P L D 1961 Dacca 379 (PLP)

This revisional application is directed against the order of Mr. M. Ershad Ali, Additional District Judge, Bakerganj, confirming the order of the Munsif, 6th Court, Barisal, allowing an application filed by the opposite‑party for pre‑emption under section j6‑i' of the Bengal Tenancy Act. The application for pre‑emption was originally filed under section 96 of the East Bengal State Acquisition and Tenancy Act but by amendment the said section was substituted by section 26‑F of the Bengal Tenancy Act: The transfer in question took place on 6‑2‑56, but the application for pre‑emption was filed on 20‑3‑5,8, on the allegation that the petitioner, though a co‑sharer was not served with notice and came to know of the transfer on 13‑3‑

58. The case of the present petitioner however, was that the opposite‑party knew of the sale at least from Jaistha 1363 B. S. corresponding to May 1956, and therefore the application for pre‑emption was barred by limitation under the provisions of section 96 of the East Bengal State Acquisition and Tenancy Act. Both the Courts below have held that, if the application for pre‑emption is treated as one under section 96 of the East Bengal State Acquisition and Tenancy Act, it would be barred by limita tion, as the application was filed by the opposite‑party long after four months of his knowledge of the sale. They have, however, taken the view that, as part V of the East Bengal State Acquisi tion and Tenancy Act which contains section 96 came into operation on 14‑4‑56, after the date of the sale in question the application is to be governed by the provisions of section 26‑F of the Bengal Tenancy Act, and not section 96 of the East Bengal State Acquisition and Tenancy Act. Mr. Aminul Islam Chowdhury, who appears for the vendee contends that section 96 of the East Bengal State Acquisition and Tenancy Act being a procedural law, the provisions of that section should apply to the present application, which was filed after the said section came into operation. The learned Additional District Judge has relied on section 8 of the Bengal General Clauses Act presumably clause (c). of the said section to hold that the applica tion for pre‑emption was governable by the provisions of section 26‑F of the Bengal Tenancy Act, though the said provisions stood repealed on and from 14‑4‑

56. It may be noted that section 26‑F of the Bengal Tenancy Act does not make any pro vision regarding the period of limitation within which a co‑sharer not served with notice of any transfer could file an application for pre‑emption. This point was referred to, a Special Bench of the Calcutta High Court for decision in the case of Asmatali Sharip v. Mujaharali Sardar and others (52 C W N 64). It was held that the period of limitation for such co‑sharers is three years from the date of sale. This decision has been followed by this High Court. The question that arises, however; is: Whether, to an application by a non‑notified co‑sharer for pre‑emption in respect of a transfer, which took place, before section 96 of the East Bengal State Acquisition and Tenancy Act came into force but filed after the said date, the provisions of the said section will apply, or it will be governed by section 26‑F read with the general law of limitation. The right of pre‑emption of co‑sharers has been re‑enacted in section 96 of the East Bengal State Acquisition and Tenancy Act with practically no change excepting in respect of the period within which a non‑notified co‑sharer is to apply for pre‑emption. I am not unmindful of the provisions of sub section (5) of the section by which preference has been given to a co‑sharer by inheritance over a co‑sharer by purchase. But that, in my view, does not affect the present case. The period prescribed is four months from the date of his knowledge of the transfer. In the above background; we are to see if the change in law is with regard to only procedural matter and affects any existing right. I have already indicated that the right of a co‑sharer is not in any way affected by the change of law ; but while previously a co‑sharer not served with a notice of transfer could in view of the provisions of the general law of limitation apply within three years from the date of sale, he has now to apply within four months of his knowledge of the sale. This, in my view, is purely a procedural matter and therefore applies to applications, filed after 15‑4‑

56. Section 8 of the Bengal General Clauses Act, on, which the learned Additional District Judge has relied, can have no application not only because of the above reason but also on account o the fact that the present case is not a case of simple repeal but is a case of repeal followed by the re‑enactment of the same provision and as such it did not affect any right at all. The decision in the, case of Jatindranath De v. Jetu Mahuto and others (50 C W N 502 (F B)), on Which the learned counsel for the opposite party has relied, can have no application to the facts of the present case. In that case, the existing right of the landlord to pre‑empt was taken away by the amendment in question and the same right was conferred on co‑sharer tenants. It was, in those circumstances, that it was held that, if the landlord had acquired a right to apply for pre‑emption before the commencement of the amendment, he could enforce the right, even after the commencement of the Amending Act and can avail of the old procedure. The result, therefore, is that this Rule is made absolute the orders of both the Courts below are set aside, and the application for pre‑emption is dismissed. In view of the facts of this case. I however direct that each party will bear its own costs throughout. K. B. A. Rule made absolute.