P.N. Mukerjee, J.
1. A question of some nicety is involved in this second appeal. The appellants who are the plaintiffs in the trial Court claimed 16 annas title to the entire suit lands on the strength of an order for pre-emption made in their favour under Section 26F, Bengal Tenancy Act. This claim was allowed in part by the learned Munsif, namely, to the extent of an 8 annas share and the said decision was affirmed on appeal by the learned Subordinate Judge. Hence the present second appeal by the plaintiffs.
2. The relevant facts lie within a short compass and they are as follows: The disputed lands formed part of an occupancy raiyati holding. In this holding plaintiff appellant No. 1, Brindabon and his brother Rashbehari and defendants Nos. 1 and 2, Jiban Chandra Haldar and Sudhir Chandra Haldar, were co-sharer tenants. Rashbehari died and thereafter his heirs sold the disputed lands as appertaining to his share to one Makhan Lal Gharami by a registered kobala dated 22-6-1946. In the said kobala only Brindabon was named as the co-sharer tenant and upon receipt of notice of the same Brindabon applied for pre-emption under Section 26F, Bengal Tenancy Act, on the 6-9-1946 and the usual deposit having been made his said application which had been registered as Misc. Judicial Case No. 313 of 1946 was allowed on the 9-11-1946 and he got possession of the disputed lands on 7-12-1946 and from him plaintiffs Nos. 2 and 3 claim to be subsequent settlement holders.
No notice of the above sale was, however, served upon the other co-sharer tenants, namely, defendants respondents Jiban and Sudhir, nor were they made parties in or served with notice of Brindabon's pre-emption, proceeding (Misc. Judicial Case No. 313 of 1946), but they on coming to know of the said sale applied, sometime in October, 1946, for pre-emption under Section 26F. Bengal Tenancy Act, giving rise to Misc. Judicial Case No, 317 of 1946 and this claim for pre-emption on the part of the defendants respondents Jiban and Sudhir was allowed on 11-1-1947 and in pursuance of the order made in that proceeding they in their turn are said to have obtained possession on 19-1-1947. In this latter pre-emption proceeding Brindabon was not impleaded nor were plaintiffs Nos. 2 and 3 and, accordingly, they brought the present suit claiming 16 annas title to the entire disputed lands on the strength of Brindabon's pre-emption proceeding (Misc. Judicial Case No. 313 of 1946) and contending that defendants Nos. 1 and 2, Jiban and Sudhir, acquired nothing by the order for pre-emption in their favour in their subsequent pre-emption proceeding.
3. What has to be considered, therefore, is the legal consequence of the two pre-emption proceedings. The courts below have agreed in giving effect to both the said proceedings and divided the fruits of pre-emption between the plaintiffs and the defendants Nos. 1 and 2 half and half in view of the fact that each side deposited equal amounts of purchase money and statutory compensation. The courts below have in the above view declared the plaintiffs' title to a moiety of the disputed lands and have granted them necessary consequential reliefs. The propriety of this decision has been assailed before me by the learned Advocate for the appellants on the ground that by reason of Sub-sections 4 (a) and 7 of Section 26F, Bengal Tenancy Act, the defendants' right to pre-empt the suit lands was lost when they failed to join Brindabon's pre-emption proceeding and the order for pre-emption was passed in favour of Brindabon alone with the consequence that the defendants acquired nothing under their own pre-emption proceeding. The argument is no doubt attractive, but it is unsustainable in the ultimate analysis and I am unable to accept the same.
4. The right to pre-empt under Section 26F, Bengal Tenancy Act, arises on the making of a transfer vide -- 'Debendra Nath v. Gunendra Nath', 53 Cal W N 107, vide also -- 'Jatindra Nath v. Jetu Mahato', 50 Cal W N 502 (FB) and it arises in favour of all the co-sharer tenants (vide Sub-section1, Section 26F). This right, however has to be enforced as laid down in the section itself. Under sub-section 1, it can be enforced by an application made within 4 months of the receipt of the Statutory notice of transfer or in the absence of such notice within 3 years from the date of transfer (vide--'Asmatali v. Mujaharali', 52 Cal WN 64 (S.B).) Under Sub-section 4 (a), it can also be enforced by an application made in a pending application for pre-emption within a month of the filing of this latter application or within the period mentioned in Sub-section (1), whichever is later. This is an additional or alternative method of such enforcement vide -- 'Jahi Ruddin v. Mohammad Shoukat Ali', 52 Cal WN 95. Sub-section 4 (a) then provides that if a co-sharer tenant fails to avail himself of either of the above methods his right to pre-empt will be lost or extinguished (vide the last part of Sub-section 4(a)).
In the absence, therefore, of any such default on his part a co-sharer tenant's right to preempt is not lost or extinguished, but it subsists & enures to his benefit & has to be respected. Sub-section 7, Section 26F, Bengal Tenancy Act does not really affect this position. What vests under it is the right, title and interest accruing 10 the transferee from the transfer in question. Such right etc. is undoubtedly subject to the statutory right of pre-emption of the co-sharer tenant which arises immediately on the making of the transfer. What accrued, therefore, to the transferee under the transfer is the right etc., of his transferor subject to the cosharer tenant's right of pre-emption and nothing more vests under Sub-section 7. So long, therefore, as a co-sharer tenant's right to pre-empt is not lost or extinguished he is not affected by the said Sub-section 7. Indeed, even in the sub-section itself, there is a plain recognition of this position as will appear from the wordings of the last part thereof.
5. Tested in the above light the appellants' contention must fail. Admittedly, the defendants got no notice of the sale in question. They were, therefore, entitled to apply for pre-emption under Section 26F(1), Bengal Tenancy Act, within 3 years from the date of sale, that is, within 3 years from the date of completion of sale vide-- 'Asmatali v. Mujaharali', 52 Cal W N 64 (SB), and they did so apply in October 1946 and succeeded in getting an order for pre-emption in their favour. They did not, therefore, allow their right of pre-emption under Section 26F, Bengal Tenancy Act, to lapse or become lost or extinguished under the latter part of Sub-section 4 (a) of the said section and the order for preemption made in their favour in their subsequent, that is, subsequently initiated, pre-emption proceeding was not void or invalid and cannot be said to be of no effect in law. It stands side by side with the earlier order of pre-emption in favour of plaintiff No. 1 and has, therefore, in the facts and circumstances of this case, the same or a similar effect on the title to the disputed lands inasmuch as equal deposits were admittedly made in the two pre-emption cases. The Courts below were, therefore, right in their conclusion and their decision must be upheld.
6. This appeal, accordingly, fails and it isdismissed, but in the circumstances, I make noorder as to costs in this Court.