P L D 1963 Dacca 323 (PLP)

3. The application for pre‑emption was contested at the first instance by opposite‑party No. 3 Elhaj Bhuiyan. The main contention on behalf of the opposite‑party No. 3 was that the purchased land had been separated from the main holding and that as such the petition under section 26‑F of the Bengal Tenancy Act was not maintainable. It was also contended that opposite‑party No. 4 Yunus Bhuiyan was a minor and the further defence was that at any event the opposite‑parties were entitled to get costs of improvement.

4. The learned Munsif at the first instance found that the petitioner was still a co‑sharer with respect to the holding in question and also found that in the event of the prayer for pre emption being allowed the opposite‑party No. 4 would be entitled to get Rs. 98 only as cost of improvement. But in view of his finding that opposite‑party No. 4 Yunus Bhuiyan was a minor the application for pre‑emption was dismissed.

5. On an appeal preferred by the applicant Jiban Chandra Datta the Appellate Court remanded the case for a fresh trial treating opposite‑party No. 4 Yunus Bhuiyan as a minor and allowing the applicant to take necessary steps for properly describing him and for proper representation to be made by a guardian. It was, however, observed that the question of co sharership and that of cost of improvement need not be gone into again.

6. After the remand the learned Munsif found in favour of the applicant and allowed the application for pre‑emption. The opposite parties Nos. 4 and 5 preferred an appeal against that decision of the learned Munsif, but the appeal was dismissed as stated above.

7. The learned Advocate for the petitioners contends that the order for treating opposite‑party No. 4 Yunus Bhuiyan as a minor being long after three years from the date of the kabalas the learned Additional Subordinate Judge acted with material irregularity in the exercise of jurisdiction in failing to hold that the application for pre‑emption was barred by limitation as against this opposite‑party No. 4 Yunus Bhuiyan. It has also been contended that at any event the opposite parties Nos. 4 and 5 who are now petitioners before this Court were ready with witnesses but they were not allowed to examine those witnesses and as such the learned Munsif acted with material irregularity in the exercise of his jurisdiction in disposing of the case without any evidence that might be adduced on behalf of the present petitioners.

8. The learned Advocate for the contesting opposite‑party, however, contends in reply that the mere fact that Yunus Bhuiyan was found to be a minor sometime after the expiry of the period of three years and that he had been represented through a proper guardian thereafter does not entitle him to the plea ‑of limitation as contended by the learned Advocate for the petitioners. In his submission, Yunus Bhuiyan has already been on record as one of the opposite‑parties ever since the application was made on or about 23‑2‑59 which was‑ surely within three years from the date of the kabala dated 26‑7‑56; so no question of limitation would arise simply because proper representation was made at a later stage. On merits his submission is that it has been recorded by the learned Munsif that no evidence had been adduced on either side in the order dated 15‑4‑

61. That shows that the parties were not willing to give any evidence and as such there could be no occasion for the learned Munsif to exercise his jurisdiction in that behalf.

9. On the question of limitation it appears to be pretty clear that Yunus Bhuiyan though not properly described as a minor through a guardian was already on record wrongly des cribed as a major. It is true that an order or a decree passed finally against the minor without proper representation should be treated as a nullity but that becomes relevant only when a case is finally disposed of and the decree or order is sought to be enforced against the party concerned. But before a proceeding is finally disposed of the plaintiff or the applicant concerned seems to have a right to point out to the Court that a particular party who appears to have been made a defendant or opposite‑party is a minor and that he should be described as such; otherwise the provision of Order XXXII, rule 3, sub‑rule (1) of the Code of Civil Procedure appears to be meaning less. It is only when it comes to the notice of the Court that a particular defendant though described as a major is in fact a minor that an order for appointment of guardian becomes necessary and in that case it is incumbent upon the Court to do the needful as indicated in Order XXXII, rule 3, sub‑rule (1) of the Code of Civil Procedure. It does not appear from any of the provisions of Order XXXII of the Code of Civil Pro cedure that the Legislature intended that defendant or the opposite‑party, as the case may be, until an appropriate order A in terms of sub‑rule (1), rule 3 of Order XXXII of the Code of Civil Procedure is made, should be treated as being not before the Court for the purpose of limitation. As such it is difficult to hold that the limitation should not be counted from the date of the plaint or of the application in regard to the minor concerned simply because there was want ‑of proper description or representation of a minor party. This view seems to have been consistently followed in various decisions as in the cases of Khem Karan and another v. Har Dayal (I L R 4 All. 37); Rup Chand v. Dosodha and another (I L R 30 All. 55); Prasanua Ram Ghosh and another v. Anfar Ali and others (38 C W N 900) and Muhammad Abdul Mannan Mandal (minor) and another v. Md. Ghani Sarkar and another (6 P L R Dacca 90). I do not think that any contrary view can be taken in the circumstances of the case. In my view, the contention that the application for pre‑emption as made on or about 23‑2‑59 should be regarded as barred by limitation, in view of the fact that Yunus Bhuiyan was described as a minor and represented through a Court guardian at a later stage, must fail.

10. On merits it appears that no evidence was actually adduced by either side. It further appears on a reference to the judgments of the Courts below that the Pleader who appears on behalf of the minor Yunus Bhuiyan and Rafizuddin Bhuiyan tried to concentrate upon, rather confined himself, to the only question of limitation. It also appears that before the lower Appellate Court although it was contended that the previous order of the Appellate Court did not bind the minor opposite party No. 4 yet it was submitted that in view of such an order of the, previous Appellate Court evidence could not be adduced. It must be assumed for all practical purposes that a party knows his legal rights. If it could be contended on behalf of the minor opposite party No. 4 Yunus Bhuiyan that the order of the previous Appellate Court was not binding upon him there can be no room for thinking that he could be hampered by the consideration of the fact that the previous order of the Appellate Court indicated that the question of cosharership should not be re‑opened. It was legal right to adduce evidence as the previous order was not binding on him for want of proper representation as found by the Courts below. In view of the submission before the lower Appellate Court that he might have been hampered it is quite proper that the learned Munsif recorded order that neither party adduced evidence. Apart from that the mere fact that a hajira of two witnesses had been filed would not be enough for the purpose of showing that the present petitioners were ready with enough materials to prove that the purchased lands had been completely separated or that the holding had been split up in terms of section 88 of the Bengal Tenancy Act. Oral evidence can surely go to some extent but cannot conclusively d prove compliance with the requirements of section 88 of the Bengal Tenancy Act. In my view, therefore, the con tention of the present petitioners that they were ready with witnesses and that they have been prejudiced for not getting a chance to examine such witnesses as advanced at this stage is more or less an after‑thought and I do not find any material irre gularity in the exercise of jurisdiction of the learned Munsif who by his order dated 15‑4‑61 recorded neither party adduced any evidence. This contention of the learned Advocate for the petitioners must also, therefore, fail. The result, therefore, is that this Rule is discharged but in view of the circumstances I make no order as to costs. S. B./A. H. Rule discharged.