JUDGMENT S.N. Mallick, J. The instant two second appeals being Nos. 36 of 1984 and 37 of 1984 have been heard together and will be governed by this Judgement. Both the appeals have been preferred by one Sk. Sobhajan Molla @ Subajan Molla against the judgment and decree passed by the learned Additional District Judge, Second Court, Alipore, 24-Prganas dated 8.6.83 in Title Appeal No. 36 of 1982 and Title Appeal No. 110 of 1982 affirming the Judgement and decree passed by the learned Subordinate Judge, Second Court, Alipore dated 30.11.81 in T.S. No. 71 of 1981 and T.S. No 128 of 1975 heard analogously. It may be mentioned that the Title Suit No. 71 of 1981 was initially filed in the Second Court of Munsif at Alipore for pre-emption under the provisions of Mohammadan law by one Akbar Hossain plaintiff/respondent No. 1 in the instant second appeal no. 36 of 1984 where it was registered as Title Suit No. 18 of 1975. The said suit was subsequently transferred to the Second Court of Subordinate Judge where it was numbered as T.S. 71 of 1981 (vide order No. 64 dated 21.4.81 and no. 65 dated 23.4.81 in the order sheet of T.S. No. 18 of 1975). On 12.8.75 the present appellant instituted Title Suit No. 128 of 1975 in the Second Court of the Subordinate Judge at Alipore for pre-emption against one Rabia Begum respondent No. 2 in S.A. No. 36 of 1984 and respondent no. 1 in S.A. No. 37 of 1984 and against one Sk. Manjur Ali being the Respondent No. 2 in the S.A. No. 37 of 1984. 2. In S.A. No. 36 of 1984 Akbar Hossain is the plaintiff/respondent no. l, Rabia Begum is respondent no. 2 and Abdul Aziz is the pro-respondent no. 3. In S.A. 37 of 1984 Rabia Begum is the respondent no. 1 while Sk. Manjur Ali is the Respondent no. 2. The admitted and undisputed facts or records are as follows :- The entire undivided property at 7C Tiljala Lane belonged jointly to Akbar Hossain and Abdul Aziz in which Akbar Hossain had 17/18th share while Abdul Aziz 1/18th share. The area of the said property is 4 (four) cottahs and 13 chittacks. On 4.10.74 Abdul Aziz the defendant no. 2 of T.S. 71 of 1981 sold his undivided 1/18th share of the suit property at 7C, Tiljala Lane to Sk. The area of the said property is 4 (four) cottahs and 13 chittacks. On 4.10.74 Abdul Aziz the defendant no. 2 of T.S. 71 of 1981 sold his undivided 1/18th share of the suit property at 7C, Tiljala Lane to Sk. Sobhajan Molla the present appellant/defendant no. 1 by a registered Sale Deed. On 10.1.75 Akbar Hossain filed the Title Suit No. 18 of 1975 (re-numbered as 71 of 1981) praying for pre-emption of the said transferred land under the provisions of Mohammad an law on the allegation that he came to know of the said transfer to Sk. Sobhajan Molla by Abdul Aziz on 9.1.75 from one Md. Aziz and that he complied with all the formalities of pre-emption to be made under the provisions of Mohammad an law before bringing the suit. On 27.6.75 the said plaintiff Akbar Hossain sold away his 17/18th share in the suit property to Rabia at a price of Rs. 25,000/- and since then he is not heard off. On the same date Rabia has also transferred some land purchased by her from Akbar in favour of one Sk. Manjur Ali. On 12.8.75 Sk. Sobhajan Molla filed the T.S. No. 128 of 1975 in the Second Court of the Subordinate Judge, Alipore praying for preemption against Rabia and Manjur Ali. On 4.2.76 the present appellant Sk. Sobhajan filed written statement in T.S. No. 18 of 1975 challenging the right of the plaintiff Akbar Hossain to pre-empt the disputed land on the ground that the suit was no longer maintainable at the instance of Akbar because of his sale of his entire 17/18th share in the joint property in suit in favour of Rabia. On 11.1.77 Rabia filed an application under Or. 22 Rule 10 of the Civil Procedure Code for impleading her as co-plaintiff for the purpose of proceeding with the suit which was allowed by the Trial Court by its order dated 4.4.77. Thus Rabia was impleaded as plaintiff no. 2 in T.S. No. 18 of 1975. Both the suits were heard analogously in the 2nd Court of the Subordinate Judge, Alipore and both the parties adduced oral and documentary evidence in support of their respective cases. The learned Trial Court decreed the T.S. 71 of 1981 for pre-emption in favour of the original plaintiff no. 2 in T.S. No. 18 of 1975. Both the suits were heard analogously in the 2nd Court of the Subordinate Judge, Alipore and both the parties adduced oral and documentary evidence in support of their respective cases. The learned Trial Court decreed the T.S. 71 of 1981 for pre-emption in favour of the original plaintiff no. 1 Akbar Hossain and dismissed the T.S. No. 128 of 1975 in consequence of his findings made in the earlier suit. The learned Subordinate Judge has decreed the suit for pre-emption being T.S. No. 71 of 1981 on the ground that although the deed of sale dated 27.6.75 made by Akbar in favour of Rabia purports to show that Akbar sold 17/18th share in the suit property but actually as per schedule he sold only 4 (four) cottahs 2 (two) chittaks 42 sft. thus leaving a balance of few chittaks to the credit of Akbar. The observation of the Trial Court on this point may be quoted below:- "Therefore, according to mathematical calculation the said Akbar has not sold away his full undivided share unto the purchaser Rabia. At least Akbar after this sale still has a few Chittaks of land as per arithmetical calculation. The mention of 17/18th share instead of mentioning out of 17/17th share may be a mistake or omission but actual measurement of land as shown in the schedule with specific boundary means that Akbar did not sell away his entire undivided share. Hence that Akbar remains a co-sharer in the suit property inspite of sale by him a lion's portion to Rabia is evident from the facts of the case and from registered documents like Exhibit 1, Exhibit 4 etc.". The learned Trial Court has found that Akbar had performed all the formalities of pre-emption as required under Rule/s. 236 of Molla's Principles of Mohammadan Law. He has further, held overrulling the objection taken by Sk. Sobhajan that after impleading or induction of Rabia as co-plaintiff no. 2 the suit for pre-emption brought by Akbar is not hit by Rule/Section 241 of the Mohammadan law. He has further, held overrulling the objection taken by Sk. Sobhajan that after impleading or induction of Rabia as co-plaintiff no. 2 the suit for pre-emption brought by Akbar is not hit by Rule/Section 241 of the Mohammadan law. The learned Trial Judge has hold that Rabia was impleaded in the said suit on her own prayer as co-plaintiff under Order 22 Rule 10 read Order 1 Rule 10 and s. 151 of the Civil Procedure Code and as such the suit is not hit by the provisions of Rule/Section 241 of the principles of Mohammadan law. The learned Trial Judge has further held as follows :- "May be the plaintiff No. 2 is not entitled to any pre-emption in such circumstances. But the plaintiff No. 1 has not lost this right of preemption thereby". The First Appeal Court by its impugned Judgment and decree has concurred with the findings of Trial Court and has dismissed both the appeals. The learned First Appeal Court dismissed Sobhajan's T.S. No. 128 of 1975 pre-emption on an additional finding that Sobhan's right of preemption against Rabia and Manjur arising out of transfer made by Akbar is lost by acquiescence. The finding of the First Appeal Court in this regard may be quoted below :- "The evidence thus discussed shows that Sobhajan had not only knowledge about the sale but he is in fact actively participated in the transaction. I, therefore, hold that he has acquiesced in the sale". In order to come to his above finding the learned First Appeal Court has referred to a part of the written statement filed by Sobhajan in T.S. No. 71 of 1981 and has relied upon the evidence of Rabia P.W.5, her husband Mamtaj Ali P.W.4 P.W.6 Sk. S.M. Hanif who drafted Akbar's sale deed in favour of Rabia and Rabia's sale deed in favour of Manjur. The learned Appeal Court has also come to a finding that the signature appearing in Ext. 4 marked as Ext. 4(b) and the Signature by Sobhajan in his plaint being the plaintiff in T.S. No. 128 of 1975 appeared to him as memo on similar. The finding of the learned First Appeal Court may be quoted below :- "In all probability, therefore, the signature Ext. 4(b) appears to be that of Sobhajan Molla". 3. 4 marked as Ext. 4(b) and the Signature by Sobhajan in his plaint being the plaintiff in T.S. No. 128 of 1975 appeared to him as memo on similar. The finding of the learned First Appeal Court may be quoted below :- "In all probability, therefore, the signature Ext. 4(b) appears to be that of Sobhajan Molla". 3. The impugned Judgement and decree passed by the First Appeal Court have been challenged before this Court in the present two second appeals. The first point taken by Mr. Das the learned Counsel appearing for the appellant in connection with S.A. No. 36 of 1984 is that both the Courts have erred in law in not holding that after the sale of 17/18th share in the suit property during the pendency of the suit in favour of Rabia by a registered deed dated 27.6.75 as per Ext.4 Akbar had no subsisting right title or interest in the said property so as to uphold his suit for pre-emption. Mr. Das has contended that both the courts have not taken into consideration the bar imposed under s. 92 of the Indian Evidence Act in the matter of appreciation of the registered deed of sale as per Ext.4. Mr. Das has also contended that Akbar the original plaintiff in T.S. No. 71 of 1981 since after the said transfer as per Ext. 4 has not cared to proceed with the suit nor has he examined himself as a witness to support his case for pre-emption. It is quite settled in law that the right of pre-emption must be subsisting with the plaintiff till the final adjudication of the suit. Admittedly Akbar has 17/18th share in the premises at 7C, Tiljala Lane and Aziz has 1/18th share which he had transferred to Sobhajan for which Akbar brought the suit for pre-emption under the provisions of the Mohammadan law. It is admitted that at the time of filing of the suit Akbar had 17/18th share in the aforesaid undivided joint property. In order to appreciate the contention of Shri Das it would be first necessary to look into the Ext.4=Ext.2. In the aforesaid sale deed as per Ext. 4 it is stated that Akbar the vendor of Rabia has undivided 17/18th share while Abdul Aziz has undivided 1/18th share in the premises at 7C, Tiljala Lane. In order to appreciate the contention of Shri Das it would be first necessary to look into the Ext.4=Ext.2. In the aforesaid sale deed as per Ext. 4 it is stated that Akbar the vendor of Rabia has undivided 17/18th share while Abdul Aziz has undivided 1/18th share in the premises at 7C, Tiljala Lane. It is also stated there that Akbar has agreed to the absolute sale of his above undivided share in the suit property in favour of Rabia. It is also stated in the said sale deed that in pursuance of this agreement and on passing of consideration of Rs. 25,000/- the said vendor i.e. Akbar by the said sale deed thereby transferred his undivided 17/18th share to Rabia with all structures thereon measuring an approximate area of 4 (four) cottahs 2 (two) chittaks and 42 sft. more or less. So it is clear from Ext. 4 that what was transferred to Rabia by Akbar through Ext. 4 is his entire 17/18th share in the undivided suit premises with an approximate area of 4 (four) cottahs 2 (two) chittaks and 42 sft. more or less. In the annexed map also the area is described as more or less. It appears from the Judgment of both the courts below that the approximate description of the area of the land so transferred as given in the sale deed and also in the map annexed thereto has not been at all taken into consideration. It is nobody's case that at the time of such transfer the land was measured by any Amin. So the area as shown or given in the map and in the deed is an approximate area which may be a little more or little less subject to measurement. But in the sale deed it is unambiguously stated that Akbar thereby transferred absolutely his 17/18th share. The undisputed area of the entire premises 4 cottahs and 13 chittaks wherein Akbar had 17/18th share and Aziz had 1/18th share. Both the courts below on a doubtful method of mathematical calculation of the area of land Akbar must have retained a few chittaks in the suit property overlooking the evidence that in the schedule of the deed and in the map only approximate area has been given. I agree with the contention of Mr. Both the courts below on a doubtful method of mathematical calculation of the area of land Akbar must have retained a few chittaks in the suit property overlooking the evidence that in the schedule of the deed and in the map only approximate area has been given. I agree with the contention of Mr. Das that such a finding is based on non-consideration of material evidence and vitiated by surmises and conjectures and against the provisions of s. 92 of the Evidence Act. Mr. Das has further contended that s. 94 of the Evidence Act was also not considered by the courts below. Section 94 says that when language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. Section 92 clearly bars the adducing of oral evidence between the parties to a written document relating to contract grant or other disposition of property or any matter required by law to be reduced to the form of a document and also bars their representatives in interest to give such oral evidence for the purpose of contradicting varying adding to or subtracting from its terms. Under proviso 1 to s. 92 evidence may be given which would invalidate the document on ground of fraud intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration or mistake in fact or law. Rabia is admittedly a representative in interest of Akbar in respect of his 17/18th share in the suit property and as such although being impleaded as co-plaintiff she cannot adduce any oral evidence to contradict the terms of Ext.4 by saying that Akbar, in fact, had retained a few chittaks of land in the suit property. The most important aspect of the matter is that Akbar has not come forward before the Trial Court after his execution of Ext. 4 to say that he did not transfer the entire area of land cover by his 17/18th share and in fact, he retained a fragment thereof for the purpose of his pre-emption suit. There was no amendment of plaint in this regard by Akbar after his sale to Rabia by Ext. 4. 4 to say that he did not transfer the entire area of land cover by his 17/18th share and in fact, he retained a fragment thereof for the purpose of his pre-emption suit. There was no amendment of plaint in this regard by Akbar after his sale to Rabia by Ext. 4. Furthermore the finding of the Trial Court has concurred with by the First Appeal Court that there was a mistake or omission in Ext. 4 by mentioning 17/18th share subject matter of transfer does not find any support from the plaint filed by Akbar. In that view of the matter the proviso 1 to s. 92 cannot have any application. Section 99 of the Evidence Act is not applicable to the present case because Rabia is admittedly a representative in interest by Akbar. In this respect reference may be made to a decision of the Supreme Court reported in AIR 1958 SC page 448 (Bai Him Devi and Ors. Appellants vs. Official Assignee of Bombay, Respondent) as relied upon by Shri Das. The learned First Appeal Court as Mr. Das rightly submitted, has blindly concurred with the finding of the Trial Court that Akbar had not sold his entire interest in the suit property. The learned First Appeal Court in the impugned Judgment has held that the map annexed to Ext. 4 shows that one R.T.S have been excluded from being the subject matter of sale. The said R.T.S room has been circled with red ink by the Trial Court and is marked as Ext.4(a). Except the oral evidence of Rabia there is no basis of such finding and Rabia's evidence would be inadmissible under s. 92 of the Evidence Act. Furthermore, as I have already held that the sale deed itself shows that Akbar has transferred his absolute 17/18th share in the suit property to Rabia although the area of the land so transferred was given by guess of approximation. By this it can never be said that Akbar did not transfer his entire 17/18th share. Akbar himself has not examined itself nor he has amended his plaint which I have already noted above. The only witness coming on behalf of Akbar is P.W.1 Md. Hossain who claims to be the constituted Attorney of Akbar on the basis of a power of attorney dated 18.1.87. This power of attorney as per Ext. Akbar himself has not examined itself nor he has amended his plaint which I have already noted above. The only witness coming on behalf of Akbar is P.W.1 Md. Hossain who claims to be the constituted Attorney of Akbar on the basis of a power of attorney dated 18.1.87. This power of attorney as per Ext. 1 was a subsequent document executed long after the date of execution of Ext.4. In this power of attorney there is no mention of the aforesaid Title Suit No. 71 of 1981 filed by Akbar against the present appellant pending in the Second Court of the Subordinate Judge, Alipore. Here also the address of Akbar is given not at 7C, Tiljala Lane as given in the plaint but at 7B Tiljala Lane. There is no authorisation by Akbar in favour of this P.W.1 Md. Hossain to proceed with the above suit on his behalf. There is also no mention that P.W.1 was to look after his remaining property at 7C, Tiljala Lane. This P.W.1 has been cross-examined at length. From his cross-examination it appears that this P.W.1 is worth of no credence. He admits in cross-examination that he does not know the whereabouts of the plaintiff Akbar, that he does not know the date of execution of the power of attorney in his favour and the exact extent of share of Akbar in the suit property but he says that Akbar retained about 7 (seven) chittaks of land in the suit property after sell to Rabia. Both the Courts below have relied upon this witness whose evidence is wholly baseless and is barred under Ss. 91 and 92 of the Evidence Act. 4. Mr. Roychowdhury the learned Counsel appearing for respondent Rabia has submitted that such oral evidence is permissible under s. 95 of the Evidence Act. But in my opinion s. 95 has no application in view of the above facts and circumstances of the case. Mr. Roychowdhury has further contended that the evidence on record would show that the intention of the parties as per Ext. 4 was that Akbar had retained a small portion of the disputed property covered by his 17/18th share. But such intention is not manifested in the evidence and materials on record. Mr. Roychowdhury has further contended that the evidence on record would show that the intention of the parties as per Ext. 4 was that Akbar had retained a small portion of the disputed property covered by his 17/18th share. But such intention is not manifested in the evidence and materials on record. In that view of the matter the contention of Shri Roychowdhury cannot be accepted and the findings of the court below in this regard must be held to be bad in law. The finding of the court below that Akbar had retained the R.T.S room in the suit premises is not based on any legal evidence. It has been contended by Mr. Das if there was any mistake in the Ext.4 it would have been natural for Akbar to execute a deed of rectification according to law which he has not done. In fact, the best evidence in this regard was to have come from Akbar who has not examined himself before the Trial Court. There is no satisfactory explanation for non-examination of such material witness. In view of the above facts and circumstances and the evidence on record I must hold that both the courts below have decreed the suit for pre-emption brought by Akbar illegally and their findings in this regard that Akbar had retained a few chittaks of land in the suit property so as to entitle him to pre-emption is based on inadmissible evidence and also vitiated by surmises and conjectures and for non-consideration of material evidence. Akbar having sold his entire property being 17/18th share in the same as per Ext. 4 dated 27.6.75 has lost all his right of pre-emption under the provisions of Mohammadan law. Both the courts below have come to concurrent finding that Akbar before bringing the suit had complied with the provisions of as required Rule/section 236 of Mulla's Principles of Mohammedan Law. This is a finding of fact which cannot be challenged as such in this second appeal. But this finding alone would not entitle Akbar to get a decree for pre-emption in his suit. It is worthwhile to mention here that at the time of hearing of this two appeals Mr. Mohammad Ali Haider appearing for Akbar respondent no. This is a finding of fact which cannot be challenged as such in this second appeal. But this finding alone would not entitle Akbar to get a decree for pre-emption in his suit. It is worthwhile to mention here that at the time of hearing of this two appeals Mr. Mohammad Ali Haider appearing for Akbar respondent no. 1 in S.A. No. 36 of 1984 submitted that his client would not contest the appeal and that he had no objection if the appeal was allowed against him (vide order dated 5.12.96 passed by this Court). 5. Now coming to the Appeal No. 37 of 1984 it must be noted that the Trial Court dismissed the appellant's suit on the ground that Akbar's suit for preemption was decreed against him and as such right of pre-emption in respect of Rabia's transfer was not available to him. The learned Appeal Court has concurred with this finding but he has come to an additional finding that Sobhajan's right of pre-emption has been lost by acquiescence. I have quoted his findings on this point in paragraph no. 2. While coming to this finding he has relied upon the evidence of Rabia and her husband Mamtaj Ali (P.W.4 & 5). Mr. Das has rightly submitted there being no independent evidence on record on this point of acquiescence on the part of Sobhajan the learned Appellate Court should not have accepted the evidence of P.W.4 and 5 who are the most interested witnesses in the suit brought by Sobhajan for pre-emption. The Appellate Court has also referred to the evidence of P.W.6 Md. Hanif an Advocate of this Court who has drafted the Ext.4 and also the deed executed by Rabia in favour of one Manjur Ali defendant no. 2 in the suit brought by Sobhajan. This witness has also said that Akbar sold his 17/18th undivided share to Rabia with all structures. This witness has said in his chief that at the time of execution of both the deeds Sobhajan was present and he signed the Ext. 4 which is marked Ext.4(b). Sobhajan has categorically denied the signature to be his own. This witness has been cross-examined at length and from his cross-examination it appears that this witness has no personal recollection of the matter. He has admitted that he did not know Sobhajan from before. 4 which is marked Ext.4(b). Sobhajan has categorically denied the signature to be his own. This witness has been cross-examined at length and from his cross-examination it appears that this witness has no personal recollection of the matter. He has admitted that he did not know Sobhajan from before. He has also admitted that Akbar introduced some persons to him describing them as defendant no.1 Sobhajan, Rabia and Mamtaj. Sobhajan in his evidence, as I have already noted has strongly denied the signature Ext.4(b) as his own. There was no hand-writing expert appointed by the First Appeal Court or by the Trial Court. The finding of the Appeal Court that in all probability the signature as per Ext.4(b) appears to be that of Sobhajan Molla is wholly preposterous being based on conjecture and not specific and assertive expert opinion. The Ext. 4(b) furthermore differs from the name of the present appellant. The Appeal Court has quoted a portion of paragraph 9 of the written statement of the appellant filed in T.S. No. 71 of 1981 to support his finding that appellant had acquiescence to the sale made by Akbar in favour of Rabia. It is clear from record that the learned First Appeal Court has misquoted the paragraph and has given the name of the parties there according to her choice who do not find any place in the original written statement. Admittedly the written statement of Sobhajan was filed long before and Rabia was impleaded in the suit. In this position there cannot be any basis of interpreting the above paragraph 9 of the written statement to show that Sobhajan had acquiescence to the transfer made in favour of Rabia. This finding of the learned Appeal Court is based on inadmissible evidence and conjectures and surmises and misquotation from the written statement of Sobhajan. The evidence of P.W.6 should have been rejected by the First Appeal Court in this regard under the circumstances the finding of the Appeal Court that Sobhajan's right of preemption was lost by acquiescence is bad in law and is set aside. 6. It must be recalled at this stage that neither the Trial Court nor the First Appeal Court considered the Title Suit No. 128 of 1975 on merits. The Appeal Court has made a finding that Sobhajan's right of pre-emption is lost by acquiescence which does not stand in law. 6. It must be recalled at this stage that neither the Trial Court nor the First Appeal Court considered the Title Suit No. 128 of 1975 on merits. The Appeal Court has made a finding that Sobhajan's right of pre-emption is lost by acquiescence which does not stand in law. The fact stands that the above suit was not decided on merit by the courts below and no final adjudication was done in this regard. The question is whether the aforesaid suit no. 128 of 1975 should be remanded for disposal according to law. Mr. Roychowdhury has drawn my attention to the provisions of Or. 41 Rule 24. But in my opinion Or. 41 Rule 24 cannot be applied to the present case for disposal of the aforesaid suit on merits by this High Court while hearing the second appeal. There was no adjudication on merits at any point of time in the Trial Court or in the First Appeal Court. The Trial Court dismissed the suit on the ground that Sobhajan had lost in the suit brought by Akbar. The First Appeal Court concurred with that finding and came to an additional finding that Sobhajan's right was lost by acquiescence. But whether Sobhajan is entitled to pre-emption otherwise according to the provisions of Mohammadan law was not decided. In my opinion, this has not to be adjudicated upon by the Trial Court and this High Court would not adjudicate the aforesaid suit under Or. 41 Rule 24. In view of the above facts and circumstances of the case and the evidence on record and considering the position of law in this regard both the appeals are allowed on contest against Rabia Begum, respondent no. 2 in S.A. No. 36 of 1984 and respondent no. 1 S.A. no. 37 of 1984 and ex parte against the rest without cost. The impugned Judgment and decree passed by First Appeal Court be set aside. The Title Suit No. 71 of 1981 is dismissed without cost. The Title Suit No. 128 of 1975 be remanded to the Trial Court for disposal according to law in the light of the observations made in the body of the Judgment on the basis of the evidence already on record within a period of 3 (three) months from the date of communication of this order. The Title Suit No. 128 of 1975 be remanded to the Trial Court for disposal according to law in the light of the observations made in the body of the Judgment on the basis of the evidence already on record within a period of 3 (three) months from the date of communication of this order. The Trial Court shall not allow any of the parties to adduce any additional evidence in support of their respective cases. LCR be sent down at once. Both appeals are allowed.