MUKUNDALAL ROY Vs. SUDARSHAN MUKHERJI

JUDGEMENT

(1.) These two rules are directed against an order made by the Munsif of Munshiganj, dated June 30, 1933, whereby he rejected two applications made by the present petitioner, Mukundalal Roy of Nagarnandi under Section 26-F, Bengal Tenancy Act (VIII of 1885, as amended by Act IV passed by the Bengal Legislative Council in 1928). The applications were opposed by the opposite party in the present proceedings, Sudarshan Mukherji (who was the purchaser of the holdings to which the applications refer), on the ground that the applications were made beyond the limit of time provided for by the terms of Section 26-F. There was also a subsidiary ground that the applicant could have no relief without paying off the mortgage debts, which the purchaser had paid off after he had purchased the holdings in question. The applications were filed on December 1, 1932. One of the kabalas effecting the transfer of one of the holdings was dated April 9, 1932. The other kabala was not filed in the proceedings before the Munsif. A notice of the transfer of the holdings was affixed on the notice board of the appropriate Collectorate on May 30 1932. It was kept on the notice-board for a period of one month and then on June 30, 1932, an order was recorded to the effect that notice had been served by being displayed on the notice-board. The learned Munsif came to the conclusion that the applicant "should have come within sixty days from June 30, 1932" and he accordingly, held that, as the applications were only filed on December 1, 1932, the applicant, as the landlord of the transferred holdings, had not "come" within the prescribed period from the date of the service on the notice-board, The applicant's case was that by reason of the notice having been sent to a wrong address he had never received them. The learned Munsif took the view that the law prescribes service by affixation on the notice-board under certain conditions and that such service was a proper service.

(2.) Section 26-F(1) so far as relevant for our purpose, says that: The immediate landlord of a holding or the transferred portion or share may, within two months of service of notice issued under Section 26-C or Section 26-E, apply to the Court that the holding or portion or share thereof shall be transferred to himself.

(3.) It is necessary, therefore, to ascertain what is meant by service of notice for the purpose of this section. The manner of service is laid down in Ch. VI of the Bengal Government Rules, which were made in the exercise of powers conferred by Sub-section (7) of Section 39 and Section 189 of the Act and were published on March 28, 1929. Rule 25(1) runs as follows: Notices under Secs.12, 13, 15, 18, (1)(a), 28-C 26-E, 26-F, 26-H and 48-H of the Act shall contain, so far as may be possible the particulars given in forms Nos. 2 to 7 appended to these Rules.