G.N. Das, J.
1. This Rule was obtained by the petitioner who is a purchaser of an occupancy holding under a Kobala dated 17-3-1947 against an order of the lower appellate court allowing an application for pre-emption under Section 26 (F), Bengal Tenancy Act.
2. Mr. Mukherjee, appearing for the petitioner, contends that the lower appellate court was wrong in holding that the petitioner was estopped from stating that there was no sub-division of the parent, jama. To appreciate the legal position it may be stated that admittedly there was a parent jama of Rs. 7/14/-and odd which was held by Belat Ali, Ejahar Ali and Mojahar Ali. It is admittedly an ancestral jama. According to the opposite party the share of Belat Ali was eight annas and the shares of Ejahar and Mojahar were each four annas in this jama. The petitioner, who is admittedly a co-sharer in the ancestral jama, purchased the shares of some of the heirs- of Belat Ali. In the Kobala it is recited that there was kharij of the ancestral jama and on kharij Belat Ali was in possession of a jama of Rs. 4/- and odd annas. The pre-emptor, who is opposite party No. 1 is one of the sons of Belat Ali. His case is that there was a sub-division of the ancestral jama on the 12th Aswin, 1345 B. S. and the jama of Rs. 4/-and odd annas was carved out of the ancestral jama and as co-sharer in this jama he is entitled to pre-empt. If these facts are correct then the application for pre-emption has to be allowed. It would appear, however, that the alleged kharij was evidenced by a Dakhilas Ex. 2 (k) dated the 12th Aswin 1345 B. S. The pre-emptor admitted that the kharij was granted by the Gomostha and that no application in writing was made to the landlord who happens to be a receiver. The Dakhilas Ex. 2 (k) itself recites that the Gomostha had no power to grant kharij. The conclusion, therefore, follows that the kharij was an unauthor'sed one so far as the landlord is concerned. In addition to this, as the Trial Court had pointed out, Ejahar and Mojahar had a sister, who is admittedly alive. As the iama is ancestral one the sister would also have a share. There is nothing on the record to show that consent was given on behalf of the sister. There is also nothing to show that Ejahar and Mojahar consented to the sub-division. All the tenants did not as such consent to the sub-division. The subdivision also is not in accordance with the share of Belat and there is no consent in writing on behalf of the landlord or of all the tenants in the holding. The C. S. record recorded that the ancestral jama is of Rs. 7/14/-and odd and it lays on the pre-emptor opposite party to prove the sub-division. In my opinion this he has signally failed to do. The lower appellate court was also of opinion that the purchaser is estopned from showing that there was no sub-division in view of the recitals in his own purchase deed that there was a kharij. In my opinion the legal requirements under Section 88, Bengal Tenancy Act as amended in 1938 could not be got rid of because of the recitals in the kobala. There is no change of position so far as the preemption is concerned, no lease of estoppel, therefore, arises.
3. The result therefore, is that the Rule is made absolute and the order of the lower appellate court is set aside arid that of the trial court is restored with costs in this court and the lower appellate court. Hearing fee of this Rule is assessed at one gold mohur.