1. The petitioners in this ease claiming to be cosharer tenants of an occupancy holding applied for pre-emption under Section 26F, Ben. Ten. Act, in respect of certain portions or shares of the holding alleged to have been transferred by opposite parties 2 and 3 to opposite party 1. The application was resisted by opposite party 1 mainly on two grounds. It was contended, in the first place, that the petitioners had no interest in the holding, which originally belonged to one Misrabali and his brother Jumarali, and subsequently on an amicable partition between the brothers, came to belong exclusively to Misrabali, inasmuch as the petitioners were not the heirs of Misrabali at all, in particular petitioner No. 1 was not a son of Misrabali. Secondly, it was alleged that the opposite party 1 had already acquired the entire holding from Misrabali and the heirs of Jumarali by two conveyances, Exs. A2 and A3, the first of which was executed by Misrabali in 1921 and the other by the heirs of Jumarali in 1939.
2. The learned Munsif before whom the application was filed allowed it, overruling the objection of the opposite party that the petitioners were not the heirs of Misrabali. As regards the other objection that opposite party 1 had already acquired title to the holding by prior purchase, the learned Munsif held that this wa3 a question whioh could not be gone into. An appeal was taken against-the learned Munsif's order by opposite party 1. The lower appellate Court found that the petitioners were the heirs of Misrabali, but directed a remand to the learned Munsif in order that the question which he had left undecided should be decided. On remand the learned Munsif, however, declined to go into that question, relying on certain decisions of this Court, namely the decision of Henderson J. in Nibaran Chandra Bhattacharjee v. Hem Nalini Debi : AIR1936Cal167 , and that of M.C. Ghose J. in Jogendra Nath Chowdhury v. Golam Samdani ('37) 65 C.L.J. 472, and re-affirmed his previous order. There was a further appeal against this decision to the learned District Judge. The appellate Court found it necessary to make another remand. The matter again came back before the learned Munsif, where the same points were re-argued. This time the Court carried out the directions contained in the order of remand. Upon the evidence the learned Munsif found that the earlier conveyances on which the opposite party 1 relied in support of his title had never been acted upon, and that the two transfers on the basis of which the petitioners claimed to pre-empt were valid and operative. In that view, it was held that the petitioners were entitled to pre-empt. On appeal that judgment hag been now reversed. The learned Additional District Judge has set aside the finding of the learned Murfif regarding the previous hobalas, Exs. A2 and A3. Upon the evidence his conclusion is that these were bona fide transactions, as a result of which opposite party 1 had acquired title to the entire holding, so that there was no interest left in Misrabali which could devolve upon his death on opposite parties 2 and 3 or on the petitioners who were joint heirs with them. In the result the order of the learned Munsif has been set aside and the application for pre-emption dismissed with coats. It is against this judgment that the present rule has been obtained.
3. The main contentions of Mr. Bhagirath Chandra Das on behalf of the petitioners have been two-fold. In the first place, he maintained that in a proceeding under Section 26F, Ben Ten. Act, it was not open to the Court to go into questions of title. So long as the factum of the transfers in respect of which the application for pre-emption was made was not in dispute, the Court was bound to allow the application, provided the deposits and other formalities required by the section were complied with by the applicant for pre-emption. In support of this argument, reliance was placed on the two decisions reported in Calcutta Law Journal to which reference has already been made, as also on another judgment of Henderson J. in Sindhuram Panja v. Ambicacharan Santra ('41) 45 C.W.N. 658. It was pointed out that all that would follow from allowing an application under Section 26F would be to vest in the applicant such title as the transferring cosharer tenants had purported to transfer. If the transferring cosharer tenants had no subsisting title at the date of the transfer, nothing could possibly pass to the applicant for pre-emption. As was pointed out by Henderson J. in Nibaran Chandra Bhattacharjee v. Hem Nalini Debi : AIR1936Cal167 any right which the transferor might have in the property would remain entirely unaffected and it was only the right, title and interest of the transferee which would pass. From that point of view, it was argued that no prejudice could possibly arise to any party from allowing the application. The question of title, if any, acquired by opposite party No. 1 under the previous conveyances would remain open and could be raised by him in any subsequent proceeding. If, as a matter of fact, opposite party No. 1 had acquired title under those conveyances and were also in possession of the holding as alleged by him since the date of his purchase, then, though under Sub-section 8 of Section 26F, on the granting of the application for pre-emption, he would be deemed to be a raiyat ejected from his holding by proceedings for his ejectment he might still refuse to vacate, and if he did not vacate, the pre-emptor would necessarily have to sue him for possession, and in such a suit the question of title could well be raised.
4. On the face, of it the argument so formulated seems to derive some support from the cases relied on. At the same time one does not see that any useful purpose is served in every case by remitting the parties to future title suits, if the question to be investigated is not really such as the statute has expressly or by necessary implication excluded from the jurisdiction of the Court in a proceeding under Section 26F. Looking at the section as a whole, it is impossible to maintain that all questions of title are necessarily excluded from the purview of the Court. The right of pre-emption does not exist in the case of every kind of transfer of a portion or share of an occupancy holding. There are certain exceptions which are expressly specified in several clauses of Sub-section (1) of the section. Among those, Clause (a) obviously involves questions' of title. This clause provides that pre-emption would not lie in the case of a transfer to a person who is already a co-sharer in the tenancy by virtue of an interest which has accrued to him other than by the transfer in respect of which pre-emption is claimed. In other words, it is open to a person to defeat an application for pre-emption by showing that he already acquired an interest in a portion or share of the holding in dispute, in other words, by proving title to a share or portion acquired otherwise than by the transfer on the basis of which the application for pre-emption is made. Then again, Sub-section (11) also shows that the Court may have to go into the question whether the transfer on the strength of which pre-emption is claimed is such a transfer as is contemplated by the section, or is a simple or usufructuary mortgage or mortgage by conditional sale in respect of which no decree or order absolute or for foreclosure has yet been made. It is further to be observed that the right of pre emption conferred by Section 26F arises only if certain fundamental conditions are satisfied, apart from the formalities or deposits prescribed by the section. The right is a right given to 'one or more co-sharer tenants of the holding' and it arises only if a portion or share of the holding is transferred to a person other than a co-sharer. If, therefore, upon an application for pre-emption, an objection is raised that the petitioners do not fulfil the status of co-sharer tenants, the Court cannot very well decline to go into the question. The objection in the present case amounted to an objection of that kind. It was in effect, tantamount to saying that the title to the entire holding having previously passed to opposite party No. 1 under Exs. A2 and A3, the petitioners, who claimed to be co-sharer tenants were not co-sharer tenants at all, because if the entire holding had already passed to opposite party No. 1, there could not be any question of any co-sharer being left who would be competent to apply for pre emption. Then, again, the Court on an application under Section 26P should certainly be competent to go into the question as to whether the person in whose favour the transfer had been made was a cosharer tenant already otherwise than by such transfer.
5. Let us turn a little more closely to the facts of the present case. What was in substance the opposite party's defence to the petitioners' application? It was to the effect that the application for pre-emption was misconceived because upon the facts there could be no question of any transfer of any share or portion of the holding after the entire holding had been already conveyed to him by the previous kobalas by the former owners. It was no doubt true that in spite of that the opposite party No. 1 again purported to take a conveyance from opposite parties Nos. 2 and 3 but according to opposite party No. l's case that was done through mistake, it having been overlooked that, this particular holding which is Dag No. 884 had been already included in the previous conveyances in their favour, Exs. A-2 and A-8. If then those conveyances were genuine transactions, the defence of the opposite party would be a complete answer to the application for pre-emption. I see no reason why that defence could not be gone into, as, in fact, it went to the root of the matter, if one might put it that way. As regards the cases relied on by Mr. Bhagirath Chandra Das it is sufficient to say that no hard and fast rule can be laid down. It will all depend on the nature of the question which is raised between the parties. It may be that if it involved complicated questions of title, the Court would be well advised in relegating the parties to a regular title suit for the adjudication of such questions, but if it was only a question of the maintainability of the application which could be easily disposed of in the proceeding under Section 26-A, there is no reason why the Court should decline jurisdiction. By way of illustration, reference may be made to the judgment of Edgley J., in Basanta Kumar Churnakar v. Durganath Pal : AIR1939Cal432 where the question whether a transaction which, on the lace of it, purported to be a deed of sale had really been intended to be a mortgage and not a deed of sale, was gone into in a proceeding for pre-emption. On those grounds I must overrule the first point raised on behalf of the petitioners.
6. The second point raised was one of defect of parties, but there is very little substance in this. The alleged defect of parties is said to arise from the fact that the heirs of one of the transferees were not made parties to the Rule, and no substitution has been made in place of one of the petitioners who died. So far as the transferee is concerned, a transferee is not a necessary party in a pre-emption proceeding under Section 26-F, and so far as the heirs of one of the deceased petitioners are concerned, those heirs are already on the record, though no note was made of the fact. The second objection must consequently be also overruled.
7. On behalf of the opposite parties Mr. Nirmal Chandra Nundy has further pointed out that it was too late for Mr. Das at this stage to raise the question which he had raised in this proceeding. Mr. Das's client had acquiesced in and accepted the order of remand made by the lower appellate Court by which that Court directed the learned Munsiff to come; to a finding as to whether the previous conveyances, Exs. A-2 and A-3, were genuine and bona fide transactions. If that order of remand was an appealable order, no appeal had been preferred, and under Section 105(2), Civil P.C., the propriety of the remand order could not be challenged at a later stage on an appeal against the final decree. If, on the other hand, it was maintained that the order of remand was open to revision the fact that no proceeding was taken in revision would similarly shut out the petitioners from challenging the order of remand at this stage. The terms of Section 105(2) might not apply in terms, but the same principle should be held to be applicable. That principle was that of finality. A party cannot be allowed to stand by without taking recourse to the remedy which the law provides, and then at a later stage, when the matter may be supposed to have become final, try to re-open it. In the view I have taken on the first point raised by Mr. Das, it is not necessary for me to decide this question finally in these proceedings. I am merely content to observe that there seems to be a good deal of force in what has been said by the opposite party. The result is that the Rule is discharged with costs, hearing-fee two gold mohurs.