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DabiruddIn Vs. Krishto Chandra Mukhopadhaya and ors. - Court Judgment

LegalCrystal Citation
Subject Tenancy
CourtKolkata
Decided On
Reported inAIR1932Cal139,136Ind.Cas.470
AppellantDabiruddin
RespondentKrishto Chandra Mukhopadhaya and ors.
Excerpt:
- .....of the landlords under section 26-f, bengal tenancy act. it appears that the landlords who are opposite parties nos.1 and 2, obtained a rent decree on 18th december 1928 against their tenant, opposite party no. 3, for arrears of rant of the period 1924-27. in execution of that decree the landlords purchased the disputed holding on 18th may 1929. on 14th july 1929 the petitioner purchased the disputed holding along with other lands by a private transfer from the defaulting tenant opposite party no. 3. on 2nd september 1929 opposite party no. 3 along with the petitioner deposited the decretal amount under section 174, bengal tenancy act. opposite parties nos. 1 and 2 the decree-holders did not oppose the application for setting aside the sale and they withdrew the amount deposited and.....
Judgment:

S.K. Ghose, J.

1. The petitioner in this rule is a transferee of an occupancy holding and he moves against the order of the lower Court granting the application of the landlords under Section 26-F, Bengal Tenancy Act. It appears that the landlords who are opposite parties Nos.1 and 2, obtained a rent decree on 18th December 1928 against their tenant, opposite party No. 3, for arrears of rant of the period 1924-27. In execution of that decree the landlords purchased the disputed holding on 18th May 1929. On 14th July 1929 the petitioner purchased the disputed holding along with other lands by a private transfer from the defaulting tenant opposite party No. 3. On 2nd September 1929 opposite party No. 3 along with the petitioner deposited the decretal amount under Section 174, Bengal Tenancy Act. Opposite parties Nos. 1 and 2 the decree-holders did not oppose the application for setting aside the sale and they withdrew the amount deposited and the sale was set aside on 18th January 1930. In the meanwhile on 12th December 1929, opposite parties Nos. 1 and 2 were served with notice of the transfer to the petitioner under Section 26-C, Bengal Tenancy Act. Thereupon opposite parties Nos. 1 and 2 filed an application for preemption under Section 26-F.

2. It is contended in support of this rule that as the landlords had agreed to have the rout sale set aside and accepted the deposit of decretal amount from the petitioner, they were estopped from applying for preemption as against the petitioner. It is however not correct that the deposit under Section 174 of the Act was made by the petitioner alone. As mentioned already the judgment-debtor was also a party and Sub-section (4), Section 170, expressly provides that the withdrawal by the decree-holder landlord of the amount deposited shall not operate as an admission of the transferability of the tenancy. Further from the terms of Section 26-F, it is clear that the landlord is not de-barred from filing an application for preemption by reason of the fact that he had accepted rent from the transferee. Sub-section (3), Section 26-F, expressly provides that the Court shall give notice to the transferee to appear within a certain time) and state ' what other sums ' be-sides the consideration money ' he has paid in respect of the rent for the period after the date of transfer.' Sub-section (8) provides that from the date of the making of the order under Sub-section (5) the liability of the transferee for the rent due on account of the holding shall cease. Suppose for instance, when one purchases a holding from a tenant, there are already rents due, the transferee may pay all those arrears and may also proceed to pay rents as they become due after his purchase. Because the land-lord has the right of preemption under Section 26 F, it does not follow that be must refuse to accept rent from the transferee and go without any rent until his application under Section 26-F was filed and decided. On the contrary the terms of that section expressly provides for the contingancy of rent being paid by the transferee after his purchase.

3. The next point urged in support of the rule is this: it appears that in the application under Section 26-F the landlords gave a description of the property and' that subsequently they filed another application on 15th March 1930 in which; it was stated that in the original application there ware certain mistakes in the description of the property which should be corrected. From the order dated 15th March 1980 on the order sheet of the lower Court it appears that the petition for amendment was not actually moved. It is contended that on the landlords own showing the application for preemption does not contain a correct description of the property and therefore the application should not be allowed, on the principle that this being a special privilege granted to the landlord, the provision must be construed strictly. The question however is not whether the description of the property as given in the application under Section 26-F is in all respects the same as that given in the notice under Section 26.C. The question really is whether the two properties are) identical. In this ease it appears that there are certain differences, but they are not material. Dag No. 630 is wrongly described as Dag No. 670 in the application under Section 26-F. In other respects the dag numbers given in the application are correct. The description of the mauzas is also the same, and so are the names of the district, perganna, thana, sub-registration office. The only difference is that the name of the mauza is given in the kobala as ' mauza Amalhara in Denan Settlement ' and in the petition as ' mauza Tola Denan appertaining to Amalhara.' The discrepancy as to area is also insignificant, as in the: petition the area is 1 acre 43 decimal and in the kobala it is 1 acre 44 decimal: vide paras. 10 and 11 of the counter-affidavit filed by the opposite parties Nos. 1 and 2. The lower Court has distinctly found that the discrepancies are right and that they cannot defeat application for preemption.

4. In these circumstances it cannot be said that it was not open to the lower Court to decide the matter in the way it has done. The petition must fail. The rule is discharged with costs the hearing fee being assessed at one gold mohur.


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