Law: Civil Procedure Code (V of 1908)

Section: O. XXXII, r. 3

  Civil Procedure Code (V of 1908), O. XXXII, r. 3 Party's description corrected as minor by order of Court-Correction does not affect question of limitation in regard to such minor Bengal Tenancy Act (VIII of 1885), S. 26-F [Prasanua Ram Ghosh v. Anfar Ali 38 C W N 900; Muhammad Abdul Mannan (Minor) v. Md. Ghani Sarkar 6 P L R (Dacca) 90 and Rup Chand v. Dosodha I L R 30 All. 55 rel].   Bengal Tenancy Act (VIII of 1885), S. 88-Oral evidence cannot conclusively prove compliance with S. 88. JUDGMENT   This rule is directed against an order of dismissal passed in Miscellaneous Appeal No. 150 of 1961 affirming the order of the learned Munsif allowing an application under section 26-F of the Bengal Tenancy Act.   The litigation has a chequered career. The opposite-party Jiban Chandra Datta wanted to pre-empt properties covered by two kabalas Exhs. 2 and 2 (a) both dated 26-7-56 on the usual ground that he was a co-sharer with respect to the holding concerned and that he got no notice under section 26-C of the Bengal Tenancy Act. The application was filed on or about 23-2-59 against the vendees who are six in number amongst whom opposite-parties Nos. 2 to 5 were brothers and opposite-parties Nos. 4 and 5 were minors. In the application under section 26-F of the Bengal Tenancy Act opposite-party No. 5 Rafizuddin Bhuiyan was described as a minor represented by his elder brother opposite-party No. 2 Hafizuddin Bhuiyan but opposite-party No. 4 Yunus Bhuiyan, though a minor, was described as a major.   The application for pre-emption was contested at the first instance by opposite-partyNo. 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.   The learned Munsif at the first instance found that the petitioner was still a co-sharerwith respect to the holding in question and…