GAJENDRA NATH MANDAL Vs. KUNJA BEHARI MISTRI

JUDGEMENT

(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 10 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 28 March 1934 and 27 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 26 December 1934 and he made the application for preemption on 21 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 23 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 27 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.