TARAPADA ROY Vs. PULIN BEHARI NASKAR

JUDGEMENT

(1.) This Rule was obtained by the Petitioner who figured as the sole applicant in an application under Section 26F of the Bengal Tenancy Act for pre-empting two-thirds share in an occupancy raiyati holding which is now admittedly held by opposite party, Pulin Behari Naskar. The raiyati holding in question has been recorded in khatiyan 98, mouza Khond Mohadebpur, and the Petitioner purports to have purchased the entire holding at a court sale as early as in 1939. It is, however, a fact that one Hem Nalini instituted a rent suit, being rent suit No. 94 of 1945, against some sub-tenants of this holding making the present Petitioner a pro. forma Defendant in that suit. The pro forma Defendant raised a question in the rent suit that he was the sole landlord of the sub-tenants and Hem Nalini had no interest in the holding. During the pendency of the suit the interest of Hem Nalini was assigned to the present opposite party and he was substituted in her place. It is an admitted fact that the rent suit was fought up to the High Court in second appeal where it was finally decided that the Petitioner has got only one-third share in the raiyati holding in question and the opposite party has got the remaining two-thirds share. This judgment was pronounced on May 25, 1950. On the basis of that judgment, the present application for pre-emption was filed by the Petitioner in the trial court on June 11, 1950. That application was rejected by the learned Munsif on two grounds, first, that the money deposited by the Petitioner fell short of the requisite amount, and secondly, the application was barred by limitation. On an appeal being taken against this order, it was held by the learned Subordinate Judge who heard the appeal that the money deposited by the applicant was sufficient but that his application was barred by limitation. This last finding of the learned Subordinate Judge has been challenged by the present Petitioner in this Rule.

(2.) The only contention urged on behalf of the Petitioner by Mr. Ganguli was that in considering the question of limitation the period between June 2, 1945, on which date the kobala which furnishes the claim for pre-emption was executed, and May 25, 1950, on which date the judgment of the High Court in the rent suit was finally pronounced, should have been excluded from computation, inasmuch as during this period the present Petitioner was bona fide prosecuting his case for the same reliefs which he now seeks on the application under Section 26F of the Bengal Tenancy Act. It may be incidentally mentioned here that both parties agreed before me that no notice of the transfer made on the basis of the kobala, dated June 2, 1945, was served on the Petitioner and so limitation in this case would be governed by the provisions of Article 181, Schedule I, of the Indian Limitation Act. It is, however, clear that the Petitioner's application must be rejected on the ground of limitation unless he succeeds in getting deduction for the period from June 2, 1945, to May 25, 1950, in computing the period of limitation.

(3.) It was urged on behalf of the Petitioner by Mr. Ganguli that the court below should have excluded the above period in computing limitation under Section 5 of the Limitation Act because the Petitioner had sufficient cause for not making the application for pre-emption during that period. The relevant portion of Section 5 of the Limitation Act runs as follows: