Appellate Division Cases
(Civil)
PARTIES
Raushan Akhter @ Moharaji Bibi and others ……………………….Appellants
-Vs-
Khandakar Mosharraf Hossian & Ors …………………………….Respondents
JUSTICE
Mr. Mohamad Fazlul Karim. J
Mr. Md. Tafazzul Islam. J
JUDGEMENT DATE: January, 20th 2004.
The State Acquisition and Tenancy Act of 1950 (Act XXVIII of 1951) Section 89(4) of the Act Legal effect of service or non-service of notice under Section 89(4) of the Act upon limitation in filing pre-emption case under section 96(1) of the Act,
Thus a notice under section 89 of the State Acquisition and Tenancy Act has to be issued in the prescribed form intimating the transfer of a portion or share of such holding to the co sharer tenets to which the provisions of section 96 apply, giving particulars of the transfer in the prescribed form and under sub-section (5) there of the court, Revenue authority or the Registrar as the case may be shall serve the notice as aforesaid on the co sharer tenants. Section 96 (1) of the State Acquisition and Tenancy Act provides that if a portion 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, with in four months of the date of the knowl- edge of the transfer, apply to the Court for the said portion or share to be transferred to himself or themselves ………(7)
a co sharer by purchase was entitled to pre-empt the transferred land by either filing an application under section 96 (1) of the State Acquisition and Tenancy Act within 4 months of the service of notice given under section 89 of the State Acquisition and Tenancy Act or if no notice has been served as aforesaid, with in 4 months of the date of knowledge of the transfer…. (8)
Civil Appeal Nos. 190 of 2000 (From the judgment and order dated 11 June 1998 passed by the High Court Division in Civil Revision No 2588 of 1993).
Mahbubey Alam, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record. For the Appellants Ahsanullah Patwary, Advocate-on-record. For the Respondents No. 1 Not represented Respondent Nos. 2-12
JUDGMENT
1. Mohammad Fazlul Karim, J :- This appeal by leave at the instance of the preemptee is directed against the judgment andorder of the High Court Division passed on 11.6.1998 in Civil Revision No. 2588 of 1993 making the rule absolute setting aside those dated 20.6.1993 of the Court of appeal below passed in Miscellaneous Appeal No. 12 of 1989 affirming those dated 28.2.1989 passed by the Court of Subordinate Judge, Narsingdi in Preemption Miscellaneous Case No. 28 of 1985.
2. The facts leading to the present appeal briefly are that the respondent No. 1 as pre-emptor filed the above pre-emption case No. 28 of 1985 for preempting the land escribed in the schedule to the plaint on the allegations, inter alia, that one Abdul Gafur was the owner of the land of the case jute who sold some land to one Akram Uddin on 26.2.1949 who in turn sold 21 decimals of land to the appellants and his two brothers on 4.5.1949 and thus the appellants became a co sharer by purchase in the case jute. The said Akramuddin sold some other land of the case jote to one Habib Bhuiyan predecessor of Mizanur Rahman, Sukri Bibi and Akmulennessa and the heirs of the Akramuddin sold 21 decimals of land to Khadakar and the heirs of the Akramuddin sold 21 decimals of land to Khandakar Anwar Hossain, predecessor of the appellants by a deed of sale dated 12.3.1975 . Further case of the respondent No.l is that after complelion of the registration of the said deed under section 60 of the Registration Act a notice, under section 89 of the Date Acquisition and Tenancy Act was served on him on 28,1.1981 and that Khandakar Anwar Hossain being a stranger-purchaser to the case jute. Respondent No. 1 as a co sharer by purchase is entitled to pre-empt the said land.
3. The appellants contested the case by filing a joint written objection denying the material allegations. Their case is that the pre-emptor is not a co-sharer of the, case jute and the case is bad for defect of parties and that the case is barred by limitation. Their further case is that the suit land is adjacent to the house of preemptor-resp”ondent No. 1 and from the very date of purchase the pre-emptee purchaser entered into possession of the case land and since then they are possessing the same by cultivating the case land openly and to the knowledge of others including the pre-emptor. Their further case is that pre-emptor knows about the transfer from the very beginning and he did not exercise his right of pre-emption within the prescribed period of limitation and as such preemption case is liable to be dismissed. The learned Subordinate Court dismissed the case on ground of limitation. The Court of appeal below affirmed the same. The High Court Division made the rule absolute allowing the Miscellaneous Case.
4. Leave was granted in the appeal to consider that : “the learned judge of the High Court Division Committed serious error in disturbing the concurrent finding of facts relating to limitation of filing preemption case since both the courts below with specific bservations held that the pre-emption case was barred by limitation and the sale was within the knowledge of the pre-emptor and hence in exercise of revisional jurisdiction illegally interfered with the concurrent finding of the Courts below by the High Court Division . He further submits that both the Courts below gave specific observation and finding that the notice under section 89 (4) of the State Acquisition and Tenancy Act shown to have served is a subsequent creation for the purpose of filing pre-emption case a«d there remains variations in the document filed before the Court and both the Courts below held the same as fraudulent document but the said finding of facts have fjeen interfered with by the High Court Division in revision-al Jurisdiction which is not sustainable in law.” Mr. Mahbubey Alam, the learned counsel appearing for appellants submitted that the learned judge of the High Court Division committed serious error in’ disturbing the concurrent finding of fact relating to limitation of filing pre-emption case since both the Courts below with specific observations held that the preemption case was barred by limitation and the sale was with in the knowledge of the pre-emptor’and hence in exercise of revisional jurisdiction interfering with the concurrent finding the High Court Division committed error in the decision.’The learned Counsel further submits that the learned Judge of the High Court Division failed to consider that trial court and the court of appeal below gave specific observation finding that the notice under section 89 (4) of the’ State Acquisition and Tenancy Act shown to have served is a subsequent creation for the purpose of filing pre-emption case and there remains variation in the documents filed before the Court and both the Courts below held that same as fraudulent document but the said finding of facts have been interfered with by the High Court Division in revisional jurisdiction which js not sustainable in law.
5. It appears form the impugned judgment of the trial Court that the trial Court held the case to be, barred by limitation disbelieving the knowledge of the pre-emptor, as according to it, it found discrepancy as to date bearing in the notice under section 89 (4) of the State Acquisition and Tenancy Act with the date of service thereon. The Court of appeal below, however, concurred with the finding as to limitation but illegally relied upon the statement of the learned Advocate in Court at the time of argument together with the fact that the respondent No. 1 had filed an application under order 39 rule 1 and 2 of the code of the Civil Procedure against the appellant not to change the nature and character of the suit land and not to dispose of the suit pending disposal of the case. Thus erroneously arrived at a finding that the respondent No. 1 had knowledge of the transfer together with the notice under section 89 (4) of the State Acquisition and Tenancy Act. The High Court Division, however, allowed the pre-emption case holding that the notice under section 89 (4) of the State Acquisition and Tenancy Act was issued on 21.1.1981 and the respondent No.l filed the Miscellaneous Case on 24.3.1981 which is within the period of limitation prescribed under section 96- (1) of the State Acquisition and Tenancy Act and that though the purchase was dated 2.5.1975 but the same was entered into volume under section 60 of the Registration Act on 24.3^1981 and as such the case is not barred by limitation under section 89 (4) of the State Acquisition and Tenancy Act. Section 89 (4) of the Act reads as under: 89 (4) . If the transfer of a portion or share of such a holding be one to which the provisions of section 96 apply, there shall be filed notices giving particulars of the transfer in the prescribed form together with process fees prescribed for the service there of on all the co sharer tenants of the said holding who are not parties to the transfer and for affixing a copy there of in the office of the Registering Officer or the Court house or the Office of the Revenue Authority., as the case may be.”
6. Thus every transfer of a holding or a portion or share of it belonging to a Raiyat shall be made by a registered document under the Registration Act and the deed of transfer must be accompanied by a notice giving particulars of the transfer together with deposit of the process fee for dispatch of the notice to the Revenue Officer and in case of transfer of a portion of a share or share of a holding having co sharers, there must be filed in the Registration office notices bearing particulars of the transfer together with the process fee for service of such notices on all co-sharers who are not parties to the transfer and also for affixing copy of the notice to the Registration office and the Registering officer shall not accept the document for registration unless the above condition are fulfilled.
7. Thus a notice under, section 89 of the State Acquisition and Tenancy Act has to be issued in the prescribed form intimating the transfer of a portion or share of such holding to the co sharer tenets to which the provisions of section 96 apply, giving particulars of the transfer in the prescribed form and under sub-section (5) there of the court, Revenue authority or the Registrar as the case may be shall serve the notice as aforesaid on the co sharer tenants. Section* 96 (1) of the State Acquisition and Tenancy Act provides that if a portion of a holding of a raiyat is transferred, one or more cosharer 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, with in four months of the date of the knowledge of the transfer, apply to the Court for the said portion or share to be transferred t”o himself or themselves.
8. In the instant case, admittedly, the respondent No. 1 being “a co sharer by purchase was entitled to pre-empt the transferred land by either filing an application under section 96 (1) of the State Acquisition and Tenancy Act within 4 months of the service of notice given under section 89 of the State Acquisition and Tenancy Act or if no notice has been served as aforesaid, with in 4 months of the date of knowledge of the transfer.”
9. In view of the above, the respondent having filed the case within 4 month from the date of issuance of the notice dated 21.1.1981 was entitled to the pre-empt case land inasmuch as the jssuance of the notice dated 21.1.1981 having the presumption that the official has been done regularly in the absence of any evidence to the contrary carry a presumption of regularity to hold that the notice was issued on 21.1.1981. On scrutiny there being no substance in the submissions of the learned Counsel for the appellants for the ground on which the leave was granted this appeal is accordingly dismissed without any order as to costs.
Ed
Source: I ADC (2004),100