NRITYA GOPAL HAZRA Vs. GOLAM RASOOL
NRITYA GOPAL HAZRA
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Maclean, C J -
(1.) The question raised upon this appeal is a short one, and not, to my mind, one that persents any real difficulty. The real question is, whether the application made by the defendant No. 4, who was an auction-purchaser, requesting the Collector to serve on the incumbrancer a notice declaring that the incumbrance is annulled, was presented by him to the Collector, under Section 167 of the Bengal Tenancy Act, within the period prescribed by that section. Defendant No. 4 was doubtless entitled under Sub-section 2 of Section 165 of the Act, to have the incumbrance annulled, for that sub-section says: "He" (the auction- purchaser) "may in manner provided by Section 167 and not otherwise annul any incumbrance on the tenure or holding."
(2.) We have to consider whether he has complied with the provisions of Section 167, for it is only by compliance with the provisions of that section that he is entitled under the statute to annul the incumbrance on the tenure or holding.
(3.) Section 167 of, the Bengal Tenancy Act runs as follows: "A purchaser having power to annual an incumbrance under any of the foregoing sections, and desiring to annul the same, may within one year from the date of the sale, or the date on which he first has notice of the incumbrance, whichever is later, present to the Collector an application in writing requesting him to serve on the incumbrancer a notice declaring that the incumbrance is annulled." The purchaser, therefore, has two periods given to him within which to make an application, either a year from the date of the sale or a year from the date on which he first has notice of the incumbrance, and the application must be one in writing requesting the Collector to serve on the incumbrancer a notice declaring that the incumbrance is annulled. That section, to my mind, presupposes that the application must state who is the actual incumbrancer, as the person upon whom the notice is to be served, and the effect of that notice is stated in Sub- section (3) of Section 167. The facts of this case are not open to be disputed and they lie within a very narrow compass. It is not disputed that the appellant first had notice of the incumbrance on the 4 of February 1893, and it can scarcely be disputed, upon the appellant's own evidence, that he knew who the incumbrancer was. He tells us, as I read his evidence, that he knew that a man named Bakaullah was the incumbrancer as he in fact was. His evidence is a little confused, but this, I think, is what he means. At any rate just as the year was expiring, oh the 2 February, 1894, he made an application to the Collector and the person mentioned in that application as the incumbrancer and as the person upon whom the statutory notice under Section 167 was, at his request, to be served, was one Sheikh Enatulla.;
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