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Petitioner: MAMIJANNESSA VS Respondent: TAZARUDDIN AND ANOTHER
P L D 1963 Dacca 758
P L D 1963 Dacca 758
Before Sattar, J
MAMIJANNESSA‑--Petitioner
versus
TAZARUDDIN AND ANOTHER‑---Opposite‑Parties
Miscellaneous Case No. 14 of 1958, decided on 21st February 1961
Bengal Tenancy Act (VIII of 1958), S. 27‑F‑Pre‑emption‑Co‑sharer Pre‑emptor ceasing to be co‑sharer during pendency of proceedings‑Proceeding must fail.
Abu Hossain Sarkar for Petitioner.
S. M. Amin Azhar for Opposite‑Parties.
JUDGMENT
This revisional application is directed against the appellate order of Mr. A. B. Khan, Subordinate Judge, Ranopur, confirming an order passed by the Munsif, Nilphamari, allowing at appli cation for pre‑emption filed by the opposite‑party No. 1.
2. Opposite‑party No. 1 Tasaruddin claimed to be a co‑sharer by a purchase, dated 12‑1‑56 from opposite‑party No. 2 Kalu Mamud of the raiyati holding recorded in Khatian No. 223. Kalu sold to the present petitioner 61 acres of land of the holding on 7‑12‑57 and the present application for pre emption is in respect of the sale of the said land.
3. The application for pre‑emption was resisted by the present petitioner on the ground, amongst others, that one Jayeda Khatun had filed an application for pre‑emption of the land purchased by Tasaruddin and during the pendency of that proceeding Tasaruddin's application for pre‑emption could not be entertained.
Both the Courts below have held against the present petitioner.
4. Mr. Abu Hossain Sarkar, who appears for the petitioner, contends that, as the application filed against Tasaruddin has been allowed and he has no interest in the holding now, his application for pre‑emption should be dismissed. The application against. Tasaruddin was allowed on 30‑1‑58 and the present application for pre‑emption was disposed of the Trial Court on 25‑6‑58 and the appeal against that order was dismissed on 31‑5‑60.
5. The question that arises, therefore, is: whether Tasar uddin can pre‑empt the land purchased by the present petitioner though his own land by the purchase of which he became a co‑sharer has been pre‑empted by another co‑sharer.
6. The right of pre‑emption has been given to a co‑sharer in the holding, and if during the pendency of a proceeding for preemption started by him he ceases to be a co‑sharer, his right of pre‑emption, (in my view), comes to an end. This right is not an indefeasible right. It no doubt arises on the sale of a portion of a holding by a co‑sharer but continues only so long as the pre‑emptor remains a co‑sharer; and if during the pendency of the proceeding for pre‑emption the pre‑emptor 14 ceases to be a co‑sharer, the right is lost and the pre‑emption proceeding must fail. On the loss of his status as a co‑sharer, his position and that of the stranger transferee are the same and he cannot claim a better right to hold the land than the other. In that view of the matter, since the opposite‑party ceased to be a co‑sharer during the pendency of the appeal preferred by the present petitioner, the pre‑emption proceeding must fail.
7. The result, therefore, is that this Rule is made absolute. The orders of both the Courts below are set aside and the application for pre‑emption is dismissed.
8. In view, however, of the facts of this case, I direct that each party will bear own costs throughout.
K. B. A.
Rule made absolute.