Abdul Aziz Khan vs Lalit Mohan Banerjee

Lahiri, J.—The applicant for pre-emption u/s 26F (1), Bengal Tenancy Act, obtained this rule which is directed against an order of the First Subordinate Judge, Howrah, affirming the decision of the Munsif Uluberia, by which the application of the opposite party to join as a co-applicant u/s 26F (4) (a) was allowed.

The facts of the case which, are undisputed are as follows: On 12th November 1946, the opposite party purchased a share of an occupancy holding at an auction sale held in execution of a decree but no notice of the purchase was served on the co-sharers u/s 260. The petitioner came to know about the sale on 28th March 1948 and on 16th April 1948 he made the application u/s 26F (1). Notice of this application was served on the opposite party u/s 26F (3) on 16th July 1948, and on 19th July 1948 the opposite party filed an application u/s 26F (4) (a) for joining in the application as a co-applicant alleging that he was a Co-sharer of the holding from before the date of his auction purchase. This application was resisted by the petitioner on the ground that it was filed beyond the period of special limitation provided for by Sub-section (4) (a) of Section 26F, Bengal Tenancy Act and as such it was liable to be dismissed.

The Court of first instance hold that though the application is barred u/s 26F (4) (a) it was within time under Sub-section (1) because the opposite party was not served with a notice u/s 260 and was therefore entitled to apply within three years from the date of sale under the decision of the Special Bench in the case of Asmatali Sharip Vs. Mujaharali Sardar and Others, . The appellate Court holds that the opposite party being a transferee was not requited to be served with a notice u/s 260 and therefore his application was not maintainable under Sub-section (1); but the appellate Court affirmed the decision of the first Court on a different ground by applying the principle of certain decisions given by this Court u/s 26F as it stood before the amendment of 1938, e. g. Gadadhar Sarkhel Vs. Gopal Chandra Das and Others, ; Sachindra Nath Chakravarty Vs. Trailakya Nath Chakravarty and Another, and Satish Chandra Banerjee and Others Vs. Jogendra Krishna Banerjee and Others in which it has been held that when on account of the default of the Court the notice of an application by a co-sharer, landlord has not been served on other co-sharer landlords within a month, the Court has inherent power to relieve the latter against the time limit for making an application under Sub-section 4 (a) and an application made by a co-sharer landlord under Sub-section 4 (a) will be allowed provided it is filed within a reasonable time of the service of the notice upon him, although it is filed after a month from the date of the application under Sub-section (1).

Mr. Das Gupta appearing for the petitioner has argued that the decisions under the old Section 26F will not apply to Section 26F after the amendment of 1938, because u/s 188, Bengal Tenancy Act, as it stood before the amendment of 1938 it was obligatory upon a co-sharer landlord to implead the remaining co-sharers in an application u/s 26F; whereas after the amendment of 1938, a co sharer tenant in making an application u/s 26F is not required to implead the other co sharer tenants. Reliance has also been placed on the decision in Gobardhan Bar Vs. Gunadhar Bar, , where it has been held that after the amendment of 1938 co sharer tenants are not necessary parties to an application u/s 26F. With regard to this argument it is to be noticed that a transferee co sharer is certainly a necessary party to an application u/s 26F and Sub-section (3) provides for a notice to be given to the transferee. The transferee co sharer tenant in a proceeding u/s 26F after the amendment of 1938 therefore stands in the same position as a co sharer landlord in a proceeding u/s 26F before the amendment. Consequently the principle of the decision in Satish Chandra Banerjee and Others Vs. Jogendra Krishna Banerjee and Others would apply to the case of a co sharer tenant who is a transferee and if no notice is served on him within a month by the fault of the Court he must be allowed to pre-empt if he applies within a reasonable time from the service of the notice.

But the difficulty in applying this principle is that in the Special Bench decision of Asmatali Sharip Vs. Mujaharali Sardar and Others, it was laid down that the doctrine of reasonable time is confined to cases of equitable relief which might be refused by the Court if the applicant slept over his rights and the relief by way of pre emption cannot be said to be an equitable relief. The cases relied upon by the appellate Court in the present case seem to have been overruled by implication by the aforesaid Special Bench decision.

We have then to consider the question whether the present case is governed by the Special Bench decision in Asmatali Sharip Vs. Mujaharali Sardar and Others, . That decision will apply only to cases where no notice was served u/s 26C and where the special rule of limitation provided for by Section 26F(4)(a) is not applicable. The language of Section 26F(4)(a) is clear. It provides that the co-sharer tenant may apply either within the time provided for in Sub-section (1) i. e., within 4 months of the service of notice u/s 260 or within one month from the date of the application whichever is later. In the case of Golam Ehiya Vs. Abdul Rob and Others , Blank J., sitting singly appears to have held that the controlling words in Section 26F (4)(a) are "whichever is later." In other words, if the first fixed point, (i. e., four months from the date of service of notice u/s 260) does not exist in a particular case, the entire provision about the special limitation is inapplicable. From the facts of that case it appears that there the notice u/s 260 (4) was mandatory and Blank J., held that the right of a co sharer tenant to obtain pre-emption could not be defeated by non service of the statutory notice. In the case before us, the opposite party being a transferee was not entitled to the statutory notice. Consequently we have to hold that the decision given by Blank J., in Golam Ehiya Vs. Abdul Rob and Others will not apply to the facts of the present case.

On the plain language of Sub-section 4 (a) of as. 26F, the starting point in the present case is the date of the application by the original applicant, namely, 16th April 1948 and we are not entitled to hold that the starting point is the date of service of the notice under Sub-section (3) of Section 26F. The application filed by the opposite party on 19th July 1948 being beyond one month from the date of the application by the original applicant must accordingly be held to be barred by limitation.

The rule is accordingly made absolute. The orders of the Courts below must be set aside and the application filed by opposite party must be dismissed. There will be no order as to costs of this Court.

R.P. Mookerjee, J.

I agree.