P L D 1963 Dacca 89 (PLP)

3. The, application for pre‑emption was resisted by the present petitioner on the ground that the application was barred by limitation. The petitioner further contended that the applica tion was barred by waiver and estoppel as the petitioner purchased the land at the request of Fulbarennessa, the natural guardian of the minor petitioner. It was also the case of the petitioner that after his purchase he had excavated a tank on the disputed land at a cost of about Rs. 1,200 and, therefore, he was entitled to that amount by way of compensation.

4. Both the Courts below have negatived the present petitioner's contention about waiver and estoppel on evidence. This is a finding of fact arrived at by both the Courts and, there fore, the question cannot be agitated in revision.

5. Mr. Mofizuddin Ahmed, the learned Advocate, appearing for the petitioner, has raised two points in this Rule. He has firstly contended that the application of the opposite‑party was bared by limitation in view of the fact that it was filed beyond three years from the date of the execution of the document of transfer in favour of the present petitioner. The learned Advocate for the petitioner has, in this connection, relied on the provisions of section 47 of the Registration Act and the Special Bench decision of the Calcutta High Court in the case of Asmat Sharip v. Mujaharali Sardar and others (52 C W N 64).

6. It cannot be disputed now that in a case where a co‑sharer has not been served with any notice of transfer, the period of limitation for such a co‑sharer to apply for pre‑emption is three years under the provisions of Article 181 of the Limitation Act. This is what was decided in the above‑mentioned Special Bench case and this decision has been consistently followed not only by the Calcutta High Court since then but also by this Court. The question, however, that arises is what will be the date from which limitation will run for such an application where in a case of transfer the date of registration of the document is different from the date of the execution of it.

7. Mr. Mofizuddin's argument that in the case of a registered document, the document takes effect from the date of execution and not from the date of registration, in view of the provisions of section 47 of the Registration Act cannot be disputed.

8. It is, however, to be considered whether, under the pro visions of Article 181 of the Limitation Act which article has been found to be applicable by the Special Bench of the Calcutta High Court in the reported decision above‑mentioned, the right to apply for pre‑emption accrues from the date of execution of the document or from the date of registration.

9. Section 26‑C of the Bengal Tenancy Act provides that every transfer shall be made by registered instrument, except in the cases mentioned in the said section. It, therefore, cannot be disputed that the transfer in question, was compulsorily register‑, able and that being the position it cannot be doubted that the disputed transfer was not complete until registration was affected. It follows, therefore, that the pre‑emptor's right to apply for pre‑emption could not accrue before registration took place. The title of the transferee, no doubt, after registration will date back to execution of the document; but from that it cannot be, said that a co‑sharer's right would also accrue from the date of execution. The lower appellate Court, it appears, has relied on a decision of the Calcutta High Court in the case of Gosto Behari Das v. Rajabale Devi and another (60 C W N 57). There a Division Bench of the Calcutta High Court has taken the view that the date of accrual of the right of pre‑emption is not the date of execution of the deed of sale or any earlier date but the date when the deed of sale registered and title effectively passes. The point that came up for consideration before the Division Bench was, whether the pre‑emptor, who claimed to be a co‑sharer by right of purchase became such co‑sharer from the date of the execution of the sale‑deed in his favour or from the date on which the transfer in his favour was registered. The learned Judges came to the conclusion that the latter date would be the date when his right to apply for pre‑emption would accrue. The decision, therefore, though indirectly is of assistance to the opposite‑party, is not an authority directly on the point that arises in this case. I, however, on a consideration of the language of Article 181 and the provisions of sections 26‑C and 26‑F of the Act feel that the right of a co‑sharer to apply for pre‑emption in respect of any transfer cannot and does not accrue until the $ document of transfer is registered. In that view of the matter, I am unable to accept the contention of Mr. Mofizuddin s that the application of the opposite‑party was barred by limitation.

10. The second point that has been raised in this case is that the Courts below should have awarded compensation to the extent of the amount spent by the present petitioner for excavating a tank on the disputed land.

11. It appears from the judgment of the Court below that this point was left open by the trial Court at the insurance of both the parties and in that view of the matter, it was not pressed before the lower appellate Court. A Division Bench of this Court in Civil Revision Cases Nos. 1226 and 1025 of 1960 has taken the view that in a proceeding under section 26‑F of the Bengal Tenancy Act a transferee is entitled to the amount spent by him in effecting an improvement on the purchased land if spent by him bona fide after his purchase but before pre‑emption is allowed. I am a party to this decision. This decision is binding on me. It is true that the present petitioner did not press this point at the trial; but since this point has been raised, it will not be proper to keep the matter open and thus help multiplicity of proceedings. The question whether by excavating a tank on the disputed land the present petitioner has effected improvement of the land is a question of fact and so also the question of the amount spent by him for that purpose. In that view of the matter, this case should go back to the trial Court to decide the above points. I am unable to accept the argument of Mr. T. Ali that the question should be left to be decided in a separate proceeding started at the instance of the present peti tioner. I have already given my reasons as to why the contention cannot be accepted.

12. The result, therefore, is that this Rule is made absolute. The orders of both the Courts below are set aside and the case is sent back to the trial Court for determining whether by excavat ing a tank on the disputed land the present petitioner has effected any improvement thereon bona fide, and, if so, what was the cost incurred therefore. If the first question is decided in favour of the present petitioner, the trial Court will assess the amount of compensation that the petitioner will be entitled to and award the same in favour of the petitioner as a condition precedent to the grant of the right of pre‑emption to the opposite‑party. In view of the facts of this case, each party will bear its own costs in this Court. S. B./A. H. Rule made absolute.