S.K. Ghose, J.
1. The petitioner in this Rule is a cosharer landlord of an occupancy holding of which opposite party 3 is a tenant. The holding comprises a homestead and some tenanted lands. It appears that the opposite party 3 Fatik Chandra Pal executed a lease by a patta in favour of opposite parties 1 and 2. This was registered Under Section 48-H, Ben. Ten. Act. Thereupon, on receipt of a notice, the petitioner filed an application Under Section 26-F, Ben. Ten. Act, alleging that the aforesaid lease was merely a colourable transaction, the real transaction being an out and out sale. The learned Munsif held that Under Section 92, Evidence Act, the petitioner was not entitled to give evidence to show that the transaction purported to be a lease and was in reality not an out and cut sale, and further that the lease being registered Under Section 48-H, the petitioner was not entitled to apply to re-purchase Under Section 26-F. Against that decision the present Rule has been obtained.
2. Since the petitioner was no party to the patta, Section 92, Evidence Act, is not a bar to his giving evidence to show that the real transaction was not a lease. But the real point is whether on this plea he is entitled to apply Under Section 26-F. As between the parties to the transaction it was a lease which was duly registered Under Section 48-H. So far as the opposite party 3 is concerned, he still stands in the position of a tenant vis-a-vis the petitioner and his cosharer landlords. They are still entitled to sue him for rent. If there has been an abandonment, that is a different matter. But the document being a lease it will not be open to the petitioner to treat it as a transfer by sale and to apply for retransfer Under Section 26-F, Ben. Ten. Act. The Rule is discharged with costs ; hearing fee one gold mohur.