P L D 1962 Dacca 545 (PLP)

K. A. Bakr for the Opposite Party. This Rule was obtained against the judgment and order passed in Miscellaneous Appeal No. 377 of 1959 by the learned Subordinate Judge, dismissing an application for pre‑emption under section 96 of the East Bengal State Acquisition and Tenancy Act which had been allowed by the learned Munsif.

2. As many as 8 plots had been transferred by certain persons in favour of opposite parties Nos. 1 and 2, by a kabala dated 9‑4‑

57. Petitioner No. 1 Makhan Lal Nag claimed to be owner of certain lands contiguous to, five plots out of eight conveyed by the kabala. Those five plots were plots Nos. 2621, 2622, 2623, 2625 and 2627. Subsequently, opposite parties No. 20 and 27 appeared and got themselves transposed as co‑peti tioners 2 and 3 respectively. Co‑petitioner No. 2 Ramani Kanta Aich claimed pre‑emption with respect to plot No. 2623 and co‑petitioner No. 3 Kartik Chandra De claimed pre‑emption with respect to plot No. 2627 on a similar ground of contiguity. At the time of the trial it appeared that the claim on behalf of Kartik Chandra De was not pressed, presumably for the reason, as it transpired in course of evidence that he had died during the pendency of the case. The petitioner Makhanlal Nag at that stage confined his claim only to R. S. dag Nos. 2621, 2622 and 2625 and gave up his right of pre‑emption with respect to R. S. dag Nos. 2623 and 2627. Co‑petitioner No. 2 pressed his claim with respect to R. S. dag No. 2623. The learned Munsif allowed the claim of pre‑emption in favour of both the petitioners Makhanlal Nag and Ramani Kanta Aich, overruling the contention that the proceeding was bad for defect of parties. On an appeal preferred by the transferees opposite parties Nos. 1 and 2, the learned Subordinate Judge took the view, by reason of the fact that Kartik Chandra De's heirs had not been brought on record, that there was defect of parties and in that view of the matter allowed the contention of the transferees and dismissed the claim of pre‑emption.

3. Mr. D. C. Bhattacharjee contends that in a proceeding like this as initiated under section 96 of the East Bengal State Acquisition and Tenancy Act, it was not necessary to bring on record the heirs of Kartik Chandra De who claimed pre‑emption with regard to plot No. 2627, inasmuch as the present petitioners were no longer interested in that particular plot. He has, further contended that the persons named in the written objec tion as necessary parties were found by the learned Munsif as having no land contiguous to the properties in suit but the learned Subordinate Judge without considering the material evidence in that connection has come to the finding that the pro ceeding was bad for defect of parties.

4. Mr. Bakr, the learned counsel appearing for the purchaser opposite parties Nos. 1 and 2, has contended in reply that the finding of the learned Subordinate Judge that the proceeding was bad for defect of parties was conclusive and in the absence of the heirs of Kartik Chandra De and also in the absence of the persons named in the written objection was not sustainable in law.

5. It is not disputed that the present application for pre‑emp tion was brought by a person who claimed to hold land contiguous to the land transferred and that as such according to the provision in the second part of clause (2) of section 96 of the East Bengal State Acquisition and Tenancy Act, all the co‑sharers tenants of the holding and all the tenants holding land contiguous to the' land transferred and the transferees are necessary parties. The question, however, is as to whether in a case where eight plots appear to have been conveyed, all the tenants holding land contiguous to such eight plots should have been made parties or not. It seems quite clear on a reference to the language em ployed in clauses (1) and (2) of section 96 of the said Act, that the intention of the legislature was to give an opportunity to the persons who might otherwise claim pre‑emption in regard to the plots sought to be pre‑empted by the applicants. As such for our present purpose, the five plots originally sought to be pre- empted were the most material plots of land transferred. It is not only the lands which must appear to have been conveyed by the particular deed of sale but it must also appear that such land is capable of being claimed by way of pre‑emption, on the ground of contiguity as in the present case. Applying that test there can be no doubt in my mind that those persons tenants who held land contiguous only to the five plots which were the subject matter of the present proceeding, were entitled to be made parties and without them, the proceeding should be deemed to be bad for defect of parties.

6. The further question, however, arises as to whether it is necessary to implead all such persons even if it transpires that the claim of the pre‑emptor is not sustainable on the ground of contiguity in regard to some of the plots included in the schedule for pre‑emption. It is quite likely that a particular claimant might think that he is a tenant holding land contiguous to a particular plot conveyed by a kabala, although, in fact it might turn out to be a case of unfounded claim. In my view, there is a scope for consideration of the fact that in such a case persons or tenants holding lands, contiguous to such plot are not necessary parties; that is to say, if it appears that although a, person has claimed five plots by way of pre‑emption on the ground of contiguity, yet in fact, there is no evidence of con tiguity, with regard to some of them. Then he is not required under law to implead such persons as might hold land con tiguous to such plots having no contiguity, in the instant case the learned Advocate for the petitioner submits that of the five plots, the petitioner No. 1 confined his claim only to three namely, 2621, 2622 and 2625 and. the petitioner No. 2 confined his claim to plot No. 2623. Because, as he has submitted, the petitioners had no land contiguous to the plot No. 2627 and as such the heirs of Kartik Chandra De were .not necessary parties. This raises more or less a question of fact. It also raises a question of principle. Mr. Bhattacharjee has been fair enough to concede that a partial pre‑emption is note permissible in law, It is well settled that if out of five plots' originally claimed by the; petitioners by way of pre‑emption, the petitioner was allowed to press only with respect to three, although he was otherwise entitled to claim pre‑emption with regard to all th five plots, the petitioners' case should be hit by the bar of rule~ of partial pre‑emption and as such the entire claim should fail.

7. It seems the Courts below have not approached the question in that way. It is necessary to investigate as to whether in fact the petitioners have any land, contiguous to plot No. 2627 or any other plot covered by the kabala under pre‑emption, and whether in spite of that position, the petitioners were trying to seek a partial pre‑emption in an indirect manner just to avoid the necessity of bringing on record the heirs of Kartick Chandra De. If, however, it appears that excepting the three plots 2621, 2622 and 2625, the petitioner No. 1 had no land contiguous to any other plots, then certainly he cannot be hit by the rule of partial pre‑emption. Similarly the petitioner No. 2 cannot also escape the Rule of partial pre‑emption. It is true that the learned Subordinate Judge has found that the proceeding was bad for defect of parties also on the assumption that persons named in the petition of objection had land contiguous to the plots covered by the kabala under pre emption. But he has not found as to who the person holding land contiguous to which plot. It is necessary to investigate as to who were the persons or tenants holding land contiguous to the plots claimed by way of pre‑emption or to the plots covered by the kabala under pre‑emption and sought to be pre- empted. These things require a detailed investigation. It appears that the Courts below have not directed themselves to the consideration of this aspect of the question. It is difficult to dispose of this matter without having precise findings on these questions. I am, therefore, inclined to think that the matter should be investigated further in the light of the observations made above.

8. The result, therefore, is that this Rule is made absolute. The judgment and order as passed by the Courts below are set aside and the case is remitted to the trial Court for further investigation in the light of the observations made above. The parties will be permitted to adduce further evidence. Each party is directed to bear its own costs through up to this stage. Future cost will abide the result. K. B./A. H. Rule made absolute.