P L D 1967 Dacca 783 (PLP)

MURSHED, C. J.‑This application arises out of the following peculiar circumstances: Three separate holdings, namely, those represented in Khatians Nos. 69, 70 and 13, were sold by a single transaction for a total price of Rs. 7,

000. Petitioner claims and has, in fact, established that he is a co‑sharer in respect of holding No. 69 and made an application under section 26‑F of the Bengal Tenancy Act to exercise his right in the nature of pre‑emption under the said provision. Subsequently, lie made a similar application under the aforesaid section in respect of holding No. 70 claiming to exercise the aforesaid right The applications were filed in the Court of a Munsif in the District of Rangpur. It was later held by the learned District Judge that the total value of the land comprised under the said two applications would exceed the pecuniary jurisdiction of the learned Munsif and directed the same to be heard and disposed of analogously by a Subordinate Judge. The learned Subordinate Judge held that there could not be an analogous trial, as stated above, and proceeded to consider the applications separately. He took the view that there could be no partial pre‑emption of a transaction and dismissed the applications. Petitioner thereupon preferred an appeal which was heard and disposed of by an Additional District Judge of Rangpur. The learned Additional District Judge held that so far as holding No. 13 was concerned, it related to a korfa tenancy. We need not, however, consider this point because the petitioner did not claim to exercise the aforesaid right under section 26‑F of the Bengal Tenancy Act, in so far as the said holding was concerned. However, with regard to the two distinct applications made by the petitioner in respect of holdings Nos. 69 and 70 respectively, the learned Additional District Judge held that there could be no partial pre‑emption of the property and also took the view that the subsequent application made by the petitioner was also hit by the provision of Order II, rule 2, of the Code of Civil Procedure. He, therefore, dismissed the applications. Petitioner thereupon moved this Court and obtained the present Rule nisi. At the hearing of the application it was pointed out to us that although the sale took place by one transaction, it related to two distinct holdings, namely, holding No. 69 and holding No.

70. He, therefore, claimed that he was entitled to maintain two separate applications under the provisions of section 26‑F of the Bengal Tenancy Act. Mr. Kamaluddin Hossain, learned Advocate, who has opposed the application, has argued that the application should be sent back to the trial Court which should come to a definite finding as to whether the sale related to two distinct holdings or, at any rate, whether the holding No. 69 as also holding No. 70 were two distinct holdings. We do not think that we would be justified in taking this course because the petitioner has established that the holdings related to two distinct Khatians and two separate Jamas. There can, therefore, be no manner of doubt, whatsoever, that, taking these facts into consideration, the irresistible conclusion is that they represented two distinct holdings. It is conceivable that a holding represented in one Khatian may be subsequently split up in separate holdings. But no evidence was led in this behalf and it was not the case of the parties in the Court below that the Jamas were split up. We must hold that the application relates to two distinct holdings, namely, one appertaining to holding No. 69 and the other to holding No.

70. Our attention was drawn to two decisions of this Court (both by single Bench). The first is the case of Diam Hossain v. Haran Das Nama Sudra (P L D 1962 Dacca 458), in which it was held that a petitioner could maintain an application in respect of a distinct holding, even if the sale took place with regard to several other holdings by one single transaction on a consolidated price. The next decision is the case of Salimuddin Mondal and others v. Mohitosh Biswas (P L D 1963 Dacca 880). It is rather difficult to follow the reasonings of the aforesaid decision reported in 14 D L R 796 which may well happen to be an application relating to the same holding. However, we cannot agree with the decision in so far as it holds that, although an applicant under section 26‑F of the Bengal Tenancy Act has chosen to exercise his right in respect of one distinct holding, he is incompetent to do so, unless he makes an application with regard to the sale in its totality, the transaction being in respect of several holdings sold by one document at a consolidated price. In this connection we would quote the relevant portion of the section itself which gives a right to one or more co‑sharers to exercise a right in the nature of pre‑emption, in the following terms: Section 26‑F(1)(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 notice under section 26‑C, apply to the Court for the said portion or share to be transferred to himself or them selves." (The underlining* has been done by us). If we pause here for a moment, it would be patent that the right is given to the co‑sharer with reference to "the holding", that is to say, that the right accrues holding‑wise. It must necessarily follow that even if there has been a sale of several holdings by one transaction and by a single document, a co‑sharer has a right under the aforesaid section, in respect of a particular holding covered by the same document and of which he is proved to be a co‑sharer. It would be a misnomer to describe it as a partial transaction because, having regard to the language quoted above, it is a complete pre‑emption recognised by section 26‑F of the Bengal Tenancy Act as recited above. We, therefore, hold that the petitioner was competent to make two separate applications for pre‑emption, as stated above. The next question is: whether Order II, rule 2, of the Code of Civil Procedure, applies to a case like this? This rule may be quoted as follows:‑ "2. (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." 1t may be noted that the right conferred upon a co‑sharer under the provisions of section 26‑F of the Bengal Tenancy Act is a distinct right in respect of a distinct holding. A prayer may be made in one application relating to two distinct holdings. Conversely, two distinct applications may be made in two different periods (within the prescribed period of limitation). The provision of Order 11, rule 2, of the Code of Civil Procedure, has, therefore, no manner of application to a case like this. Petitioner was entitled to make two applications in respect of two distinct holdings at different points of time as they were both made within the period of limitation prescribed for the same. We, therefore, hold that the applications made by the petitioner are not hit by the aforesaid provisions of Order II, rule 2, of the Code of Civil Procedure. We now turn to the amount of money deposited by the petitioner. This point would be governed by the provisions of section 26‑F(2) of the Bengal Tenancy Act which may be quoted as follows:‑ "The application shall be dismissed unless the applicant or applicants at the time of making it, deposit in Court the amount of the consideration money or the value of the transferred portion or share of the holding, as stated in the said notice, together with compensation at the rate of ten per centum of such amount." Petitioner has deposited the value of the transferred share of the holding which he seeks to pre‑empt and has also complied with the requisites stated above. In these circumstances, we make the rule absolute and allow the application made by the petitioner without any order as to costs. ABDULLA, J.‑I agree. S. Q. Rule made absolute.