1. This Rule has arisen out of an application by the petitioner for the transfer of certain land to them under Section 26-F, Ben. Ten. Act. This application was made on 17th November 1931. Subsequently, by an order of the Court, dated 9th January 1932, the petitioners added the other cosharer landlords, the opposite parties Nos. 5 to 20 in this application. Thereafter, these opposite parties entered appearance, refused to exercise their right of pre-emption and gave their consent to the purchase of the land by the petitioners. The learned Munsif rejected the petitioners' application on the ground that it was not maintainable, inasmuch as, at its inception, the application was not in form in accordance with the provisions laid down in Section 188, Ben. Ten. Act. This order the petitioners seek to set aside.
2. A notice was served on the landlords in this case on 17th September 1931, and it is admitted that the other cosharer landlords were not made parties within two months of the date of the notice or within one month from the date of the application. Section 188, Tenancy Act, lays down that
subject to the provisions of Section 148-A, where two or more persons are cosharer landlords, anything which the landlord is under this Act required or authorized to do must be done either by both or all those persons acting together or by an agent authorized to act on behalf of both or all of them: Provided that one or more cosharer landlords, if all the other cosharer landlords are made parties defendant to the suit or proceeding in manner provided in Sub-sections (1) and (2), Section 148-A, and are given the opportunity of joining in the suit or proceeding as co-plaintiffs or co-applicants, may file an application under Sub-section (1), Section 26-F.
3. It has been argued that, in the present case, inasmuch as the other cosharer landlords were ultimately made parties, no question of limitation arises and that the deficiency in the original application was made good inasmuch as the other cosharer landlords came forward subsequently and stated that they had no wish to purchase the land. In support of this argument, an unreported case of this Court Bahirdas Pandit v. Shitaldas Chatterji Civil Revn. No. 184 of 1930, Decided on 24th July 1930, by S.K. Ghose, J. has been referred to. In that case, the cosharers did not join in the original application, and, having been subsequently added as parties to the application it was held that no question of limitation arose. This was a decision of a learned Judge sitting singly. We find, on the other hand, the contrary view taken by a Division Bench in Barkatulla Pramanik v. Ashutosh Ghose : AIR1933Cal460 . It is expressly laid down in Section 188 of the Act that the cosharers must be given the opportunity of joining the suit as plaintiffs at the time the application is filed. It seems to me therefore that inasmuch as the cosharers had not been given this opportunity before the period of limitation, the application is not maintainable under Section 188, Ben. Ten. Act. This was the view taken by the learned Munsif. This Rule is therefore discharged. In the circumstances of this case there will be no order as to costs.
4. I agree.