NITAI CHANDRA DAS Vs. SISIR KUMAR DAS

JUDGEMENT

(1.) THESE two revisional applications are directed against an appellate order affirming an order of a munsif allowing two applications for pre-emption filed by opposite party no. 1 under section 26f, Bengal tenancy Act.

(2.) OPPOSITE Party No. 1 and opposite parties- Nos. 2 to 4 were co-sharer occupancy raiyats of two holdings, one with a jama of Rs. 36-10-11 in Mouza Nischintapur and the other with a jama of Rs. 73 - in Mouza samruk. Opposite party No. 4 filed a suit for partition against opposite parties Nos. 1 to 3 in 1954. A preliminary decree was passed on december 10, 1955, and a final decree was passed on April 2, 1958. On may 16, 1956, opposite party No. 4 sold a demarcated 1. 43 acre of land out of C. S. plot 387 of the holding of Rs. 36-10-11 and a demarcated. 60 acre of land out of the holding of rs. 73/- to opposite parties Nos. 5 to 7. Opposite parties Nos. 5 to 7 in their turn sold the lands to the petitioner on December 12, 1958. Opposite party No. 1 who was a minor at the time of the sale dated May 16, 1956, filed two separate applications for pre-emption of the two transfers on December 15, 1958, and December 18, 1958, respectively. The learned Munsif heard these two applications together and allowed the prayer for pre-emption in respect of both the applications. The petitioner filed two appeals and the appellate Court has affirmed the decision of the learned Munsif.

(3.) MR. Roy Choudhury, who appears for the petitioner, argues that the applications should have been dismissed as barred by limitation. It appears that no notice of the transfers was served on opposite party No. 1, He filed the applications within 3 years from the date of the transfers. Mr. Roy Choudhury submits that notice of the transfer was served on opposite party No. 2 who was the eldest brother of opposite party No. 1 and service on opposite party No. 2 should have been held to be good service on opposite party No. 1. Mr. Roy Choudhury in his frankness, however, admits that the courts below have found that opposite party No. 2 was not the karta of a joint family of opposite parties Nos. 1 to 3 and as such service on opposite party No. 2 could not be said to have been good service on opposite party No. 1. This is a finding of fact and I cannot go behind this in this revisional application. The point about limitation, therefore, fails.