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Brojendra Kumar Banerjee and ors. Vs. Symannessa Bibi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal830
AppellantBrojendra Kumar Banerjee and ors.
RespondentSymannessa Bibi
Cases ReferredBaikuntha Chandra Saha. v. Samsul Huq
Excerpt:
- .....j.1. this rule arises out of an application under section 26-f, ben. ten. act. the petitioners are cosharer landlords of a sikimi taluk and the opposite parties nos. 2, 3, 4 and 5 are other cosharer landlords. the opposite party no. 6 sold the land to opposite party 1 and a notice under section 26-c of the act was served upon the petitioners on 27th april 1933. on 26th june following, the petitioners filed the application under section 26-f, ben. ten. act, making the aforesaid purchaser as also the aforesaid cosharer landlords parties and claiming to exercise the right of pre-emption. opposite party 1 appeared and filed an objection stating inter alia that the petitioners and opposite parties 2, 3, 4 and 5 were not the entire body of land-lords. on 12th september 1933, the learned.....
Judgment:

S.K. Ghose, J.

1. This rule arises out of an application Under Section 26-F, Ben. Ten. Act. The petitioners are cosharer landlords of a Sikimi Taluk and the opposite parties Nos. 2, 3, 4 and 5 are other cosharer landlords. The opposite party No. 6 sold the land to opposite party 1 and a notice Under Section 26-C of the Act was served upon the petitioners on 27th April 1933. On 26th June following, the petitioners filed the application Under Section 26-F, Ben. Ten. Act, making the aforesaid purchaser as also the aforesaid cosharer landlords parties and claiming to exercise the right of pre-emption. Opposite party 1 appeared and filed an objection stating inter alia that the petitioners and opposite parties 2, 3, 4 and 5 were not the entire body of land-lords. On 12th September 1933, the learned Munsiff passed an order in the course of which he stated that the petitioners had been misled by opposite-party 1 inasmuch as the notice of transfer itself did not mention the names of other persons who were now alleged to be cosharer landlords. The Munsiff however directed the petitioners to have, those other persons added as parties and granted time till 23rd October 1933. On 16th September the petitioners filed an application for an order upon the opposite party 1 for supplying the names1 of the other persons who had to be made opposite parties. This application was rejected. On 23rd October following, the petitioners filed another application for time in order to enable them to make the amendment by way of addition of parties. The learned Munsiff held that any adjournment would take it beyond the period of limitation. In that view he rejected the application. On 24th October, the application for pre-emption was also rejected. Against these orders the present rule has been obtained.

2. It will appear that the whole trouble has arisen because opposite party 1 now alleged that certain persons who were not made parties in the notice of transfer are cosharer landlords, while it is the case for the petitioners that all the cosharer landlords are already on record. It is necessary that in a matter; Under Section 26-F, all the cosharer landlords should be brought before the Court. But at the same time those cosharer landlords who did not receive notice of the transfer are not bound by the period of limitation of two months of the service of notice which is mentioned in Sub-section (1) of Section 26-F. With regard to such landlords it has been held that they may apply for pre-emption within a reasonable time of their knowledge of the transfer: see the case of Suryya Kumar v. Munshi Noabali, 1932 Cal 289 which is followed in the case of Baikuntha Chandra Saha. v. Samsul Huq, 1934 Cal 662. Now all that the petitioners want is time in order to enable them to make certain other persons parties and no question of limitation arises. The lower Court has not gone into the question as to whether all the cosharer landlords are on the record as alleged by the petitioners. In any case, the lower Court exercised its jurisdiction wrongly in rejecting the petitions for time on the ground of limitation.

3. The orders of 23rd and 24th October must therefore he reversed. The matter would be remanded to the lower Court to allow the petitioners an opportunity to amend their petition by way of addition of parties. When that is done the Court will determine whether all the cosharer landlords have been brought on the record and then proceed to determine the application finally. The rule is made absolute with costs, hearing fee one gold mohur.


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