JUDGMENT Chakravartti, J. - This Rule raises a question of some interest and importance. 2. There was a jama of Rs. 21-4-0, held by one Sekendar Sheikh and others. A portion of it was mutated off in the name of one Rajabali, but that matter is not in any way relevant. What was left was a jama of Rs. 19 and it was with respect to an area of 3-27 acres. This jama was held by opposite parties Nos. 1 and 3 to this Rule and they, by an amicable partition between themselves, came to hold it in separate portions, 2-14 acres being held by opposite pary No. 3 and the rest by opposite party No. 1. On some date in 1944, opposite party No. 3 sold 1-96 acres out of his allotment to the Petitioner and on April 5, 1945, he sold another portion to opposite party No. 2. In 1945,--the exact date was not given to me,--the Petitioner applied for pre-empting the latter sale, whereupon Miscellaneous Case No. 290 of 1945 was started. Opposite party No. 1 was made a party in that proceeding and it has been found that he was duly served with a notice. Opposite party No. 1, however, did not appear in the proceeding, nor did he make any application on his own account for some time and ultimately on February 26, 1946, an order was made in favour of the Petitioner, granting him pre-emption with respect to the entire portion sold. 3. On December 4, 1945, opposite party No. 1 made an application for pre-empting the same sale and thereupon Miscellaneous Case No, 260 of 1945 was started. The application was dismissed by the trial Court on April 29, 1947 on the ground that it was barred by time. But, on appeal, the lower appellate Court has held that it is not barred. The learned Munsif had not had the benefit of the decision of the Special Bench which has since held that the relevant period of limitation is three years from the date of the sale. The lower appellate Court, after holding that the application is not barred by limitation, has directed that the subject-matter of the sale should be apportioned between the Petitioner and opposite party No. 1. It is against this order that the present Rule is directed. 4. The Petitioner obtained possession of the property sold in March, 1947. The lower appellate Court, after holding that the application is not barred by limitation, has directed that the subject-matter of the sale should be apportioned between the Petitioner and opposite party No. 1. It is against this order that the present Rule is directed. 4. The Petitioner obtained possession of the property sold in March, 1947. On his behalf it is contended by Mr. Lala that the learned judge's order is erroneous for a variety of reasons. In the first place, he says that the only provision for apportionment is contained in Sub-section (6) of Section 26F of the Bengal Tenancy Act, but thereby the court is empowered to make an equitable distribution only among the Applicants before it. The argument is that opposite party No. 1 and the Petitioner were not co-Applicants before the court on the present occasion. It is contended, in the second place, that the only provision for delivery of possession is contained in Sub-section (8) of the section, but that again speaks of the ouster of the transferee. The argument is that the Petitioner is not the transferee and, therefore, he cannot be divested of 'the possession which he obtained in March, 1947, by force of any order passed u/s 26F. Certain other grounds were also urged, to which I do not consider it necessary to refer. 5. In my view, the first ground taken by the Petitioner is sound and must succeed, although I would put it in a different form. The lower appellate Court has proceeded on a decision of Mukherjea J. in the case of Jahiruddin Gain v. Mohammad Shoukat Ali Biswas (1946) 52 C.W.N. 95, where his Lordship held that Sub-section (4) of Section 26F was merely an enabling section and did not make it obligatory upon a co-sharer tenant to join as a co-Applicant in an application already made by another co-sharer. The two rights, one of joining as a co-Applicant in the application of another co-sharer and that of making an independent application on one's own account, were, so it was pointed out, independent rights. The two rights, one of joining as a co-Applicant in the application of another co-sharer and that of making an independent application on one's own account, were, so it was pointed out, independent rights. Applying that principle to the present case, the lower appellate Court has held that, inasmuch as opposite party No. 1 had two independent rights, he could still fall back upon his right to make an application on his own account, even though he did not assert the other right of joining the Petitioner's application as a co-Applicant, on the previous occasion. 6. It appears to me that the lower appellate Court has overlooked the effect of the order which was passed on February 26, 1946. It is quite true that, to begin with, a co-sharer tenant has u/s 26F of the Bengal Tenancy Act two independent rights, as pointed out in the case cited. - But, although a party may have two independent rights, one of them may be extinguished by an adverse order suffered. When, for example, the order in the earlier case was made on February 26, 1946, on notice to and in the presence of opposite party-No. 1, that order became binding on him. The effect of the order was to allow pre-emption to the Petitioner in respect of the entire property sold and, if that order is binding on opposite party No. 1, he cannot have the matter reopened and ask for a parcel out of the same property on the strength of some other right still left in him. In the case before Mukherjea J. the earlier application was dismissed. The effect of the dismissal was that the right of the first Applicant to pre-empt the sale was negatived. That order in no way concluded the rights of the other co-sharers, although they may have been parties to the application made. Far different, it seems to me, is the position in the present case. Here, at the time when opposite party No. 1 made his application, the earlier application made by the Petitioner, to which opposite party No. 1 was a party, was still pending. Yet, opposite party No. 1 did not ask for a consolidation of the two applications, nor did he take any step against the order passed on the application of the Petitioner which gave the entire property sold to him. Yet, opposite party No. 1 did not ask for a consolidation of the two applications, nor did he take any step against the order passed on the application of the Petitioner which gave the entire property sold to him. In those circumstances, it seems to me impossible to say that, after the order of February 26, 1946, any right of pre-emption could still survive in opposite party No. 1. It is true that the period of limitation for making an application u/s 26F has now been held to be three years. 7. But, to my mind, if upon an application made by one of the co-sharer tenants, the remaining co-sharers are notified, but they do not either join as co-Applicants, or make independent application on their own account, and pray for a consolidation of the applications, it will be intolerable if, at various periods of time, final orders made in the different applications were all to be successively re-opened at the instance of some other co-sharers still left. In my view, the legislature could never have contemplated such a state of things. I do not see why the ordinary law as to res judicata should not apply to a proceeding u/s 26F of the Bengal Tenancy Act. 8. For the reasons I have given above, it is not necessary for the Petitioner to make out a case out of the exact words of Sub-section (6) of Section 26F. The argument, as I have already stated, was that the Petitioner and opposite party No. 1 were not both Applicants before the Court on the present occasion. But, in my view, the case for the Petitioner can be put on the broader principle that (Opposite party No. 1, having two rights and being fully entitled to assert one or the other, did not choose to do either at least effectively, but instead suffered an adverse order in a proceeding of which he was apprised and to which he was a party. After that had happened, he, in my view, lost both his rights. The application made by opposite party No. 1 cannot, in my view, succeed so long as the order made on February 26, 1946, stands. That order has become final and, therefore, the application made by opposite pary No. 1 cannot succeed at all. 9. For the reasons given above, this Rule is made absolute. The application made by opposite party No. 1 cannot, in my view, succeed so long as the order made on February 26, 1946, stands. That order has become final and, therefore, the application made by opposite pary No. 1 cannot succeed at all. 9. For the reasons given above, this Rule is made absolute. The order of the lower appellate Court is set aside and although the application made by opposite party No. 1 was within limitation, it must be and is dismissed. 10. As the question is one of some difficulty, I direct that each party will bear its own costs throughout.