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Khosal Chandra Das Vs. Upendra Nath Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Reported inAIR1932Cal220,136Ind.Cas.544
AppellantKhosal Chandra Das
RespondentUpendra Nath Ghose and ors.
Excerpt:
- .....not be set aside. the orders in question are that the applicant is to be allowed to join in the cosharer landlord's application for preemption of the transferred holding to the extent of 16 gandas only. the petitioner claims that he ought to have been allowed to purchase 8 annas share of the holding or at least his share in proportion to the share in the superior right, which he has purchased, as compared with the share in the superior right held by the opposite party.2. it is contended on behalf of the opposite party, that the petitioner should not have been allowed at all to purchase inasmuch as he was not a cosharer landlord [at the time when the original application [for preemption was made. but i think that, under the terms of section 26-f. clause 4 (a) ben. ten. act, he is.....
Judgment:

Jack, J.

1. This Rule has been issued on the opposite party to show cause why the orders made by the Munsif of the First Court of Barisal, dated 9th December 1930 and 20th December 1930, should not be set aside. The orders in question are that the applicant is to be allowed to join in the cosharer landlord's application for preemption of the transferred holding to the extent of 16 gandas only. The petitioner claims that he ought to have been allowed to purchase 8 annas share of the holding or at least his share in proportion to the share in the superior right, which he has purchased, as compared with the share in the superior right held by the opposite party.

2. It is contended on behalf of the opposite party, that the petitioner should not have been allowed at all to purchase inasmuch as he was not a cosharer landlord [at the time when the original application [for preemption was made. But I think that, under the terms of Section 26-F. Clause 4 (a) Ben. Ten. Act, he is entitled to make the purchase, if he becomes a cosharer landlord at any time, within two months of the service of notice under Section 26-C, namely [within the period of limitation stated in Section 26-F, Clause 4 (a). Section 26-F, does not state what share a cosharer landlord coming in under Clause 4 (a) is entitled to get and it would seem that in the ordinary course cosharer landlords applying to pre-empt should be entitled to pre-empt to the extent of equal shares, but in any ease I think that the contention of the applicant is not unreasonable in this case, i. e., that he should have a share corresponding to (his interest in the superior right as compared with that of the opposite party.

3. It is urged on the other hand that this Court should not interfere under Section 115, (Civil P.C. with the order of the Court below inasmuch as there is no question of [jurisdiction. It is doubtful indeed whether this Court ought to interfere. But the way in which the lower Court has ordered distribution of shares may be regarded as an irregularity in the exercise of jurisdiction. If the ordinary rule of equal shares is to be departed from, it must be done on some basis or principle, and the applicant appears to have been perfectly (reasonable when he claimed that he ought to get a share corresponding to his interest in the superior right.

4. The Rule is made absolute. The order complained of is set aside and the applicant will get a share corresponding to his interest in the superior right as compared with the interest of the opposite party. Each party will bear his own costs in this Court. The application is rejected.


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