B.K. Mukherjea, J.
1. This rule is directed against an appellate judgment of the Additional District Judge of Burdwan, dated 18th May 1943, reversing an order of the Munsif, Third Court of that place made in a proceeding under Section 26F, Ben. Ten. Act. The facts material for our present purposes may be shortly stated as follows: The property in dispute is a tank which appertains to a holding recorded in Khatian No. 825 of mouza Nityanandapur in the District of Burdwan, and the total rent payable in respect of the holding is Rs. 20-8-0 a year. On 27th June 1942, a share in the tank was sold to Sankaracharjya Mullik, the petitioner in this rule, by occupation parties 3 to 6 who were some of the cosharer landlords holding the tank along with other cosharers by purchase from the original tenant. In the kabala, the property was described as part of an occupancy holding. Thereupon opposite party 1 who had also acquired a share in the tank by purchase from some of the cosharers of the petitioner's vendors presented an application in the Court of the Third Munsif at Burdwan claiming his right to repurchase the share purchased by the petitioner, under Section 26F, Bengal Tenancy Act.
2. The application was resisted by the petitioner inter alia on the ground that the lands in question did not constitute an occupancy holding at all, and consequently the provisions of Section 26F, Ben. Ten, Act, were not attracted to the facts of this case. The Munsif who tried the case accepted this contention of the petitioner and dismissed the application of opposite party 1 under Section 26F, Ben. Ten. Act. The Munsif held on the basis of the entries in the C.S, records that the holding though originally constituting an occupancy jote was purchased by some of the cosharers landlords prior to 1928, and these landlords purchasers held the same on payment of proportionate rent to their other cosharers as provided for in Section 22 (2), Ben. Ten. Act, as it stood before the amendment of 1928. As this interest could not be described as that of an occupancy raiyat, the petitioner, it was held, had not really purchased any portion of an occupancy holding, and consequently the provisions of Section 26F, Ben. Ten. Act, did not apply. The Munsif further held that the words 'raiyati sthitiban' occurring in the conveyance of the petitioner were inserted without his knowledge and he was not estopped in law from showing that the interest purchased by him was not that of an occupancy raiyat.
3. There was an appeal taken against this decision by opposite party 1 to the Court of the District Judge of Burdwan. The learned Additional District Judge who heard the appeal reversed the judgment of the Munsif and allowed the application for pre-emption being of opinion that as the kabala described the property to be an occupancy holding and the proceeding under Section 26F, Ben. Ten. Act, was started on the basis of this kabala, the purchaser was not entitled to raise the question that the holding was something other than what it was described to be in the kabala. It was held that this was a question which was outside the scope of enquiry under Section 26F, Ben. Ten. Act. It is the propriety of this decision that has been challenged before us in this rule.
4. We may take it to be fairly well settled that when a purchaser purchases a property which is described specifically as occupancy holding in the document of transfer and gives notice to other cosharer-tenants under Section 26C, Ben. Ten. Act, and on the faith of the representation contained in the notice, a cosharer-tenant applies for pre-emption under Section 26F, Ben. Ten. Act, and deposits the money which is required to be deposited under that section, a plea of estoppel can legitimately be taken against the purchaser. This was held to be law in regard to a proceeding for pre-emption by the landlord under Section 26F, Ben. Ten. Act, as it stood prior to the amendment of 1928; vide Surendra Narayan v. Notan Behari : AIR1931Cal483 and Mohini Mohan Mitra v. Badha Sundari Dasi. : AIR1935Cal481 ; and the same principle has been held applicable in the case of an application for repurchase by a cosharer-tenant under Section 26F, Ben. Ten. Act, as it stands at present: vide Maltibala Deb v. Nabendra Chandra : AIR1944Cal253 . If, however, the plea of estoppel is taken against the purchaser, it is certainly open to him to meet it on any ground upon which such a plea could be defeated in law. In other words, he is entitled to show that the party pleading estoppel had knowledge of the real state of affairs and hence could not have been misled by any representation made by the purchaser. He can also show that the plea of estoppel could not be given effect to as it would defeat the provisions of a statutory enactment. These questions, therefore, would be within the scope of an enquiry by the Court in a proceeding under Section 26F, Ben. Ten. Act. The enquiry cannot be said to be limited only to matters which are specified in Sub-sections (1) and (2) of the section. See in this connexion Mohini Mohan Mitra v. Badha Sundari Dasi. : AIR1935Cal481 , Brojendra Kumar v. Symannessa Bibi : AIR1934Cal830 and Adhar Chandra v. Gour Chandra : AIR1935Cal153 . Taking this to be the correct view of law, the decision of the lower appellate Court cannot, in our opinion, be supported. The learned Judge has not discussed the question of estoppel at all. He has not considered whether, in fact, there was a representation made by the purchaser by issuing of notices under Section 260, Ben. Ten. Act, or otherwise which misled the cosharer-tenants in any way, and whether or not the latter was acquainted with the true state of affairs. The learned Judge seems to be of the opinion that as the foundation of a proceeding under Section 26F, Ben. Ten. Act, is the admission of the purchaser in the deed of purchase that the holding is an occupancy holding, the question as to the real nature of the holding cannot be presented before the Court for adjudication; and in support of this view, he relies upon a decision of this Court which is to be found reported in Prosanna Kumar v. Adya Sakti Dasi : AIR1942Cal586 .
5. The above case deals with a matter relating to Section 26F, Ben. Ten. Act, as it stood before the amendment of 1938. The plaintiff-respondent purchased a portion of a raiyati holding which was expressly described to be an occupancy jote. The landlord's fees were deposited, and on a notice being served upon the landlord under Section 26C, Ben. Ten. Act, the latter made an application under Section 26F. This application was allowed on 26th November 1936. It may be mentioned here that in the record of rights as it then stood, the holding in dispute was described to be an occupancy holding, and no question was raised by the other side during the hearing of the application under Section 26F, Bengal Tenancy Act, that the holding was something other than an occupancy jote. The original tenant, however, started a proceeding under Section 106, Ben. Ten. Act, for correction of the entries in the record of rights,--his case being that the tenancy should have been recorded as mokurari tenancy. This application was allowed, and the record of rights was corrected by describing the tenancy as the holding of a raiyat at fixed rent. Thereupon, the purchaser filed a suit in the Court of the Munsif at Katwa for a declaration that the land purchased by her appertained to a raiyati at fixed rate, and the order of pre-emption made by the Court was void for want of jurisdiction. The first Court dismissed the suit. On appeal to the Court of the District Judge of Burdwan, the judgment was reversed and the suit was decreed. This judgment was affirmed by Sen J., on second appeal to this Court, and by Nasim Ali and Blank JJ., on further appeal under Clause 15, Letters Patent. The decision of the Letters Patent Bench was that the order under Section 26F, Ben. Ten. Act, did not operate as res judicata and could not bar the subsequent suit. In the course of the judgment, it was pointed out by the learned Judges that as no question relating to the nature of the tenancy was at all raised or decided in the Section 26P proceeding, there was no decision which could operate as res judicata. In reply to the contention raised by the appellant that the principle of constructive res judicata might apply, the learned Judges said that as it was not open to the purchaser to present this question for decision to the Court at all, the entire proceeding being based upon his admission in the kabala that the holding was an occupancy holding, the doctrine of constructive res judicata also could not be invoked against him. It appears to us that in this part of the judgment, the learned Judges did nothing else than lay down the proposition of law that when a property was purchased as an occupancy holding, and notice was issued under Section 26C, Ben. Ten. Act, it was not open to the purchaser to contend that the holding was really not an occupancy holding. The judgment of the learned Judges could not, in our opinion, be construed to mean that the Court in proceeding under Section 26F, Ben. Ten. Act, has no jurisdiction to enter into the question as to the real nature of the tenancy. This would be clear from the concluding portion of the judgment where the learned Judges expressly say that the condition precedent to the assumption of jurisdiction by the Court for making an order under Section 26F, Ben. Ten. Act, is the fact that the property sold was an occupancy holding, and if actually the holding was not an occupancy holding, the order would be wholly without jurisdiction. If this is the position, the Court would undoubtedly be competent to decide as to whether the condition precedent to the assumption of jurisdiction by it exists or not, and it is only when the rule of estoppel operates against the purchaser that it can be relieved of its duty to enter into this question. In our opinion this is the view which is deducible from the various decisions referred to above, and which seems to us to be perfectly sound in principle.
6. A question was raised before us whether a proceeding under Section 26F, Ben. Ten. Act, can be said to be a summary proceeding after the section was amended in 1938, and a clause was added giving a right of appeal against an order made under the section. The expression 'summary proceeding' has nowhere been defined; ordinarily, in dealing with a case summarily the Court hears and determines a matter not finally but for certain purposes only, and although the order cannot be questioned in appeal, it can be contested by a regular suit. It must be admitted that a right of appeal is seldom given in a summary proceeding. In the view we have taken above, it is, however, not necessary for us to express a final opinion as to whether by giving a right of appeal, the Legislature intended that a proceeding under Section 26F, Ben. Ten. Act, as it stands at present should not be a summary proceeding, but would be regarded as a regular suit. The question may have to be decided on a proper occasion.
7. The result is that this rule is made absolute. The order of the lower appellate Court is set aside and the case is sent back to that Court in order that the appeal, may be reheard. The lower appellate Court will decide first of all whether there is any reason why the rule of estoppel should not be invoked against the purchaser. If it decides this question against the purchaser the previous order will stand. If it decides otherwise, the next question for consideration will be whether the tenancy was really an occupancy holding or not and if the Court is of opinion that it was not, the application under Section 26F will be dismissed. We make no order as to costs in this Court. Further costs will abide the result.
8. I agree.