Troilokya Nath Ghose vs Jajneswar Pal and Others

S.K. Ghose, J.—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 u/s 48-H, Ben. Ten. Act. Thereupon, on receipt of a notice, the petitioner filed an application u/s 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 u/s 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 u/s 48-H, the petitioner was not entitled to apply to re-purchase u/s 26-F. Against that decision the present Rule has been obtained.

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 u/s 26-F. As between the parties to the transaction it was a lease which was duly registered u/s 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 u/s 26-F, Ben. Ten. Act. The Rule is discharged with costs ; hearing fee one gold mohur.