DINESH CHANDRA CHOUDHURY Vs. RAJENDRA CHANDRA KAR

JUDGEMENT

(1.) The opposite parties 1 and 2 in this rule purchased an occupancy holding from opposite party 16 held by him under the petitioners and opposite parties 3 to 15 and 17 to 34. On 31st December 1935, notice of the transfer under Section 26-C, Ben. Ten. Act, was served on the petitioners and opposite parties 3 to 15 only as they were stated by the purchasers to be the entire body of landlords of the holding. On 27 February 1936, the petitioners applied under Section 26-F of the Act, for preemption in the Court of the Munsiff at Nabinagar impleading therein the purchasers and the remaining co-sharer landlords who were served with notice under Section 26-C of the Act. On 28 March 1936, these co-sharer landlords applied to the Court for being transferred to the category of the petitioners for preemption. On 25 April 1936, the transferees raised the objection that the petition; for preemption was not properly constituted as there are other co-sharer landlords of the holding who had not been made parties to the proceeding. On 9 May 1936, the petitioners applied to the learned Munsiff for amending their application for pre-emption by adding these co-sharer landlords who were left out. This application was allowed and these co-sharer landlords were added as opposite parties 17 to 34. After the amendment, the purchaser objected to the prayer-for pre-emption on the ground that it "was barred by limitation. The learned Munsif accepted this objection of the purchasers and dismissed their application under 26-P on 3 October 1936. The petitioners thereupon obtained the present rule for revising this order of the Munsiff.

(2.) The only point for determination in this rule is whether the application for preemption, is barred by limitation. It is not disputed that opposite parties 17 to 34 are some of the co- sharer landlords of the holding sold. It is also an admitted fact that they were made parties to the proceeding after the period of limitation had expired. By operation of Section 29(2)(a), Lim. Act, the provisions of Section 22 of that Act apply to an application under Section 26-F, Ben. Ten. Act. If a necessary party to a suit or proceeding is added after the period of limitation, the suit or proceeding is barred not only against the added party but also against the original parties. The question therefore is whether opposite parties 17 to 34 were necessary parties to the application under Section 26F when it was presented in Court. If a suit or a proceeding is properly constituted without impleading a certain person as a party to it, that person is not a necessary party to the suit or proceeding. But if without impleading him the suit is not properly constituted he is a necessary party : Kishen Parshad V/s. Har Narain Singh (1911) 33 All 272 at p. 276.

(3.) Section 26-F, Ben. Ten. Act, gives to the immediate landlord of the holding a right to apply for pre-emption. The application for pre-emption is therefore authorized by the Act within the meaning of Section 188, Ben. Ten. Act. By Section 188 (1) the application for pre- emption is to be made either by all the co sharer landlords acting together or by an agent authorized to act on their behalf. If some of the co-sharers only apply under Section 26-F the provisions of Section 148 (1) and (2) must be complied with and all the other co-sharer landlords must be made parties to the proceedings in order to enable them to join in the application for pre-emption as co-applicants. Until and unless this is done the application is not properly constituted. The opposite parties 17 to 34 were therefore necessary parties to the application under Section 26-F when it was presented in Court on 26 February 1936. The application of the petitioners under Section 26-F is therefore barred by limitation. The rule is accordingly discharged with costs, hearing-fee being assessed at two gold mohurs. Bartley, J.