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1946 DIGILAW 239 (CAL)

Jahiruddin Gain v. Mohammad Shoukat Ali Biswas

1946-11-14

body1946
JUDGMENT Mukherjea, J. - This Rule is directed against the judgment of the District Judge, Nadia, made in Miscellaneous Appeal No. 31 of 1945 by which he, reversed an order of the Munsif of Meherpur made in the proceeding under sec. 26F of the Bengal Tenancy Act. The facts which are material for our present purposes lie within a very short compass, and are for the most part uncontroverted. One Basiruddin Biswas had a 4 annas share in an occupancy holding, which was sold in execution of a money decree against him and purchased by the Petitioners Nos. 1 to 4 in the present Rule on June 16, 1944. The sale was confirmed on July 18 following. It appears that on December 1, 1944, one Elahi Baksha, who happens to be related to the Opposite Parties Nos. 1 to 3 and who is a co-sharer in the occupancy holding, made an application for pre-emption against the purchasers. His application was rejected on February 13, 1945. On February 20, 1945, the Opposite Parties Nos. 1 to 3 who purport to be co-sharers as well, came up with a fresh application for pre-emption under sec. 26F sub-sec. (1) of the Bengal Tenancy Act. The trial Court held that if the application could be treated as one under sec. 26F (1) of the Bengal Tenancy Act, it was within time, as the applicants for pre-emption came to be aware of the sale only on November 30, 1944, and the application was presented on February 20, 1945. The Munsif held, however, that as Elahi Baksha, the other co-sharer, had already made an application on December 1, 1944, and the present applicants for pre-emption were aware of that application their only remedy was to join as co-applicant in Elahi Baksha's petition under the provisions of sub-sec. (4) of sec. 26F of the Bengal Tenancy Act. In this view of the case the learned Munsif dismissed the application. 2. On appeal the Judgment was reversed and the learned District Judge has held that sub-sec. (4) of sec. 26F does not provide the exclusive remedy to a co-sharer when another application for pre-emption has been made by other co-sharers. 3. In my opinion the view taken by the learned District Judge is right. A glance at the language of sub-sec. On appeal the Judgment was reversed and the learned District Judge has held that sub-sec. (4) of sec. 26F does not provide the exclusive remedy to a co-sharer when another application for pre-emption has been made by other co-sharers. 3. In my opinion the view taken by the learned District Judge is right. A glance at the language of sub-sec. (4) would convince anybody that the provision embodied therein is merely permissive, and the last lines of the paragraph make it perfectly clear that a co-sharer has a two-fold remedy open to him, namely, either to make an independent application under sub-sec. (1) of sec. 26F, or to join in an application already made by another co-sharer as provided for in sub-sec. (4). So far as the present case is concern even if the Opposite Parties Nos. 1 to 3 were aware of the proceedings started at the instance of Elahi Baksha, they could certainly make an independent application themselves under sub-sec. (1) of sec. 26F, and as the finding of both Courts is that they have come within reasonable time from their knowledge of the date of sale, I do not think that their application is liable to be dismissed. 4. The result is that I concur in the view taken by the learned District Judge and discharge this Rule. I make no order as to costs.