DHANANJOY MALLICK Vs. ANNADA CHARAN MAITY

JUDGEMENT

(1.) Two questions of law are raised in this application against an order allowing an application for pre-emption, which was filed under the provisions of Sub-section (1) of Section 26F, Bengal Tenancy Act. The first is whether the petitioner is estopped from saying that the tenancy in question was an occupancy raiyati holding. The second is whether the application was barred by limitation.

(2.) The tenancy in question appears to have belonged to a number of co-sharers including Krishna Prosad Maity whose son Annada Charan Maity has filed the present application under Section 23 F (1) and others. Krishna Prosad sold a portion of his interest to one Bhagabati Charan and in the Kobala described the tenancy as a raiyati mokarari holding. That sale took place on 14-8-1919. On 2-11-1946, Bhagabati Charan sold this very interest to Dhananjoy Mullick. One Haradhan Ghorai filed an application under Section 26 F (1) on 21-4-1949. The present application by Annada Maity has been filed on 20-9-1949. It is admitted that notice under Section 26 C, Bengal Tenancy Act was not served on Annada Maity though he as a co-sharer was entitled to it. It was urged on behalf of the present applicant that the application by Annada Maity not being within the period mentioned, Sub-section 4 (a) of Section 26 F, Bengal Tenancy Act must be held to be totally barred. This argument overlooks the fact that the present application by Annada Maity is not the application to join in the application filed by Haradhan Ghorai. It is an independent application one under Section 26 F (1), Bengal Tenancy Act. Mr. Janah on behalf of the petitioner contended that clause (a) of Sub-section 4 of Section 26 F, Bengal Tenancy Act does, by implication, take away a co-sharer's remedy under Sub-section 1 of Section 26 F. This contention, in my opinion, should not prevail. The remedy given to a co-sharer by Sub-section (1) is to apply to a Court for the portion which has been sold 'to be transferred to himself. The remedy in Clause (a) of Subsection (4) is to apply to join in an application which has already been filed by some other co-sharer tenant under Sub-section (1). It is quite clear that these are two distinct remedies. The matter is made very clear by the concluding words of Sub-section 4 (a) which runs thus: 'Any co-sharer tenant who has not applied under either Sub-section (1) or this Sub-section shall not have any further power of purchase under this section'. These words clearly indicate that the Legislature's intention was to treat the two remedies as distinct and independent.

(3.) That the remedies are independent was the view taken by Mukherjea" J. sitting singly in the case of 'Jahiruddin Gain v. Mohammad Shoukat Ali Biswas', 52 Cal. W. N. 95. His Lordship observed in this case thus: 'A glance at the language of Sub-section (4) would convince anybody that the provision embodied therein is merely permissive, and the 1st line of the paragraph makes it perfectly clear that a co-sharer has a two-fold remedy open to him, namely, either to make an independent application under Sub-section (1) of Section 26 F, or to join in an application already made by another cosharer as provided for in Sub-s. (4).'