SHIBA PRASAD GERUA Vs. MANMATHA NATH SEN GUPTA
LAWS(CAL)-1961-1-16
HIGH COURT OF CALCUTTA
Decided on January 18,1961

SHIBA PRASAD GERUA Appellant
VERSUS
MANMATHA NATH SEN GUPTA Respondents

JUDGEMENT

- (1.) THIS is a petition under section 115 of the Code of Civil Procedure against an order passed by the Subordinate Judge, Midnapore, in an appeal arising out of proceedings under section 26f of the Bengal Tenancy Act. This application is filed on behalf of the purchaser. The opposite party No. 1 applied for pre-emption under the aforesaid section before the Munsiff at Tamluk on the ground that the Opposite Party No. 3 Upendra, transferred his share in the property to the petitioner on the 13th July, 1948 and on 13th November, 1958-more than 10 years after the sale-he had come to know about the sale and therefore filed the petition for pre-emption. It has been alleged that the petitioner and the opposite party No. 3 were related, lived in the same Bastu, it was collusively stated in the sale deed that there was no co-sharer. The result was that no notice under section 26c of the Bengal Tenancy Act was served upon the applicant for pre-emption and he was thus kept out of knowledge by collusion and fraud between the purchaser and the vendor. The objection that was taken was that there was no fraud at all and the issue that was raised with respect to that matter was issue No. 2 which is as follows:- "whether any fraud was committed to keep the applicant from the knowledge of the sale of the disputed land. "
(2.) THE first court came to the finding that fraud was committed only to the extent that no notice was served on the applicant under section 26c of the Bengal Tenancy Act but the Court found that the applicant for pre-emption had knowledge of the sale and therefore the application was barred by limitation under Article 181 of the Limitation Act.
(3.) AGAINST that the opposite party No. 1 preferred an appeal. The appellate court came to the finding that fraud was perpetuated by opposite parties Nos. 1 and 2 before the trial court upon the petitioner for pre-emption and the effect of that fraud continued till December, 1058 when the petitioner in the trial Court came to know of the sale. He therefore held that the application was not barred by limitation, allowed the appeal and granted a right of preemption to opposite party No. 1 (petitioner in the trial Court ).;


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