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Gajendra Nath Mandal Vs. Kunja Behari Mistri and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1936Cal388,166Ind.Cas.492
AppellantGajendra Nath Mandal
RespondentKunja Behari Mistri and ors.
Cases ReferredSecy. of State v. Dhirendra Nath Roy
Excerpt:
- .....under one lilabati debi, who has 6 annas odd share in the zemindari, and her co-sharers are the opposite parties 1 to 5, 6 (a) to 6 (f), 7 (a) to 7 (c), 8 (a) to 8 (e) and 9 to 13. promotha nath dass held the occupancy holding under the patnidar and under opposite parties 1 to 5, 9 to 13 and under bankubehary chatterjee, sankhu behary chatterjee and natbar chatterjee, the predecessors in interest of opposite parties 6 (a) to 6 (f), 7 (a) to 7 (c) and 8 (a) to 8 (e) respectively. natabar had died on 31st august 1933, i.e. before the transfer, and bankubehary and sankha behary, on 28th march 1934 and 27th july 1934, respectively, i.e. after the transfer. in the notice of the transfer the names of the landlords were stated to be the petitioners, the opposite parties 1 to 5, 9 to 13 and.....
Judgment:

R.C. Mitter, J.

1. This Rule is directed against the order of the learned Munsiff of Tamluk, Third Court, by which the application for pre-emption made by the petitioner before me, Gajendra Nath Mandal, under Section 26-F, Ben. Ten. Act, has been dismissed. Opposite Party 14, Promotha Nath Dass, who is the tenant of an occupancy holding, sold 8 acres of land out of his holding to opposite party 1, Kunja Behary Mistry, by a registered conveyance dated 10th October 1933. Gajondra Nath Mondal is the patnidar under one Lilabati Debi, who has 6 annas odd share in the zemindari, and her co-sharers are the opposite parties 1 to 5, 6 (a) to 6 (f), 7 (a) to 7 (c), 8 (a) to 8 (e) and 9 to 13. Promotha Nath Dass held the occupancy holding under the patnidar and under opposite parties 1 to 5, 9 to 13 and under Bankubehary Chatterjee, Sankhu Behary Chatterjee and Natbar Chatterjee, the predecessors in interest of opposite parties 6 (a) to 6 (f), 7 (a) to 7 (c) and 8 (a) to 8 (e) respectively. Natabar had died on 31st August 1933, i.e. before the transfer, and Bankubehary and Sankha Behary, on 28th March 1934 and 27th July 1934, respectively, i.e. after the transfer. In the notice of the transfer the names of the landlords were stated to be the petitioners, the opposite parties 1 to 5, 9 to 13 and Nat bar, Benkubehary and Sankhabehary. Natbar was dead some time before the transfer but still he and not his heirs, the opposite parties 8 (a) to 8 (e), were named as one of the landlords in the notice of transfer.

2. The notice of transfer was served on the petitioners on 26th December 1934 and he made the application for preemption on 21st January 1935. In his application he mentioned the names of opposite parties 1 to 5, 9 to 13, Bankubehary, Sankha Behary and Natbar, as his co-sharer landlords. The heirs of the last mentioned three persons were not made parties, the petitioners apparently proceeding on the assumption that they were still alive. In fact he has made a statement on oath, that he being a patnidar under one of their co-sharers, he did not know of their death at the time when he filed his application for preemption, but was for the first time put on enquiry by the objection raised by the opposite party 1 on 23rd March 1935. He states that being put on enquiry he came hurriedly to Calcutta, went to the residence of the said three persons and came to know by proper verification early in April 1934 that the said three persons had died on the dates mentioned above and that their heirs were the opposite parties 6 (a) to 6 (f), 7 (a) to 7 (c) and 8 (a) to 8 (e). These statements of his remain practically uncontradicted, but I do not consider them material as Section 5, Limitation Act, has not been extended to applications made under Section 26-F. He first filed two applications for substitution and later on, being advised that as the said three persons had died before he filed his application for pre-emption, he made an application for adding the heirs of the said three persons as parties to his application for pre-emption. This application for addition of parties was made on 27th April 1935. It has been rejected by the learned Munsiff, who after rejecting it has held that the application for pre-emption is defectively constituted as all the landlords are not parties and he has dismissed it.

3. The question therefore is whether the Munsiff was right in throwing away the petitioner's application for addition of parties, for if that action of the Munsiff is right, his order dismissing the application for pre-emption is manifestly right. Before I deal with the said question, I should point out that on the state of the record it may be held that Bankubehary and Sankha Behary had died before the service of the notice of transfer. The position then is this that no notice of transfer was served on Bankubehary Sankhabehary and Natabar, the persons named in the notice of transfer as some of the cosharer landlords, nor on their legal representatives.

4. In my judgment the rule ought to be discharged, though I do not agree with the extreme contention of the opposite party No. 1 which I will notice hereafter. An application for pre-emption based on Section 26-F must be made within two months of the service of notice issued under Section 26-C or Section 26-E. The service spoken of here must necessarily mean the service on the persons filing the application for pre-emption. The case where there is one immediate landlord of the holding does not present any difficulty. But there may, as there usually are, be many such landlords. In those classes, of cases if the notice issued under Section 26-C or Section 26-E has been served on all and all file the application for preemption, the case also does not present any difficulty. Both these cases are governed by the terms of--the statute. The third type is where all the cosharer landlords have not been served with such a notice. All the cosharer landlords may file the application for pre-emption, i.e., some who have been served with the said notice and the rest not served. In this case there is a hiatus in Section 26-F and it has been held that there is no time limit prescribed in the statute so far as the landlords not served with such notice are concerned. They can file the application within a reasonable time of the transfer: Suryya Kumar Mitra v. Munshi Noabali 1932 Cal 289, Baikantha Chandra v. Samsul Huq 1934 Cal 662. The fourth case is where all the landlords have been served with such a notice and some of them only file the application for pre-emption, and the fifth case is where only some of the cosharer landlords have been served with such notice, and the rest have not been served, and the cosharer landlords filing the application for pre-emption are those on whom such notice has been served. The case before me is that of the fifth class.

5. These are the typical cases, but other cases may be contemplated, but they would really be a combination of the fifth type with the third type which I have mentioned above; that is where some of the co-sharers, some served with such a notice and some not so served, and not all the co-sharers landlords file the application for pre-emption. To provide for these cases where some of the cosharer landlords file the application for pre-emption the legislature has enacted Section 188 and Section 26-F, Sub-section 4 Clauses (a) and (b). These cases would be of the fourth and the fifth types, or a combination of the fifth type with the third type as indicated above. The first requisite is that the remaining cosharer landlords must be made opposite parties in the application for pre-emption filed by some of the cosharer landlords in the manner provided in sub-section 1 and 2, Section 148-A; that is to say all the remaining cosharer landlords must be made opposite parties, and on the application being admitted a summons or notice in the prescribed form calling upon the said cosharer opposite parties to join as co-applicants must be issued and served. The second requisite is that the co-sharer landlords who file the application for pre-emption are to give an opportunity to the cosharer landlords opposite parties of joining in the application for pre-emption, that is, of becoming co-applicants.

6. In Section 188 the legislature uses the word and ' and are given, etc.' Sub-section 4 (a) Section 26-F prescribes the time limit within which a cosharer landlord opposite party has to make the application for being transferred as co-applicant. In all the aforesaid three cases, which I have mentioned above, where some of the cosharer landlords file the application for pre-emption, it would seem to follow that the application of the co-sharer landlords, who have filed the application for pre-emption, for addition of his co-sharer landlords as opposite parties must be made within the two periods of time mentioned in Sub-section 4 (a), Section 26-F. The question whether a co-sharer landlord opposite party can apply for pre-emption as a co-applicant, when he gets through Court notice of the application for pre-emption after a month of its filing, whether he is made a party in the original application for preemption or added as a party within a month from the date when it is filed need not be considered in this case, as on the dates given above the application for addition of parties, as also the application for substitution in the case before me, were filed much later than one month of the filing of the application for pre-emption. That question will have to be considered when a proper case arises and it may be that the question as to whether a Court will or can relieve a party whose rights have been prejudiced by an act of the Court itself will have to be carefully considered in such a case.

7. The view which I have taken in this case, that the application of the petitioner for addition of some of his co-sharers as opposite parties was not entertainable at the time it was made, accords with the view of my learned brother Lodge, J., in the case of Mahammad Garib Hossein v. Sm. Haliman-nessa Bibi 1936 Cal 231, which decision I follow. It now remains for me to notice the extreme contention of the opposite party No. 1. The learned Advocate appearing for him contends that all landlords are necessary parties to an application for pre-emption. There I agree with him. He further says that if some of the cosharer landlords are left out in the original application for preemption the application for pre-emption becomes a good application only when the co-sharer landlords so left out are added as parties. There also I agree with him. His third point is that Section 22, Lim. Act, applies to the addition of necessary parties and as landlords necessary parties to an application for pre-emption that section furnishes the answer as to when a cosharer landlord originally left and can be added as a party. To substantiate it he cites before me the case of Secy. of State v. Dhirendra Nath Roy 1934 Cal 187. That case lays down the proposition that Section 22, Lim. Act, does not apply to the addition as defendants of proper parties, who are not necessary parties. Having regard to the provisions of Section 22, Lim. Act, and the facts of that case, and observations of my learned brother Mitter, J., at p. 413, left hand column, the words 'necessary parties' have been used in the judgment to mean parties against whom relief has been claimed by the plaintiff. Inasmuch as in an application for pre-emption filed by a cosharer landlord no relief can be claimed against his cosharer landlord, I hold that the contention of the opposite party No. 1, that the defect of parties occurring by reason of the cosharer landlords being left out in the application for pre-emption must be cured within two months of the date of the service of the notice issued under Section 26-C or Section 26-E on the cosharer landlord who had filed the application for pre-emption, is not sound and I overrule it. The result is that for the reasons given above I discharge this rule with costs; hearing-fee one gold mohur, in favour of opposite party No. 1.


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