P L D 1960 Dacca 626 (PLP)

Now, as regards the question of the maintainability of the said application under section 96 of the Act, the Courts below held that the application was not maintainable inasmuch as the transfer took effect from the date of the sale on the 18th of February 1956, where as para. 5 of Chapter V of the E. B. S. A. Act came into force in that particular area where the disputed land is situated on 14‑4‑1956, giving the right of pre‑emption. This finding of the Courts below has been assailed by the learned Advocate for the petitioner on the ground that under section 78 of the East Bengal Non‑Agricultural Tenancy Act, 1949, the purchase of any non‑agricultural land takes effect from the date of confirmation of the sale notwithstanding anything contained in section 65 of the Code of Civil Procedure. On the other hand, it is contended on behalf of the certificate purchaser opposite party, which contention must be upheld, that section 78 of the East Bengal Non‑Agricultural Tenancy Act is only applicable when there is a Court sale and not a certificate sale as section 78 clearly provides: " Notwithstanding anything contained in the Code of Civil Procedure, 1908, whenever the interest of any non‑agricultural tenant in any non‑agricultural land is sold in execution of a decree for arrears of rent and the sale' is confirmed, the purchase shall take effect from the date of confirmation of the sale." The aforesaid provision is silent about the certificate sale. Now the question is : from which date the cause of action arises under section 96 of the East Bengal State Acquisition and Tenancy Act. In support of his contention the learned Advocate for the opposite party‑certificate purchaser relies on the following provision of subsection (2) of section 20 of the Public Demands Recovery Act:

" Where immovable property is sold in execution of a certificate, and such sale has become absolute, the purchaser's right, title and interest shall be deemed to have vested in him from the time when the property is sold, anti not from the time when the sale becomes absolute." There is also similar provision in section 65 of the Code of Civil Procedure, which runs thus: " Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time‑ when the sale becomes absolute." Relying on the above provisions of the Public Demands Recovery Act, it is contended on behalf of the opposite party that the cause of action arises or in other words the transfer takes effect not from the date of the confirmation of the sale but from the date on which the sale takes place. To meet this contention, reliance has been placed on subsection (1) of section 25 of the Public Demands Recovery Act, which provides: " Where no application is made under section 22, section 23 or section 24, or where such an application is made and disallowed, the Certificate‑Officer shall make an order confirming the sale, and thereupon the sale shall become absolute." and it has been argued that the absolute right, even according to the provisions of the Public Demands Recovery Act, does not vest in the purchaser until the sale is confirmed and, as such, any person aggrieved by the sale cannot file an application under section 96 of the East Bengal State Acquisition and Tenancy Act before the confirmation of the sale ; that any right acquired by the sale on the date of sale, remains in abeyance till the sale is con firmed; and that section 96 provides for pre‑emption of a complete sale, namely, the sale or transfer by which 0‑16‑0 annas title vests in the auction‑purchaser,. In my opinion, though in view of the provision of subsection (2) of section 20 of the Public Demands Recovery Act the right, title and interest vest in the auction‑purchaser after the confirmation of sale from the time when the property is sold and not from the time when the sale becomes absolute, the sale is not complete before it is confirmed and, as such, the cause of action under section 96 of the State Acquisition and Tenancy Act will arise from the date of confirma tion of the sale and not from the date of the sale. It has also been vehemently argued on behalf of the opposite party that section 96 of the State Acquisition and Tenancy Act, has no application to the present case inasmuch as it provides for pre‑emption of a transfer of a portion or a share of a holding of a raiyat and not of a non‑agricultural tenancy. For this purpose my attention has been drawn to the provision of sub section (2) of section 82 of the East Bengal State Acquisition and Tenancy Act, which runs thus: " ` raiyat ' means a person ' .who, by virtue of section 44 or otherwise, has acquired a right to hold land directly under the Provincial Government mainly for the purpose of cultivating it by himself or by members of his family or by, or with the aid of, servants or labourers or with the aid of partners or bargadars, and includes also the successors‑in‑interests of persons who have acquired such a right." . Similarly, section 96 of the said Act also provides for pre‑emption of a portion or share of a holding of a raiyat when it is transferred. Relying on these provisions, it is contended that the holding in question being governed by the East Bengal Non‑Agricultural Tenancy Act, section 96 of the State Acquisition and Tenancy Act has no application to the present case. On the other hand, it is contended by Mr. Guha for the petitioner that the record of rights goes to show that the holding in dispute is an occupancy holding and, as such, section 96 of the State Acquisition and Tenancy Act is applicable to this case. In my opinion, this matter also requires investigation as the case was not proceeded with in the Courts below in the line in which it has been placed before me. It has also been contended on behalf of the opposite party that section 96 of the State Acquisition and Tenancy Act provides for pre‑emption by a co‑sharer and also by a tenant holding land contiguous to the land transferred subject to some qualifications ; whereas section 24 of the East Bengal Non‑Agricultural Tenancy Act authorises only the landlord in certain cases and the co‑sharer of a non‑agricultural holding to apply for pre‑emption but the same does not provide for pre‑emption by a tenant holding land contiguous to the land transferred. This contention must be given effect to if the holding sold, is governed by the East Bengal Non‑Agricultural Tenancy Act ; but if it is governed by the East Bengal State Acquisition and Tenancy Act, then in that case this contention is of no substance. So, in my opinion, this matter also requires further investigation. As regards the third point that the petitioner is not a co- sharer, it appears from the pleadings of the petitioner that she has claimed the right to pre‑empt first as a co‑sharer and, secondly, as a tenant holding land contiguous to the land trans ferred. The lower Appellate Court has only discussed the question whether the petitioner is a co‑sharer or not ; but it has not taken into consideration the question whether the petitioner is a tenant holding land contiguous to the land transferred as contended by her. Of course her right to purchase as a tenant holding land contiguous to the land transferred, will accrue only when it is found that the holding in dispute is governed by the East Bengal State Acquisition and Tenancy Act but the said right will not accrue when the holding in question is governed by the East Bengal Non‑Agricultural Tenancy Act. In my opinion, this matter also requires re‑investigation. In the result, the Rule is made absolute, the judgment and order of the lower Appellate Court are set aside and the case is sent back to that Court for disposal of the appeal in accordance with law and in the light of the observations made above. In the circumstances of the case, I make no order as to costs. K.B.A Rule made absolute.