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Civil Revision No. 870 of 1965, decided on 1st June 1967.

Application for pre‑emption‑ Limitation‑Period prescribed in subsection (1) doer not neces sarily attract itself to subsequent impleading of parties mentioned in subsection (2)‑Application for adding other co‑sharers after period of limitation without claiming any relief against them‑Held, maintainable Question of limitation attracted if any relief is prayed against party added after limitation period or such added party himself claims relief under S. 96.

The limitation of a period of four months as set out in sub section (1) of East Bengal State Acquisition and Tenancy Act, 1950 is solely for purpose of making an application. The requirement to implead parties, as set out in subsection (2), is a separate mandate of law and the lay of limitation as set out in subsection (1) does not necessarily attract itself to the provisions of subsection (2), particularly, in view of the language of subsection (3) the parties mentioned in sub section (2) must be impleaded in an application for pre‑emption under section 96 of the Act, but the law of limitation as provided in subsection (1) is not necessarily attracted towards subsequent impleading of parties mentioned in subsection (2).

If the applicant for pre-emption under section 96, subse quently, seeks to add other co‑Sharers as parties in an application without claiming any relief against any other added parties, no further question of limitation, apart from what has been provided for by subsection (1), would arise.

If any relief is prayed for against any party so added the question of limitation would become relevant. Again, if any added party himself claims any relief under the said suction the question of limitation may again be attracted.

Rafizuddin Malik v. Ashraf Ali Sardar P L D 1963 Dacca 963 ref.

Syed Abdul Karim and another v. Harendra Chandra Dhupi and others P L D 1963 Dacca 939 distinguished.

Latifur Rahman for Petitioner.

Nemo for the Opposite‑Parties.

This application raises a simple question. A portion of a certain holding was sold by a co‑sharer tenant to a stranger without notice to other co‑sharers. When a co‑sharer by inheritance came to know of such a sale to a stranger, she filed an application within four months from tile date of her acquiring knowledge of the sale, as stated by her. When the application was made, it was dubious to the applicant as to whether the application should be one under section 26‑F of the Bengal Tenancy Act or under section 96 of the East Bengal State Acquisition and Tenancy Act, 1950 (Act XXVIII of 1951) (hereinafter called the Act). Eventually an application was made under the provisions of section 96 of the latter Act. Sometime after filing the application, the petitioner applied to implead other co‑sharers as parties to the application, in accordance with the requirement of subsection (2) of the aforesaid section 96.

Tile learned Munsif, who tried the application, held that the petitioner was a co‑sharer and that she was not notified of the sale. Furthermore, it was held that she came to be aware of the sale, as alleged by her, and that she made the application within four months from the date of her knowledge of the sale. On the merits of the case the trial Court also came to findings in favour of the petitioner, and, granting the prayer for amendment by which other co‑sharers in respect of the holding were impleaded, allowed the application for pre‑emption.

On appeal by the purchaser, the said application was resisted on all the points which were canvassed in favour of the said party in the trial Court. The appellate Court below also concurrently came to findings in favour of the petitioner. One point, however, which was again vigorously canvassed in the appellate. Court and decided against the appellant is to the effect that even if the application for pre‑emption was made within four months from the date of petitioner's knowledge of the sale the said application would be hit by the provisions of sub section (2) of section 96 of the Act to which the law of limitation prescribed in subsection (1) would be attracted,

That is to say, subsection (1) of that section imposes a limitation of four months from the date of notice or knowledge of the sale upon the making of the application, which would not be a legal application without impleading of parties in accordance with the provisions of subsection (2). The contention is that the period of limitation has to be construed by taking subsections (1) and (2) together. The appellate Court below rejected this point. Opposite‑party, thereafter, obtained the present Rule nisi from this Court against the aforesaid decision of the appellate Court below.

At the hearing of this Rule Mr. Latifur Rahman appeared in support of the Rule and nobody appeared to oppose the same.

So far as the merits of the case are concerned, they are concluded by concurrent findings of fact by the Courts below. The learned Advocate for the petitioner has, therefore, urged the point that the subsequent amendment of the petition by which other co‑sharers were impleaded in the application, in accordance with the terms of section 96 (2) of the Act, would be hit by the provisions of law of the limitation, as stated in subsection (1) of that section, namely, a period of four months from the date of knowledge of the sale, the petitioner being a non‑notified co‑sharer. It is patent that on the applicant's own theory the prayer for impleading other co‑sharers on the application was made long after the expiry of four months from the date on which the applicant came to be aware of the sale. This point is prima facie attractive but would not bear scrutiny.

My attention was drawn to two decisions of this Court on this point. The first is the case of Rafizuddin Malik v. Ashraf Ali Sardar (P L R 1963 Dacca 963). This is a case which has been decided by a Judge of this Court, sitting singly, and it has been held that, in an appli cation by a co‑sharer by inheritance, other co‑sharers need not he impleaded and that the application for pre‑emption would not be bad because such co‑sharers have not been impleaded. This question was re‑agitated in the case of Syed Abdul Karim and another v. Harendra Chandra Dhupi and others (P L D1963 Dacca 939), which is a decision of a Division Bench of this Court. The Division Bench in the aforesaid case P L D 1963 Dacca 939 has exhaustively discussed the provisions of section 96 of the Act. It has been held that in order to succeed in an application for pre‑emption under section 96, the provisions of subsection (2) of that section must be complied with and that the other co‑sharers must be impleaded. Co‑sharers have been divided into three categories and the law relating to such categories has been discussed. I am not concerned with such classification in this case. It would be seen that, in the aforesaid decision by a Division Bench of this Court it was not canvassed that subsequent amendment of the application after a lapse of a period of four months from the date of notice of the sale would be hit by the law of limitation as provided by subsection (1) of that section. This question has, however, been directly mooted before me.

It would be useful to set the first three subsections of section 96 of the Act, which are as follows: ‑

"96. (1) If a portion, or share of a holding of a raiyat is transferred, one or more co‑sharer tenants of the holding may, within four months of the service of the notice given under section 89, or, if no notice has been served under section 89, within four months of the date of the knowledge of the transfer, apply to the Court for the said portion or share to be transferred to himself or themselves; and if a holding or a portion or a share of a holding is transferred, the tenant or tenants holding land contiguous to the land transferred may, within 4 months of the date of the knowledge of such transfer, apply to the Court for the holding or portion or share to b,, transferred to himself or themselves.,

Provided that no co‑sharer tenant or tenant holding land continguous to the land transferred shall have the right to purchase under this section unless he is a person to whom transfer of the holding or the portion or share thereof, as the case may be, can be made under section 90.

(2) In an application made under subsection (1) by a co‑sharer tenant or co‑sharer tenants, all other co‑sharer tenants of the holding and the transferee shall be made parties; and in such an application made by a tenant holding land contiguous to the land transferred, all the co‑sharer tenants of the holding and all the tenants holding lands contiguous to the land transferred and the transferee shall be made parties.

(3) (a) An application made under subsection (1) shall be dismissed unless the applicant or applicants, at the time of making it, deposit in the Court the amount of the consideration money or the value of the transferred holding or portion or share of the holding as stated in the notice under section 89 or in the deed of transfer, as the case may be, together with compensation at the rate of ten per centum of such amount

if we turn to the aforesaid provisions, it would be seen that subsection (1) requires an application for pre‑emption to be made by a co‑sharer within four months from the date of notice of the sale, or within four months from the date of knowledge of the sale when no such notice was issued. This is all that the law requires with regard to the question of limitation.

Subsection (2), as quoted above, is an independent section which provides that in the aforesaid application co‑sharers, as mentioned in the said subsection, must be impleaded. It is futile to describe such categories of so‑sharers either as necessary or proper parties; by mandate of law they must be impleaded and the language of that subsection is clear. It must, therefore, be held that an application under section 96 of the Act cannot be maintained without impleading the parties mentioned in subsection (2) in accordance with the terms of the said subsection.

If we now turn to subsection (3), it would be seen that the requirement of law is to dismiss the application in limine if the necessary deposit of the consideration money as set out in subsection (3) is not made.

If we now turn to consider the aforesaid three subsections together, the position would boil down to this that the limitation) of a period of four months as set out in subsection (1) is solely for purpose of making an application. The requirement to l implead parties, as set out in subsection (2), is a separate mandate of law and the law of limitation as set out in subsection (1) does not necessarily attract itself to the provisions of subsection (2), particularly, in view of the language of subsection (3). The parties mentioned in subsection (2) must be impleaded in an application for pre‑emption under section 96 of the Act, but the law of limitation as provided in subsection (1) is not necessarily attracted towards subsequent impleading of parties mentioned in subsection (2).

If any relief is prayed for against any party so added the question of limitation would become relevant. Again, if any added party himself claims any relief under the said section the question of limitation may again be attracted. But if the applicant for pre‑emption under section 96, subsequently, seeks to add other co‑sharers as parties in an application without claiming any relief against any other added parties, no further question of limitation, apart from what has been provided for by subsection (1), would arise. Here the application was made in, time. Thereafter, the defect in the application was sought to be remedied.

I, therefore, hold that it cannot be held that the application was not maintainable because necessary parties were impleaded by subsequent amendment after the expiry of the period of limitation as has been laid down in subsection (1) of the said section 96,, when the application for pre‑emption itself was made in time.

It has been argued on behalf of the petitioner that the amendment was prayed for at a very late stage. It should be remembered that at the time when the application was made the law on the subject had not been fully settled. I cannot, therefore, hold that the amendment was allowed at a very late: stage.

It has next been contended that the disputed land is of vital necessity to the opposite‑party, namely, the petitioner before me, inasmuch as it is stated that there would be no access to the main, road without the disputed land. In the first instance, I do not have adequate material upon which I can decide this question and, secondly, such a question is irrelevant to a decision on the point which has been canvassed before me.

The petition, therefore, fails on all the points urged on behalf of the petitioner. The Rule is, accordingly, discharged without any order as to costs.

A. E.

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