Appellate Division Cases
(Civil)
PARTIES
Afia Begum and others ……………………………………Appellants
Vs
Abdul Baset Mia and others……………………………… Respondents
JUDGES
Md. Ruhul Amin J
Md. Tafazzul Islam J
Date of Judgment
14lh March 2006
The State Acquisition and Tenancy Act, 1950 (Sat) (East Bengla XXVIII of 1951)) Section 96.
Pre-emptor’s Appeal as a Co-sharer.
The pre-emptees are the co-sharers of the holding by inheritance and they already being co sharers of the holding made the purchase in question in 1991 and the preemptees having had made the purchase at a time when they were already coshaers by inheritance of the holding land of which sought to be pre-empted (6)
There is also one line of decisions that a transfer followed by a deed of reconveyance would not defeat the right of pre-emption and that the would take the pre-emption with the encumbrance of reconveyance. The transaction i.e. reconveyance pursuant to an agreement for re-conveyance said to have been executed at the time of sale would be a clog on pre-emption provided the re-conveyance is not sham and colourable transaction or in other words is not a transaction of the kind sole object w hereof is to defeat the right of pre-emption (12)
ADVOCATES
Chy Md. Zajangir, Advocate-on-Rccord For the Appellant.Md. Nawab Ali, Advocate-onrecord For the Respondent
JUDGMENT
1. Md. Ruhul Amin J :-This is pre-emptor’s appeal by leave against the judgment dated May 26, 1997 of”a Single Bench of the High court Division in Civil Revision No. 343 of 1995 discharging the Rule obtained against the judgment and order dated October 22, 1994 of the 2n d Court of Subordinate Judge (now Joint District Judge) Narshingdi in Miscellaneous Appeal ( pre-emption) No. 16 of 1994 allowing the same upon setting aside the judgment and order dated May 14, 1994 of the court of Senior Assistant Judge, Narsingdi in Miscellaneous Case (pre-emption) No. 3 of 1992 allowing the same.
2. The Miscellaneous case was filed under section 96 of the State Acquisition and Tenancy Act, 1950 seeking pre-emption 57 decimals land as co-sharer of the holding purchase and contiguous land owner of the land sought to be pre-empted.
3. The case of the pre-emptor, inter alia, was that the case land belonged to Durga charan saha and on his death the same devolved upon his son Jogendra Chandra Saha who transferred the case land to Ramizuddin and on his death opposite party (in the Miscellaneous case) Nos. 3-10 inherited the property, that Moti Mia and his brother Lokman purchased .26 acre of land of plot No. 2155 of khatian No. 1151 from Jogendra chandra Saha and he also transferred .13 acre of land of the aforesaid plot to the pre-emptor on September 12, 1985 and thus be became co-sharer of the holding in question i. c holding No. 1151, that opposite party Nos. 3-10 without serving any notice on the pre-emptor transferred the property sought to be pre-empted to the opposite party (in the Miscellaneous case) Nos. 1 and 2 on November 21, 1991, that the pre emptor is also the owner of the plot No. 2108 which is contUuous to the case plot No. 2109.
4. The Miscellaneous case was opposed by the opposite party Nos. I and 2 i. e. preemptees stating, inter alia, that their father Subed Ali purchased .28 acre of land of plot No. 2344 by the Kabala dated October 11, 1969, that on the death of their father in
1985 they have become-co-sharers of the holding land of which sought to be preempted
by the pre-emtpor claiming to be a co-sharer, that they purchased the land sought to be pre-empted at a time when they are already co-sharers of the holding on the death of their father who purchased the land of the holding in question in 1969, that the pre-emptors purchased the land sought to be pre empted with an agreement of re-conveyance and in the light of the agreement of re-conveyance they have transferred the land to the opposite party Nos. 3-10 on August, 11, 1992, that the preemptccs are co-sharers of the holding in
question by inheritance by purchase as well as they are contiguous land owners of the holding in question.
5. The trial Court allowed the prayer for pre-emption on the finding that the preemptees were neither co-sharers by purchased or by inheritance. As against the judgment of the trial Court the pre-emptees went on appeal. The appellant court allowed the appeal on the finding that land purchased by the pre-emtpecs’ father on October 1L, 1969 was of S. A. Khatian No. 1151, that the land of C. S Khatian No. 986 has been listed in S .A Khatian No. 1151 that the finding of the trial Court as to preemptees of not being co sharers on the ground that there was no mention of the S. A. Khatian in the kabala (Ext.’Uma) in the
name of the plaintiff’s father is not correct since the land of C. S. khatian No. 986 has been listed in S. A. Khatian No. 1151, that the pre-emptees as heirs of their father who purchased land of the holding in qucstin on October 11, 1969 are the co sharers of the holding in question by inheritance and as such pre-emtpor is not entitled to the relief sought i. e. pre-emptor can not seek preemption in respect of the transfer that took place on November 21, 1991 in favour of the pre-emptees.
6. The pre-emptor moved the High Court Division in revisional jurisdiciton as against the judgment and order of the appellate court and obtained Rule. The High Court Division on consideration of the materials on record held that the preemptees are the co-sharers of the holding by inheritance and they already being co sharers of the holding made the purchase in question in 1991 and the pre-emptees having had made the purchase at a time when they were already co-shaers by inheritance of the holding land of which sought to be pre-empted, the Miscellaneous case filed seeking pre-emption was not maintainable since a co- sharer by purchase as well as claiming to be a contiguous owner of the land sought to be pre empted sought pre emption against the co sharers who long before the purchase sought to be pre-empted became co sharers of the holding by inheritance.
7. It may be mentioned the pre-emptees pleaded that they purchased the land sought to be pre-empted with an agreement for reconveyance and in pursuant to the said agreement for reconveyance and in pursuant to the said agreement for reconveyance they have reconveyed the land on October, 11, 1992 to the opposite party Nos. 3-10 (seller). In the background of the said pleading of the pre-emptees the High Court Division observed that on the reconveyance of the land sought to be pre-empted by the pre-emptees to the seller opposite party Nos. 3-10 “the cause of action for preemption has been extinguished”. 8. It appears the High Court Division has made the aforesaid observation in the light of the decision in the case of Md. Abbas Ali vs. Md. Osman Ali (minor) and others reported in 37 DLR, 324. In the light of the aforesaid decision the High Court Division further observed “on this ground as well as the rule is liable to be discharged’. On the aforesaid observations and findings the High Court Division discharged the Rule.
9. It may be observed that trial Court as well as appellate Court did not address to the question of contiguity claimed by the pre-emtpor as the said courts proceeded on the question of co-sharership of the pre emptor and the pre-emtpecs. The High Court Division on consideration of the materials on record having had found that the pre emptees are the co-sharers of the holding land of which sought to be preempted concurred with the finding of the appellate court that the pre-emptees are co sharers of the holding land of which sought to be pre-empted.
10. Leave was granted to consider the contentions that the High Court Division was wrong in holding that after re-conveyance there remained nothing to be preempted as title of the land sought to be preempted vested with the original owner and the cause of action for which the case for pre-emption was filed no longer existed, that as the deed of re-conveyance was made during the pendency of the Miscellaneous case for pre-emption and as such the reconveyance so made can not defeat the right of pre-emptor to pre-empt the case land, that the proposition of law as laid down in the case of Md. Abbas Ali vs. Md. Osman Ali (minor) and others reported in 37 DLR, 324 relied upon by the High Court Division in rejecting the prayer for pre emption in case is not reviewed then by the
transaction of the said kind the whole purpose of filing of a pre emption case will be defeated.
11. It is pertinent to mention that the appellant has not taken any leave as regard the question of pre-emptees’ being co Sharers by inheritance prior to the sale sought to be pre-empted as held by the High Court Division as well as by the appellate Court. In the background of the said state of the matter the learned Advocate-on-record for the appellant felt difficulty to proceed with the appeal. It may be mentioned the finding as to pre-emtpees being the co-sharers by inheritance is a finding of fact by the appellate court and the same has been affirmed by the High Court Division on consideration of the materials on record. Since no exception has been taken in the present appeal as to pre-emptees being the co sharers of the holding by inheritance prior to sale sought to be pre-empted the appeal is not a well conceived one and also not legally competent..The contention upon making which the leave was obtained is of no avail in any respect in the background of the finding that the pre emptees are co-sharers by inheritance prior to their purchase of the holding land of which sought to be preempted.
12. The state of right of pre-emption in the background of reconveyance of the land intended to be pre-empted prior to the filing of the case seeking pre-emption and reconveyance of the land during pendency of the case filed seeking pre-emption came up for consideration before this Division as well as before the High Court Division on several occasions. The decision that has been made in the reported cases as regard the state of right of pre-emption in respect of the land intended to be pre-empted but reconveyed to the original owner (vendor) and thereupon right, title and interest have vested with him and that on such re-conveyance the original owner is possessing the land is that with such reconveyance right of pre-emption no longer exists. There is also one line of decisions that a transfer followed by a deed of reconveyance would not defeat the right of pre-emption and that A the would take the pre-emption with the ‘ encumbrance of reconveyance. The transaction i.e. re-conveyance pursuant to an agreement for re-conveyance said to have been executed at the time of sale would be a clog on pre-emption provided the re-conveyance is not sham and colourable transaction or in other words is not a transaction of the kind sole object whereof is to defeat the right of pre-emption. The other view is that if the deed of re-conveyance is a genuine one and that on the basis thereof if the preemptec re-conveyed the land to the original owner (vendor) and the right, title and interest vest in the vendor and the possession of the land sought to be pre-empted also gone back to him in that case even though the reconveyance has been made during the pendency of the case seeking pre-emption the case so filed would become in fructuous since with the reconveyanc right of preemption ceased to exist. In case of re-conveyance either before the filing of the case seeking pre-emption or at a time when the case seeking pre-eption is pending the court would be required to examine whether the transaction is a genuine one or the same is a sham and colourable transaction.
If by re-conveyance right, title and interest does not vest with the original owner and that the possession of the land also does not go back to the original owner in that case the transaction i. e. re-conveyance would be considered sham and colourable transaction and the right of premption will exist. The transaction i. e. reconveyance whether is genuine or sham and colourable one is to be determined in the background of the evidence brought on record by the parties. If the evidence is in the affirmative i. e right, title and interest in
the land sought to be pre-empted has gone back to the vendor and the land sought to be pre-empted is possessed by the vendor, in that case there would be no right of preemption
whether the re-conveyance is made before the filing of the case seeking preemption or during the pendency of the case. The contrary of the aforesaid state of the matter would not defeat the right of preemption.
13. Since in the instant appeal finding of the court of fact being that the pre-emptees are the co-sharers by inheritance of the holding land of which sought to be preempted and the same having been affirmed by the High Court Division on consideration of the materials on record we are of the view the contention making which leave was obtained is of no merit. The matter of re-conveyance was rightly not addressed by the trial Court as well as the appellate Court. The High Court Division was not required to address itself to the question of re-conveyance since the said Division held that the pre-emptees are co-sharers by inheritance of the holding land of which sought to be pre-empted.
14. Even if for argument’s sake it is accepted that reconveyance having been made during pendency of case seeking preemption the same could not be a clog for allowing pre-emption is accepted, then too preemptor was not entitled to pre-empt the land sought to be pre-empted since on consideration of the materials on record last court of fact found that the pre-emptees were co-sharers by inheritance of the holding land of which sought to be pre-empted. The High Court Division on independent consideration of the materials on record concurred with the finding of the appellate Court that the pre-emptees are the co-sharers of the holding by inheritance long before purchase and the pre-emptor is co sharer by purchase. At the time of purchase sought to be pre-empted, the pre-emptees were co-sharers of the holding in question by heritance. The learned Advocate-onrecord
could not refer to any material to take exception to the finding of the High Court Division and the Court of appeal that the pre-emptees are co-sharers of the holding land of which sough to be pre-empted by inheritance at the material time i. e. at the time of sale sought to be pre-empted. In the background of the discussions made hcreinabove we find no merit in the appeal. Accordingly the appeal is dismissed. There is no order as to costs.
Source: III ADC (2006) 447