P L D 1967 Dacca 588 (PLP)

MURSHED, C. J.‑These three applications for revision were analogously heard by us. They arose out of three applications made by the same person claiming pre‑emption in respect of the sale of the properties in question. The applications relate to different properties which were sold by different transactions at about the same time. The applications for pre‑emption were heard by a learned Munsif who allowed them. Against the aforesaid order passed by the learned Munsif three separate appeals were filed. Two such appeals were assigned to an Additional District Judge and the third to another Additional District Judge. We purpose to dispose of the three revisional applications by this single judgment in which we shall separately deal with Civil Revision Cases Nos. 298 and 299 of 1965 and Civil Revision Case No. 668 of 1965. Civil Revision Cases Nos. 298 and 299 of 1965 arise out of the appellate judgment delivered by Mr. A. A. Lutful Kabir, Additional District Judge, 3rd Court, Dacca in what have been described as Miscellaneous Appeals Nos. 375 and 377 of 1964. The learned Additional District Judge allowed the appeals and dismissed the applications for pre‑emption only on the ground that the applications under section 26‑F of the Bengal Tenancy Act were made at a time when the said section was not applicable to the District of Dacca. This is the only ground on which he has dismissed the applications. We would like to observe that the appeals themselves were perfunctorily disposed of by the learned Additional District Judge on the aforesaid ground, and that, even if there had been nothing else in these cases, we would have set aside the judgment and orders passed by him. We would further add that if the relief claimed by the petitioner was allowable under some other law of the country, namely, section 96 of the East Bengal State Acquisition and Tenancy Act, 1950, then the Court of appeal below was bound to apply the same notwithstanding the misdescription of the cause title in the application. We are of opinion that the learned Additional District Judge should have applied his mind to the question, whether the applications were maintainable under section 96 of the East Bengal State Acquisition and Tenancy Act, 1950. We have ourselves treated the applications as though the same were made under the aforesaid section

96. The crucial point, however, remains that the petitioner himself in his Examination- in‑Chief has stated that he came to be aware of the impugned transfer of the properties within a month and a half from the date o f registration of the kabalas and that because of disputes having arisen between the parties the matter was referred to their father. There can be no manner of doubt that the petitioners were aware of such transfer as stated above and had waited for almost a period of two years to obta in certified copies of the kabalas in order to be armed with the particulars thereof. We do not think that the law allows him to indulgence of such an inordinate luxury. The relevant provisions of section 96 of the East Bengal State Acquisition and Tenancy Act, 1950, may be, quoted thus: "96 (1) If a portion or share of a holding of a raiyat is transferred, one or more co‑sharer tenants of the holding may, within four months of the service of the notice given under section 89, or if no notice has been served under section 89, within four months of the date of the knowledge of the transfer, apply to the Court for the said portion or share to be transferred to himself or themselves . . . . . ." (The underlining* has been done by us) It is thus clear that on petitioner's own admission he has failed to apply within four months from the date of his knowledge of the transfer. The section does not speak of the particulars and details of the transfer but of the transfer itself. It seems obvious that a period of four months has been allowed in order to give the petitioner an opportunity to obtain details of the transfer. Therefore, there cannot be any manner of doubt whatsoever that the application, even if treated to be under section 96 of the East Bengal State Acquisition and Tenancy Act, were barred by the law of limitation. The result, therefore, is that these two Rules which were obtained in Civil Revision Cases Nos. 298 and 299 of 1965, are discharged without any order as to costs. We now turn to Civil Revision Case No. 668 of 1965. In this case the learned Additional District Judge in disposing of the appeal has rightly stated that although the petition was made under section 26‑F of the Bengal Tenancy Act, it could be treated as one made under section 96 of the East Bengal State Acquisition and Tenancy Act. Having done so the learned Additional District Judge has observed that the petitioner made the application within four months after obtaining certified copy of the kabala and has, therefore, held that the application was made before the expiry of the period of limitation in respect of such petition. We have set out above the admission of the applicant himself in delivering the judgment in respect of Civil Revision Cases Nos. 298 and 299 of 1965 and we do not wish to repeat the same. There is no manner of doubt whatsoever that the application was barred even under section 96 of the East Bengal State Acquisition and Tenancy Act. We, therefore, make this Rule absolute, set aside the judgment and order of the learned Additional District Judge and dismiss the application for pre‑emption as. being barred by the law of limitation, without any order as to costs. Before parting with this case we would like to observe that we have heard an ingenious argument advanced by Mr. Kali Mohan Saha, namely, that the failure of the opposite‑party to serve notice under section 89 of the East Bengal State Acquisi tion and Tenancy Act on the co‑sharers may lead to an inference of fraud. Non‑service of notice may be due to various causes and they do not necessarily lead to an inference of fraud. He has asked us to infer fraud on the part of the petitioner before us in Civil Revision Case No. 668 of 1965 from that fact alone. The consequence of non‑service of notice is laid down in section 96 and we have applied the same. The matter ends there. The question before us is merely this, whether the applicant for pre‑emption was within the period of limitation prescribed by law. ABDULLA, J.‑I agree. K. B. A. Rule discharged.