The question raised in this Rule is whether the Petitioner is entitled to pre-emption. I regret to say that the case has already been before this Court on a previous occasion. The Munsif originally allowed the application; an appeal was dismissed and the Opposite Parties obtained a Rule from this Court. The Petitioner was in the position of a purchaser before the Amending Act of 1928 was passed. My learned brother Edgley held that he was not entitled to pre-emption unless he proved that his purchase had been recognised. He, therefore, remanded the case. There is now a concurrent finding of fact that the Petitioner has been recognised by one Radharani, who is one of the landlords. It is to be noted that she did not purport to settle the whole of the holding (in which case there would have been no difficulty) but merely recognised the transfer to the extent of her share. The Munsif held that this was sufficient and again allowed the application. On appeal, the Subordinate Judge has dismissed it, holding that a person in order to be a tenant within the meaning of the section must be recognised by all the landlords.
The learned Subordinate Judge has based this view upon the terms of sec. 188 of the Bengal Tenancy Act. The answer to that is that recognition of a tenant is not one of the things which is required or authorised to be done under the Act. In showing cause Mr. Roy made no attempt to support thia reasoning. He contended that a purchaser, who has not been recognised by all the landlords, is not a tenant within the definition in sec. 3 of the Act. That definition is in these terms:—
“Tenant” meana a person who holds land under another person and is liable to pay rent for that land to that person.
Mr. Roy has contended that it cannot be said that the Petitioner is a tenant because he only pays rent for an undivided share of the tenancy. It cannot, therefore, be said that he was paying rent for the land. He sought to establish this proposition by an examination of the position of such a person from various points of view. I shall illustrate the argument by an examination of two decisions.
In the case of Hossein Mahomed v. Fakir Mahomed—a decision which has been frequently referred to on subsequent occasions—it was pointed out that a person in the position of the present Petitioner cannot be ejected and that his title cannot be disputed. The other co-sharer landlords can only claim joint possession with him or partition. I can find nothing here to suggest that such a person is not a tenant within the meaning of the Act. Unless he is, it is difficult to see on what conceivable right he can claim partition.
Then there is a later decision in the case of Bamapada Sarkar v. Sm. Sakuntala Dasi. It was there held that where a landlord, who has not recognised a purchaser, does not make him a party in a rent suit, the decree is nevertheless a rent decree and not a money decree. At first sight this decision might certainly suggest that such a person is not a tenant. But the question whether the decree is a rent decree or a money decree has really nothing to do with the question whether he is a tenant. It is quite possible to obtain a rent decree in a suit in which all the tenants have not been impleaded.
The present Petitioner undoubtedly holds under Radharani to the extent of her share. Mr. Roy's argument that he does not hold land under her, because she only represents a fractional share, proves too much. There is no reason why, if the fractional share has to be introduced at all, it should be limited to the landlords interest and if the full effect is given to the argument, there can be no such thing as a co-sharer tenant. In order to be a tenant, it is not necessary to have a sixteen annas interest in the land in any sense of the term. The Petitioner is undoubtedly a tenant of Radharani within the definition. The Opposite Party is also a tenant of Radharani and they are accordingly co-sharer tenants. There is no decision that is inconsistent with such a position.
The Rule is accordingly made absolute. The order of the Lower Appellate Court is set aside and that of the Munsif restored.
Opposite Parties Nos. 1-3 will pay costs to the Petitioner in all Courts, hearing-fee in this Court, two gold mohurs.
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