Das, J. - (1.) This is an appeal by Shiramoni Prasad Bhakat and his wife Sm. Jayasree Dasi, who were the applicants in proceedings under section 26F of the Bengal Tenancy Act. The appeal is directed against a decision of Sri Mallinath Mukherjee, learned Subordinate Judge, Birbhum, dated the 6th of August, 1951.
(2.) This case has a chequered career. On the 30th of October, 1946, a kobala was executed by one Bhola Bhakat in respect of a share in the disputed holding in favour of Sm. Jayasree Dasi, who, it is now alleged, was a benamdar for her husband Shiramoni Prasad Bhakat. The deed of sale recited that the property sold was bastu mokarari raiyat. On the 14th of January, 1948, respondent No. 1, Raghunandan Prasad Shaw, purchased from the respondents 2 to 5 certain shares in the said holding, the recital being that the holding sold was an occupancy raiyati holding. The consideration for the same was Rs. 5,999. A notice under section 26C of the Bengal Tenancy Act was issued with a recital that the property transferred was an occupancy holding and was served on the appellant No. 2. On the 4th of November, 1948. the appellants filed an application for pre-emption under section 26P of the Bengal Tenancy Act and made the deposit required by that section. Respondent No. 1, Raghunandan Prasad Shaw, filed a petition of objection stating that in point of fact the holding sold was not an occupancy holding but was a piece of chandina land, the land being situate in Nalhati Bazar with pucca structures thereon. By an order, dated the 10th of May, 1949, Sri Nisakar Chowdhury, learned Subordinate Judge, Birbhum, dismissed the application for pre-emption holding that the disputed lands did not form part of an occupancy holding but are Chandina lands and are outside the scope of section 26F of the Bengal Tenancy Act. The learned Subordinate Judge was also of the opinion that, the applicants for pre-emption, namely, the appellants, were not misled by the notice under section 26C of the Bengal Tenancy Act. Against that order the present appellants preferred an appeal to this Court being Appeal from Original Order No. 98 of 1949. The appeal wag allowed. The learned Judges directed that the case be sent back for re-hearing. The material portion of the order of remand runs as follows : "He (the learned Subordinate Judge) will allow both parties to adduce evidence on the question of the knowledge of the applicants for preemption regarding the nature of the land and thereafter he will decide the case in the light of the observations made above and in accordance with law."
(3.) After the case went back, evidence was led on behalf of the parties. Mr Mallinath Mukherjee, learned Subordinate Judge, Birbhum, who tried the case, was of the opinion that the applicants (the appellants before us) knew that the tenancy was not an occupancy holding at the time they received notice under section 26C of the Bengal Tenancy Act, and that consequently opposite party No. 1, was not estopped from showing that the tenancy was not an occupancy holding and that he succeeded in establishing that the tenancy was a Chandina one and not an occupancy holding.;