P L D 1962 Dacca 554 (PLP)

CHOWDHURY, C. J.‑This appeal arises out of an order passed by the Subordinate Judge, First Court, Barisal on an application for pre‑emption under section 96 of the East Bengal State Acquisition and Tenancy Act.

2. The facts of the case, shortly stated, are as follows: Respondents Nos. 2 and 3 sold the land of khatian No. 135 having a jama of Rs. 36‑10‑0 to appellants Nos. I to 4 by a kabala dated 14‑3‑58 for a sum of Rs. 10,

000. Respondent No. I filed an application for pre‑emption of the land transferred by respondents Nos. 2 and 3 to the appellants on the ground that he is the owner in possession of the land of khatian No. 270 which formerly formed part of the same jama with the land of khatian No. 135, so he is a co‑sharer of the original holding and as such entitled to pre‑empt the land transferred under section 96 of the East Bengal State Acquisition and Tenancy Act.

3. The defence of the appellants in the pre‑emption case was that the land of khatian No. 135 from before the time of R. S. Khatian formed a separate holding on a separate jama and recorded as such in the R. S. record‑of‑right and hence respondent No. 1 could not have been co‑sharer to claim pre -emption under section 96 of the Act. Respondent No. I made a further case in his application for pre‑emption that he is a holder of the land contiguous to the land of khatian No.

135. So he is also entitled to pre‑empt under section 96 of the Act as holder of contiguous land.

4. The learned Subordinate Judge who dealt with the application found that the land of khatian No. 270 and that of khatian No. 135 originally constituted one holding. It is alleged by the appellants that there was a partition and on account of that partition the land of khatian No. 135 has been separated from the original holding. According to the learned Subordinate Judge there is no evidence that the landlords consented to this splitting up of the original holding. Therefore, the learned Subordinate Judge held that it formed part of the same original holding and respondent No. I was a co‑sharer and allowed the application for pre‑emption.

5. As to the maintainability of the claim of the respondents for pre‑emption on account of this holding of contiguous land, the learned Subordinate Judge did not come to any finding though he held that the application was maintainable both as a co‑sharer and as a holder of land contiguous to land transferred. Hence this appeal by the transferees opposite parties Nos. 1 to 4.

6. It is contended by Mr. Mati Lal Acharjee, the learned Advocate for the appellant, that the learned Subordinate Judge is absolutely wrong in holding that original holding was not split up in law as there was want of consent of landlord, as there was no evidence of payment of rent on the basis of the entry in the record‑of‑right, namely, khatian No. 135, Exh. C (1). The fact that the record‑of‑right has been prepared with notice to all persons concerned it cannot for a moment be held that the landlord was not a consenting party or is not aware of this creation of the separate holding on a jama of Rs. 36‑10‑0 in respect of the land recorded in khatian No.

135. Further there is a presumption of the correctness of the entry in the record of‑right and until and unless it is proved that the entry is not correct it is presumed to be correct. Further the land of this khatian as well as the land of khatian No. 270 have been recorded as under the same landlords Beni Madhab and others in khatian No.

20. Both khatian Nos. 135 and 270 are recorded under the same landlord on different jamas. Therefore, it is not correct for the learned Subordinate Judge to hold that the original holding was not split up creating two new holdings with the consent of the landlord, particularly in view of the proviso to subsection (1) of section 88 of the Bengal Tenancy Act which provides as follows: ‑ "If there is proved to have been made in any landlord's rent roll and entry showing that any tenure or holding has been divided or that the rent payable in respect thereof has been distributed, such landlord may be presumed to have given his express consent in writing to such division or distribution." Therefore, one cannot resist a conclusion that the land recorded in khatian No. 135 under the landlord Beni Madhab and others at a jama of Rs. 36‑10‑0 is a separate holding which came into existence long before the disputed transfer and that respondent No. 1 is not a co‑sharer of this holding to be entitled to claim pre‑emption.

7. There is another defect in the claim of the pre‑emption of respondent No.

1. Under section 96 of the East Bengal State Acquisition and Tenancy Act no co‑sharer shall have a right to purchase unless he is a person to whom transfer of the holding or the portion or share thereof, as the case may be, can be made under section

90. Section 90 of the said Act provides: ‑ "Notwithstanding anything contained in any other law for the time being in force, no person shall, after the commencement of this part, be entitled to purchase or otherwise acquire, except in accordance with the provisions of this part, any quantity of land which added to the total quantity of land already held by him for himself and his family exceeds one hundred standard bighas." In this case no evidence has been led to establish that respondent No. 1 has got the right to purchase the land transferred under this section. It is surprising to see how the learned Subordinate Judge without establishment of that fact granted pre‑emption to the petitioner, the present respondent No. 1.

8. Mr. S. C. Bole, the learned Advocate for the respondent, who appeared in the early part of the hearing of this case tried to make out a point that it was never challenged. It is not a question of challenging or not challenging his status. Before he is entitled to get pre‑emption he is to prove all the requirements under section 96 of the Act because the wording of the section is "no co‑sharer . . . . . shall have the right tot purchase under this section unless he is a person to whom transfer of the holding or the portion or share thereof, as the case may be, can be made under section 90". In fact they in their written objection filed in the lower Court definitely asserted that the respondent petitioner is owner in possession of land more than 100 bighas and denied the allegation of res pondent.

9. As to the point of limitation, on the face of the appli cation for pre‑emption, it is not off time, that is beyond four months from the date of the transfer. In order to bring his application within four months from the date of knowledge the petitioner respondent alleged that he was not aware of the transfer till he was informed by some persons mentioned in his petition. To counteract the evidence of those gentlemen the purchasers asserted that soon after the purchase in the month of Falgoon they went to cultivate the land. It was cultivating season. It is admitted that the petitioner respondent is holder of the land contiguous to the land transferred. There is no reason why he should not know about the fact of cultivation of the disputed land by the purchasers. The learned Subordinate Judge is of the opinion that until and unless the registered kabala is taken back from the Registration Office it is not possible for them to go to the land to cultivate it which is contrary to what generally happens. Generally after payment of the full consideration and execution of the kabala (where it is stated that the land has been given in possession of the transferees) the transferees take possession of the land and they never wait for getting back the registered kabala from the Registration Office. In the kabala it is definitely stated. "From to‑day you being the rightful owner of the property sold to you being fully armed with all our right, title and ' interest by right of purchase from us, you must happily own, possess and enjoy the same for all time to come by mutating your names in place of ours, in the Sherista of landlord." This reasoning of the learned Subordinate Judge is apparently faulty and he should not have relied on the evidence of P. who happens to be the purohit (family Brahmin) of the petitioner respondent and, admittedly, who is interested in the case of the petitioner respondent.

10. In these circumstances, we have got no hesitation in holding that the application is also barred by limitation not having been filed either within four months from the date of the execution and registration of the kabala dated 14‑3‑58 respec tively or within four months from the date of the knowledge of the petitioner‑respondent.

11. The result, therefore, is that we allow this appeal with costs, set aside the judgment and order of the learned Sub ordinate Judge and dismiss the application for pre‑emption with costs. M. R. KHAN, J.‑I agree with my lord, the Chief Justice. Appeal allowed.