1. This case arises out of a proceeding under Section 26P, Ben. Ten. Act, as it stood before the amendment in the year 1938. The material facts are as follows: One Rama Nath Barik obtained a decree for money against one Chandra Mohan Pramanik and in execution of that decree had a tenancy which Chandra Mohan Pramanik held under opposite parties 1 to 7 put to sale. The tenancy was described as a mourashi mokarari jama. The decree-holder, Rama Nath Barik, purchased the tenancy in the auction sale. Notices of the sale and the necessary landlord's fees according to the provisions of Section 13, Ben. Ten. Act, read with Section 18 of the same Act, were sent to the landlords opposite parties and those notices were actually served on 20-9-1937. On 27-8-1940, the landlords made an application under Section 26J, Ben. Ten. Act, praying for a declaration that the tenancy was in fact an occupancy raiyati holding and not a mourashi mokarari jama and claiming a larger landlord's fee. This application was allowed on 15-2-1941. In the meantime the auction-purchaser Ramanath Barik had sold a portion of the holding to the present petitioner Asutosh Sasmal on 25-5-1939, that is to say, after the notices under the provisions of Section 13, Ben. Ten. Act, had been served on the landlords and after the amendment of the Bengal Tenancy Act in 1988, but before the institution of proceedings under Section 26J, Ben. Ten. Act, by the landlords. The remaining portions of the jote were also sold by Ramanath Barik to the opposite parties Nos. 9, 10 and 11. After succeeding in their application under Section 26J, Ben. Ten. Act, the landlords made an application on 15-4-1941, under Section 26F, Ben. Ten. Act, as it stood before 1938 for pre-emption. The present petitioner opposed the application. The objections were overruled and the application of the landlord was allowed.
2. The present petitioner has obtained this Rule and at the time when the Rule was obtained, two grounds were urged. The first ground was that inasmuch as the application under Section 26P had been made after the amendment of the Bengal Tenancy Act in 1938, the application ought not to have been allowed. This question has recently been before a Full Bench of this Court and it has been decided by the Full Bench that an application made in these circumstances is maintainable : Jatindra Nath De v. Jetu Mahato ('46) 33 A.I.R. 1946 Cal. 339. In view of the decision of the Full Bench this question has not been argued before me.
3. The only question argued before me was the question of limitation. Mr. Rama Prosad Mookerjee for the petitioner argued that Section 26F, Ben. Ten. Act, as it stood before 1938 provided a period of limitation of two months in which the immediate landlord of the holding must make his application. This period of limitation of two months according to Mr. Rama Prosad Mookerjee was to run either from the date of service of the notice under Section 26C or Section 26E upon the landlords or from the date of the landlords' knowledge. Therefore, inasmuch as notices were served on the landlords on 20-9-1937, and the application was not made until 15-4-1941, Mr. Mookerjee argued that it was barred by limitation. Mr. Mookerjee further contended that the period of limitation in this particular case was not extended by virtue of the provisions of Section 26J(3), Ben. Ten. Act, as it stood before 1938.
4. Mr. Mookerjee's argument was that the period of two months from the date of service of notice or from the date of the landlords' knowledge had expired before any proceeding under Section 26J had been instituted; and he argued that the right to make the application under Section 26F had been lost before any application under Section 26J had been made and that the making of an application under Section 26J could not revive the lost right. Section 26P provided that the immediate landlord of the holding or the transferred portion or share might within two months of the service of notice issued under Section 26C or Section 26E apply to the Court that the holding or portion or share thereof should be transferred to himself. There was nothing in the section itself to the effect that the application should be made within two months of the knowledge of the transfer. This Court has in a number of cases where no notice has been served allowed application to be made within two months of the knowledge of the transfer, but there was no specific provision to this effect in the section. Moreover, the section provides that the application may be made within two months of the service of notice issued under Section 26C or Section 26E.
5. In the present case, at the time of the auction sale, the tenancy was described as a mourashi mokarari jama; it was not described, as an occupancy raiyati holding. Consequently the notices were sent out to the landlords and the transfer fee was sent to the landlords under the provisions of Section 13, Bengal Tenancy Act and not under the provisions of Section 26E. It follows, therefore, that strictly speaking there was no service on the landlord of the notice issued under Section 260 or Section 26E. Therefore, the strict-words of Section 26F are not applicable in the present case.
6. Mr. Mookerjee pointed out however that even if the notice was not issued under Section 26C or Section 26E, intimation of the sale was in fact given to the landlords by the notice and accordingly the landlords had notice of the transfer, at all events on 20-9-1937. Mr. Mookerjee, therefore, contended that the period of limitation for applying under Section 26F was a period of two months from the date on which the landlords had knowledge of the transfer, that is, two months from, 20-9-1937. Section 26J(3) provides:
The provisions of Section 26F shall apply to the case of a transfer referred to in Sub-section (1) and the immediate landlord shall be competent to exercise his rights of purchase under that section within two months of the date of payment into Court of the balance of the landlord's transfer fee and the compensation allowed.
In the present case, as pointed out above, there was an application by the landlords under Section 26J on 27-8-1940. That application was allowed on 15-2-1941, and the Court held that the landlords were entitled to the additional transfer fee. The additional transfer fee has, I am informed, not yet been deposited. It follows, therefore, that the period of two months from the date of payment into Court of the balance of the landlord's transfer fee referred to in Section 26J, Sub-section (3) has not yet expired. Therefore, if Section 26J(3) is applicable, the application of the landlords under Section 26F was not time-barred.
7. As I have pointed out above, the notice issued under Section 260 or Section 26E was never served on the landlords. The specific provision for limitation contained in Section 26F(1) has, therefore, no application as there is no starting point for limitation. The specific provision in Section 26J(3) apparently applies in the present case. The only justification for holding that it does not apply is that the application has not been made within two months of the knowledge of the transfer. There is no provision of law that requires the application to be made within two months of the knowledge of the transfer. That is a requisite which has been imposed by the Court in some cases but is not provided by the Legislature. The period of limitation provided by Section 26J(3) has been specifically provided by the Legislature in the statute. I am unable to hold that a specific provision made in the statute can be nullified by a practice of the Court which is not contained in any particular provision of the statute. In this view I am unable to hold that Section 26J(3) has no application in the present case because the landlords had knowledge of the sale more than two months before the application was made. The present application comes clearly within the provisions of Section 26J(3) and there is nothing in the statute itself prohibiting the making of the application under the conditions in which it was made. In this view I hold that the application was not barred by limitation and was properly allowed in the Court below. This rule must, therefore, be discharged with costs-hearing fee one gold mohur.