ASUTOSH SASMAL Vs. BHUPENDRA NARAYAN BERA

JUDGEMENT

(1.) This case arises out of a proceeding under Section 26P, Ben. Ten. Act, as it stood before the amendment in the year 1938. The material facts are as follows: One Rama Nath Barik obtained a decree for money against one Chandra Mohan Pramanik and in execution of that decree had a tenancy which Chandra Mohan Pramanik held under opposite parties 1 to 7 put to sale. The tenancy was described as a mourashi mokarari jama. The decree-holder, Rama Nath Barik, purchased the tenancy in the auction sale. Notices of the sale and the necessary landlord's fees according to the provisions of Section 13, Ben. Ten. Act, read with Section 18 of the same Act, were sent to the landlords opposite parties and those notices were actually served on 20-9-1937. On 27-8-1940, the landlords made an application under Section 26J, Ben. Ten. Act, praying for a declaration that the tenancy was in fact an occupancy raiyati holding and not a mourashi mokarari jama and claiming a larger landlord's fee. This application was allowed on 15-2-1941. In the meantime the auction-purchaser Ramanath Barik had sold a portion of the holding to the present petitioner Asutosh Sasmal on 25-5-1939, that is to say, after the notices under the provisions of Section 13, Ben. Ten. Act, had been served on the landlords and after the amendment of the Bengal Tenancy Act in 1988, but before the institution of proceedings under Section 26J, Ben. Ten. Act, by the landlords. The remaining portions of the jote were also sold by Ramanath Barik to the opposite parties Nos. 9, 10 and 11. After succeeding in their application under Section 26J, Ben. Ten. Act, the landlords made an application on 15-4-1941, under Section 26F, Ben. Ten. Act, as it stood before 1938 for pre-emption. The present petitioner opposed the application. The objections were overruled and the application of the landlord was allowed.

(2.) The present petitioner has obtained this Rule and at the time when the Rule was obtained, two grounds were urged. The first ground was that inasmuch as the application under Section 26P had been made after the amendment of the Bengal Tenancy Act in 1938, the application ought not to have been allowed. This question has recently been before a Full Bench of this Court and it has been decided by the Full Bench that an application made in these circumstances is maintainable : Jatindra Nath De V/s. Jetu Mahato ( 46) 33 A.I.R. 1946 Cal. 339. In view of the decision of the Full Bench this question has not been argued before me.

(3.) The only question argued before me was the question of limitation. Mr. Rama Prosad Mookerjee for the petitioner argued that Section 26F, Ben. Ten. Act, as it stood before 1938 provided a period of limitation of two months in which the immediate landlord of the holding must make his application. This period of limitation of two months according to Mr. Rama Prosad Mookerjee was to run either from the date of service of the notice under Section 26C or Section 26E upon the landlords or from the date of the landlords knowledge. Therefore, inasmuch as notices were served on the landlords on 20-9-1937, and the application was not made until 15-4-1941, Mr. Mookerjee argued that it was barred by limitation. Mr. Mookerjee further contended that the period of limitation in this particular case was not extended by virtue of the provisions of Section 26J(3), Ben. Ten. Act, as it stood before 1938.