiency or validity of the deposit made by the petitioners. As has already been stated above, the petitioners made two mistakes in their application the first was that they mentioned Kalipada instead of Shanti Kumar son of Kalipada as the vendor. The second mistake committed by them was that they made their statutory deposit to the credit of three persons whom they described at the vendees instead of making the same to the credit of the opposite‑party No. 1 who was in fact the sole vendee or recipient of the document in question. Regarding the first, it may be pointed out that in spite of the, fact that Kalipada father of Shanti Kumar instead of Shanti Kumar was mentioned as the vendor, there was no mistake about the particulars of the kabala in so far as the date of its execution and the subject‑matter included in it were concerned. Obviously, the opposite‑party No. 1 fully understood what was intended to be pre‑empted by the petitioners. As the learned Subordinate Judge has rightly observed, "there is no evidence on either side that there is any other kabala executed by Kalipada in favour of the opposite, parties Nos. 1 and 3". It thus appears to me to be clear, as hat also been held by the learned Subordinate Judge, that what the petitioners actually wanted to pre‑empt was the subject matter of the disputed kabala Exh. 1(a) and not of any other document, In this view of the matter, therefore, I am inclined to agree with the learned Subordinate Judge and accept his finding to the effect that in spite of the aforesaid mistake committed by the petitioners, obviously due to their failure to consult the copy of the relevant document before filing the application under section 26‑F of the Bengal Tenancy Act, the kabala Exh. 1(a) is the kabah which the petitioners sought to pre‑empt and that there is no other kabala in existence in respect of the disputed land to be l5 empted by them. This brings us to the sufficiency or validity the deposit already referred to above. As I have already observed, the mistake committed by petitioners with respect to the executant of the relevant document as well as the recipients thereof is presumably due to their fair to consult the copy of the document before filing the application and that must have misled them to make the deposit to the credit of all the three opposite‑parties instead of making the same to credit of the opposite‑party No. 1 alone, as required under the law. The fact, however, remains that the deposit made by the petitioners was adequate as well as within time and the entire amount was thus available to the Court, which was, therefore, in a position to direct payment of the same to the person who might be adjudged by it as the rightful recipient or claimant and that appears to be what the learned Subordinate Judge hearing the appeal in the first instance had held and also directed, as has already been pointed out above. To me, it appears rather inconceivable that this slight mistake of a technical nature, which must have been made under some sort of a bona fide impression even though that is not certainly correct, can invalidate the deposit so as to render the application filed by the petitioners for pre‑emption untenable. In this connection I may refer to an unreported decision of this Court in Civil Revision Case No. 410 of 1962 decided on 27th of February 1964, in which too the point raised, though not the same, was similar, what happened therein is that on the application filed by one of the co‑sharer tenants under section 26F of the Bengal Tenancy Act some others were impleaded at their instance as co‑applicants. They also made the requisite deposit but that was done to the credit of the transferee opposite‑party and not to the credit of the applicant as required under section 26‑F subsection (4)(b) of the Bengal Tenancy Act. In these circumstances having referred to the said defect relating to the deposit I observed and held as follows:‑ "Nevertheless the applicants made the deposit, which was adequate, within the time and the requisite amount in full was thus available to the Court for payment to the applicant and it was also competent to direct such payment in spite of the fact that the amount stood to the credit of the opposite‑party No.

1. In this view of the matter the defect, referred to above, may at most be said to be an irregularity but not, in my opinion, such as may invalidate the deposit and thereby render the application of the opposite‑parties Nos. 2‑4 incompetent." Having heard the learned Advocates at length I am not at all persuaded to change the view taken by me in the above case. In my opinion, therefore, the deposit, in spite of the above mentioned irregularity attaching to it, may be regarded as sufficient and valid to entitle the petitioners to the relief claimed by them and accordingly I overrule the contention to the contrary urged on behalf of the opposite‑party. Before conclusion I may observe that if the petitioners are otherwise found entitled to the relief claimed by them as they have already found by me to be, no question of partial pre-emption, as appears to have worried the learned Subordinate Judge, can at all arise. Under section 26‑F of the Bengal Tenancy Act, pre‑emption must always be full and not partial. Thus even in a case where the applicant, for any reason, chooses to abandon or withdraw his claim thus leaving only the co‑applicants seeking partial pre‑emption proportionate to their share, the latter, namely, the co‑applicants can have no deposit of the requisite balance the subject‑matter of the transfer in question in full by way of pre‑emption. It is not a question of mere entitlement with an option. As the scheme of the section clearly indicates, it is not in fact not open to them to ask for a mere part of the said subject‑matter in proportion to their share. So far as the present case is concerned, this stands on a far stronger footing inasmuch as the successful party is the applicant himself who had originally prayed for pre‑emption in full on deposit of the amount required for the same. The result, therefore, is that the rule is made absolute, the order of the learned Subordinate Judge is set aside and the Miscellaneous case is allowed. The petitioners will get the land involved by way of pre‑emption. The right, title and interest of the opposite party No. 1 shall vest in the petitioners free from any encumbrance created after the transfer in respect of the land pre‑empted. Opposite‑party No. 1 Kazi Azaharuddin Ahmed shall get the entire amount in deposit treating it to be a deposit in his name alone. Regard being had to the circumstances, how ever, I leave the parties to bear their own costs throughout. S. Q. Rule made absolute.