Digandra Chandra Pandith Vs. Abdur Razzaque and another

Appellate Division Cases

(Civil)

PARTIES

Digandra Chandra Pandith………………. Petitioner

-VS-

Abdur Razzaque and another…………………. Respondents

JUSTICES

Md. Ruhul Amin J

M.M. Ruhul Amin J

Judgment Dated :15th October 2006

The Non-Agricultural Tenancy Act 1949, Sections 24, 24(11 )(b)

Seeking pre-emption under Section 24 of the Non-Agricultural Tenancy Act 1949 (1)

The High Court Division made the Rule absolute on the finding that the pre-emptor in his application seeking preemption did not disclose of hus initial source of knowledge and that the pre-emptor has failed to prove his knowledge about the transfer and that the lower appellate Court has misconstrued the provision of Section 24 of the Non-Agricultural Tenancy act and thus was in serious error in holding the period of limitation would be the matter for consideration after the decision as to the nature of the document by which transfer has been made, that the trial Court held that the Miscellaneous case was barred by limitation upon due consideration of the evidence but the appellate Court upon proceeding on the wrong premises set aside the finding of the trial Court on the question of limitation. The High Court Division also held that pre-emptor miserably failed to prove his initial date of knowledge about the transfer sought to be pre-empted, as to the nature of transaction the High Court Division held that the document in question i.e. the deed by which the transfer has been made and sought to be pre-empted apparently shows is a deed of exchange and in that state of the matter onus was upon the pre-emptor to establish that the transfer was camouflaged one i.e. not a deed of exchange but a deed of sale, but the pre-emptor failed to establish that the document by which transfer has been made and sought to be pre-empted was a camouflage document i.e. not a deed of exchange but a deed of sale ……………(6)

In that state of the matter we find no substance in the petition………….. (8)

Accordingly the petition is dismissed……………..(9)

Md. Nawab AH, Advocate-on-record. ………………….For the Petitioner

Respondent………………………. Not represented

Civil Petition for Leave to Appeal No. 1084 of 2005

(From the Judgment and Order dated March 27, 2005 passed by the High Court Division

in Civil Revision No. 5059 of 1998).

JUDGMENT

Md. Ruhul Amin J : This petition for leave to appeal has been filed against the judgment dated March 27, 2005 of a Single Bench of the High Court Division in Civil Revision No. 5059 of 1998 making absolute the Rule obtained against the judgment and order dated September 10, 1998 of the 3rd Court of Subordinate Judge (now Joint District Judge), Mymensingh in Miscellaneous Appeal No. 91 of 1996 reversing the judgment and order dated August 31,1996 of the Court of Senior Assistant Judge, Gafargaon, Mymensingh in Miscellaneous Case (Pre-emption) No. 16 of 1995 dismissing the same. The Miscellaneous Case was filed seeking preemption under Section 24 of the Non-Agricultural Tenancy Act 1949 in respect of the transfer that took place on September 1, 1986. Land sought to be preempted is 2.26 acres.

2. Pre-emption was sought of the transfer took place on September 1, 1986 averring that the pre-emptor case to know about the transfer on February 15, 1995. It was averred that the transaction although camouflage as exchange but in fact a sale. It was also averred in support of the claim of pre-emption that prior to February 15.1995, while the pre-emptor obtained the certified copy, he had no definite knowledge about the transfer that took place on September 1, 1986. It may be mentioned it has been averred by the pre-emptor that he had initial knowledge about the transfer on January 21, 1995. It is also the case of the pre-emptor that he is a co-sharer of the holding land of which has been transferred, by the opposite party No.2 and that the prc-emptec is a stranger.

3. The prayer for pre-emption was opposed by the opposite party No. 1 i.e. the pre-emptee contending that the Miscellaneous Case is not maintainable because of the provision of Section 24 (11) (b) of the Non-Agricultural Tenancy Act, 1949 since the transaction sough to be pre-empted is an exchange. It was also the case of the pre-emptee that the Miscellaneous Case was hopelessly barred by limitation.

4. The trial Court dismissed the Miscellaneous case on the finding that the Miscellaneous Case was hopelessly barred by limitation and that the transaction sought to be pre-empted is an exchange and as such prayer for pre-emption is not available because of the provision of Section 24 (11) (b) of the Non-Agricultural Tenancy Act 1949.

5. The pre-emptor went on appeal and the appellate Court set aside the judgment and order of the trial court on the finding that the document by which the transaction has been made is not in fact a deed of exchange but a sale deed, that the Miscellaneous Case is not barred by limitation, that the pre-emptor is a co-sharer and that the Miscellaneous Case is not bad for defect of party.

6. As against the judgment and order of the lower appellate Court the pre-emptee moved the High Court Division in revisional jurisdiction and obtained Rule. The High Court Division made the Rule absolute on the finding that the pre-emptor in his application seeking pre-emption did not disclose ofhus initial source of knowledge and that the pre-emptor has failed to prove his knowledge about the transfer and that the lower appellate Court has misconstrued the provision of Section 24 of the Non-Agricultural Tenancy act and thus was in serious error in holding the period of limitation would be the matter for consideration after the decision as to the nature of the document by which transfer has been made, that the trial Court held that the Miscellaneous case was barred by limitation upon due consideration of the evidence but the appellate Court upon proceeding on the wrong premises set aside the finding of the trial Court on the question of limitation. The High Court Division also held that pre-emptor miserably failed to prove his initial date of knowledge about the transfer sought to be pre-empted, as to the nature of transaction the High Court Division held that the document in question i.e. the deed by which the transfer has been made and sought to be pre-empted apparently shows is a deed of exchange and in that state of the matter onus was upon the pre-emptor to establish that the transfer was camouflaged one i.e. not a deed of exchange but a deed of sale, but the pre-emptor failed to establish that the document by which transfer has been made and sought to be pre-empted was a camouflage document i.e. not a deed of exchange but a deed of sale.

7. The learned Advocate-on-record for the petitioner took us through the material on

record and failed to point out that the High Court Division was in error in holding that

the Miscellaneous Case was barred by limitation and that the transaction sought

to be pre-empted is an exchange, and not a sale. No mis-reading or non-consideration

of oral evidence and mis-construction of the document has been pointed out by the

learned Advocate-on-record on the part of the High Court Division in making the

Rule absolute.

8. In that state of the matter we find no substance in the petition.

9. Accordingly the petition is dismissed.

Source : V ADC (2008), 307

Disclaimer:

The information contains in this web-site is prepared for educational purpose. This site may be used by the students, faculties, independent learners and the learned advocates of all over the world. Researchers all over the world have the access to upload their writes up in this site. In consideration of the people’s participation in the Web Page, the individual, group, organization, business, spectator, or other, does hereby release and forever discharge the Lawyers & Jurists, and its officers, board, and employees, jointly and severally from any and all actions, causes of actions, claims and demands for, upon or by reason of any damage, loss or injury, which hereafter may be sustained by participating their work in the Web Page. This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist.  The provisions of any state’s law providing substance that releases shall not extend to claims, demands, injuries, or damages which are known or unsuspected to exist at this time, to the person executing such release, are hereby expressly waived. However the Lawyers & Jurists makes no warranty expressed or implied or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information, apparatus, product or process disclosed or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product process or service by trade name, trade mark, manufacturer or otherwise, does not necessarily constitute or imply its endorsement, recommendation or favouring by the Lawyers & Jurists. The views and opinions of the authors expressed in the Web site do not necessarily state or reflect those of the Lawyers & Jurists. Above all, if there is any complaint drop by any independent user to the admin for any contents of this site, the Lawyers & Jurists would remove this immediately from its site.