Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: DAGURAM MANDAL VS Respondent: OMELA SUNDARI BEWA
P L D 1961 Dacca 170
P L D 1961 Dacca 170
Before Hamoodur Rahman, J
DAGURAM MANDAL‑Petitioner
versus
OMELA SUNDARI BEWA‑Opposite‑Party
Civil Revision Case No. 826 of 1959, decided on 10th June 1960.
Bengal Tenancy Act (VIII of 1885)----
---- S. 26‑F‑Inaccurate description of property will not invalidate application‑Amendment for removing misdescription can be allowed even after period of limitation for making of application.
The applicant for pre‑emption was a co‑sharer in the pro perties sought to be transferred by a Kabala and all that happened was that by some error the property was wrongly described. The trial Court allowed amendment, in the end of justice, after the period of limitation, for the making of such application for pre emption had expired. In appeal it was contended by the purchaser that section 26‑F of the Bengal Tenancy Act, 1885 gives a sufficient indication as to the form of the application and it is one of the essentials of the application that the holding or the portion or share thereof sought to be pre‑empted must be specifi cally and accurately described in the application for pre emption without which the application for pre‑emption must be held to be non‑maintainable. Further, since the amendment was allowed after the expiry of 3 years from the date of the execution of Kabala, the claim for pre‑emption had become time‑barred and, therefore, the application for pre‑emption should fail :
Held, that there is nothing in section 26‑F of the Bengal Tenancy Act, 1885 which would indicate that any particular form of the application has been prescribed. All that subsec tion (1) of section 26‑F of the Act indicates is who is the person entitled to ask for pre‑emption and of what he can obtain pre‑emption. Normally, a well‑drafted application will set out the particulars and the correct description of the properties sought to be pre‑empted but the omission to give such a full or correct description or schedule does not necessarily make the application for pre‑emption itself non- maintainable. What the applicant for pre‑emption seeks to pre‑empt in such a case is the sale evidenced by the document of sale itself. Hence if a sufficiently clear reference is made to the property covered by the document as the property, more elaborately described in the deed of sale itself, there should be no difficulty in identifying the property of which the pre‑emption is sought and if the property can be so identified without causing any prejudice to the other parties there is no objection to an amendment being allowed for removing the misdescription of the property. If the application for pre‑emption itself had been made within time, amendment of it could be allowed even after the period of limitation for making of such an application had expired, for the amendment does not disturb any right which accrued to the other side by lapse of time.
Charan Das and others v. Amir Khan and others 25 C W N 289 and Sheikh Dabiruddin v. Kristo Chandra Mukhopadhya and others 35 C W N 656 rel.
Nalinakha Sinha v. Ram Taran Pal and others 46 C L J 51 distinguished.
Md. Moazzam Hussain for Petitioner.
S. C. Bose and P. C. Nag for Opposite‑Party.
JUDGMENT
This application in revision is directed against the appellate order of the Subordinate Judge, 1st Court, Faridpur, reversing the order of the Munsif allowing an application for pre‑emption.
2. The applicant for pre‑emption in the present case sought to pre‑empt a sale entered into on the 27th of November 1954, by a registered kabala in respect of a holding of which he claimed to be a co‑sharer. He claimed that no notice under section 26‑C of the Bengal Tenancy Act of the said transaction had been given to him and hence he made the application on the 14th of November, 1957, for pre‑emption. In this application for pre‑emption the lands that were sold were described by reference to the Charcha Survey whilst in the kabala the lands concerned were described in terms of the C. S. Khatians and plots. The co‑sharers, therefore, promptly took an objection that the lands of the Charcha Survey were not identical with the lands of the C. S. Khatians purchased by them and the purchasers claimed that in the lands as described in the applica tion for pre‑emption the applicant was not a co‑sharer. There upon on 12th of August, 1958, he applied for amendment of the application. This amendment was allowed on the 18th of December 1958, whereby the applicant claimed to pre‑empt '48 acres of land out of Plots Nos. 1486 and 1487 of C. S. Khatian No. 680 of mauza Chandaulat Khan. In the original Charcha Survey the lands were described as appertaining to mauza Chandaulat Khan out of Plots Nos. 70 and 185 measuring '97 acres of land and bearing a rental of Rs. 4‑2‑0. Unfortu nately, even when making the amendment the rental of the holding was not corrected, for it was, in fact, Rs. 7‑5‑0 Hence again an objection was taken that the holding was not the holding covered by the kabala.
3. A second application for amendment was then made on the 10th of January 1959, and the Court taking the view that the mistake was a technical one, granted the amendment in the ends of justice. Thereafter, since it was admitted that the applicant for pre‑emption a was co‑sharer in the Lands which were purchased by the kabala of the 27th of November 1954, the pre‑emption was allowed.
4. As against this the purchaser filed an appeal and on appeal the Court of Appeal below took the view that since the amendment was allowed after the expiry of 3 years from the date of the execution of the kabala the claim for pre‑emption had become barred by limitation and, therefore. the application for pre‑emption failed.
5. It is against this order that the applicant has come up in revision to this Court and it is urged on his behalf that since the defect was merely in the description of die property‑, the trial Court had rightly allowed the amendment in the ends of justice and the Appellate Court was wrong in taking the view that the amendment could not have been allowed after the period of limitation, for the making of such an application had expired.
6. In support of this contention he has placed reliance on a decision of the Judicial Committee in the case of Charan Das and others v. Amir Khan and others (25CWN289) where their Lordships took the view that where through clumsy blundering of the plaintiff a suit had been wrongly framed an amendment of the plaint in such a suit was rightly allowed even though a fresh suit on the same cause of action would at that time have been time‑barred particularly since the cause of action of the plaintiff in that suit was all along substantially the same.
7. A similar view, it appears, was taken in the case of Sheikh Dabiruddin v. Kristo Chandra Mukhopadhya and others (35CWN656) where the Calcutta High Court held that if the application for pre‑emption can be understood to concern the same property as the subject‑matter of the notice under section 26‑C, slight inaccuracies in the description will not invalidate the application. In this case the Dag No. and the mauza had been wrongly put in the application. Nevertheless it was held that the discrepancies were slight and they should not be allowed to defeat the applica tion for pre‑emption.
8. As against this the learned Advocate appearing to oppose this Rule has argued that whatever might be the general rule as regards the allowing of amendments, so far as a special statute is concerned, its terms must be strictly observed and unless a person claiming a special right under a special statute comes within the four corners of the statute he should not be given that right. In support of this contention he has relied upon a decision of the Calcutta High Court in the case of Nalinakha Sinha v. Ram Taran Pal and others (46CLJ51) where the amendment was held to have been wrongly allowed because it took away a valuable right which the appellant had acquired by reason of lapse of time. It was a case for setting aside a sale held under Regulation VIII of 1819 and the reason given in the case was as follows :‑
"The sale is in this case held under the provisions of the statute and the statute provides how a suit can be brought for setting aside a sale held under it. In my judgment a sale held under the Regulation can only be set aside by a suit as provided under section 14 of Regulation VIII of 1819 and it cannot be challenged by proceedings of a different character."
It appears that in the case before the Calcutta High Court the suit as framed was not for setting aside the sale under the Putni Regulations and in those circumstances it was held that the amendment designed for converting the suit into one of the latter kind should not be allowed after the period of limitation for the filing of such a suit had expired.
9. In the present case, however, the application is an application for pre‑emption. There is nothing in section 26‑F of the Bengal Tenancy Act which would indicate that any particular' form of the application has been prescribed.
10. The learned Advocate, however, argues that since subsection (1) of section 26‑F of the Bengal Tenancy Act says "one or more co‑sharer tenants of the holding, a portion or share of which is transferred may * * * * * apply to the Court for the said portion or share to be transferred to himself or themselves" it gives a sufficient indication as to form of the application and it is one of the essentials of the application that the holding or the portion or share thereof sought to be pre‑empted must be specifically and accurately described in the application for pre‑emption without which the application for the pre‑emption must be held to be non‑maintainable. I regret, I am unable to accept this contention. All that subsection (1) of section 26‑F of the Bengal Tenancy Act indicates is as to who is the person entitled to ask for pre‑emption and of what he can obtain pre‑emption. It does not prescribe any form of the application.
11. Normally, of course, a well drafted application will set out the particulars and The correct description of the properties sought to be pre‑empted but I cannot agree that the omission to give such a full or correct description or Schedule must neces sarily make the application for pre‑emption itself non‑maintainable. What the applicant for pre‑emption seeks to pre‑empt in such a case is the sale evidenced by the document of sale itself. Hence if a sufficiently clear reference is made to the property covered by the document as the property, more elabo rately described in the deed of sale itself, there should be no difficulty in identifying the property of which the pre‑emption is sought and if the property can be so identified without causing any prejudice to the other parties, I for myself see no objection to an amendment for removing the misdescription of the property sought to be pre‑empted being allowed.
12. In the present case the applicant for pre‑emption was a co‑sharer in the properties sought to be transferred by the kabala of the 14th November, 1957, and all that happened was that by some unfortunate error the property was described with reference to the Charcha Survey and not with reference to the C. S. Khatians. The trial Court, in my view, rightly allowed the amendment and decided the real questions in dispute between the parties. The fact that the amendment was allowed after the time for making the amendment had expired had not, in any way taken away any valuable right from the other side. The application for pre‑emption had itself been made with time and, therefore, there was no question of the application being time‑barred. The amendment thus did not disturb any right which had accrued to the other side by lapse of time. I am unable, therefore, to uphold the decision of the Court of appeal below that the amendment was wrongly allowed after a valuable right had accrued by lapse of time.
13. This Rule is, accordingly made absolute, the judgment and order of the Court of appeal below is set aside and that of the Court of first instance restored but in the facts and circumstances of this case, there will be no order as to costs.
K. B. A.
Rule made absolute.