Appellate Division Cases
(Civil)
PARTIES
Md. Tafazzul IslamJ Mahali
Harendra Nath Mahali…………………………………………Appellant
-Vs-
Ramesh Chandra Haider and others…………………………..Respondents
JUDGES
Md. Ruhul Amin J
Date of Judgment
16th March 2006
State Acquisition and Tenancy Act, 1950 (Sat)(East Bangle XXVIII of 1951), Section 89, 96.
The Transfer of Property Act (IV of1882), Section 52.
Right of Pre-emptor.
Shafi Khan Vs. Mannujan Mussain 35 DLR (AD) 225. Biswaswar Roy vs. Joytennessa 13 DLR, 287 .
The law is settled now that prior to the Filing of the petition seeking pre-emption if the land goes back to the original owner the right of pre-emption does no longer exist but if the re-conveyance is a collusion one i. e. if the right, title and interest do not pass to the original owner and that possession remains with the buyer i. e. pre-emptee in that case even if there is re-conveyance of the land prior to the filing of the petition seeking preemption the right of pre-emption would not be lost. The law is also settled now that if a transfer is burdened with the agreement for re-conveyance the right of pre-emption would not be defeated but the pre-emptor would take the land so pre-empted with the encumbrance of reconveyance (11)
From the trend of reported decisions it is seen that even if during pendency of the case seeking pre-emption if in the background of an agreement for reconveyance, genuineness whereof has been established by reliable evidence, the right of pre-emption is not available (15)
ADVOCATES
Harendra Nath Nancli, Advocate instructed by Mr. Md. Aftab Hossain, Advocate-on-record For the .Appellant .Not Represented Respondents.
JUDGMENT
1. Md. Ruhul Amin J: -The appeal by leave has been filed against the judgment dated July 23, 2001 of Single Bench of the High Court Division in Civil Revision No. 4097 of 1996 making the Rule absolute obtained against the judgment and order dated September 30,1996 of the Court of Additional District Judge, Bagerhat in Miscellaneous Appeal No. 41 of 1985 allowing the same upon reversing the judgment and order dated March 31, 1985 of the Court of Munsif (now Assistant Judge) Upazilla Mongla, Districl-Bagcrhat dismissing the Miscellaneous Case No. 48 of 1944. The Miscellaneous case was filed under section 96 of the State Acquisition and tenancy Act, 1950.
2. The Miscellaneous case was filed stating, inter alia, that the pre-emptor is a co-sharer of the holding land of which has been transferred by the kabala dated May 26,1980 by the opposite party No. 2. a cosharer of the holding (in the Miscellaneous case) to the opposite party No. 1, (in the Miscellaneous case), a stranger without serving any notice under section 89 of the State Acquisition and Tenancy act. 1950, that he came to know about the transfer on Falgoon, 1387 B. S. and that on obtaining certified copy on February 27, 1981 had the definite knowledge about the transfer by the opposite party No. 2 ( in the Miscellaneous petition), (pre-emptee) is a stranger purchaser in the holding of which he is a cosharer and as such as per provision of section 96 of the State Acquisition and Tenancy act he is entitled to preempt the transfer made by the kabala dated 26.05.1880.
3. The Miscellaneous case was contested by the opposite party No.l, (pre-emptee) and the opposite party No.2, (seller) by the filing joint written statement stating, inter alia, that the opposite party No.2, being in need of money transferred the land to the opposite party No,l the pre-emptee with the stipulation of re-conveyance on paying back of the money, that on the very date of registration of the kabala an agreement for rc-conveyance was executed by the purchaser i.e. pre-emptee opposite party No.l, that in terms of the agreement for re-conveyance the transferee had re-conveyed the land and as such Miscellaneous case has become in fructuous, that the Miscellaneous case was bared by limitation and bad for defect of parties.
4. The trial court dismissed the Miscellaneous case on the findings that the same is not haired by limitation and that also not bad for defect of party but the pre-emptor is not entitled to pre-empt the transfer that took place on 26.05.1980 since the purchaser (pre-emptee) as per agreement for re-conveyance has already re-conveyed the land to his vendor (opposite party No. 2 in the Miscellaneous case) on 1.3.1983. 5. It may be mentioned the Miscellaneous case was filed on 4.5.1981. On detailed discussion of the evidence the trial Court arrived at the finding that after re-conveyance the opposite party No. 2, i.e. vendor of the opposite party No. 1 prcemptee is possessing the land.
6. The pre-emptor went on appeal. The appellate Court upon observing that the reconveyance was made during pendency of the Miscellaneous case and that the said reconveyance might have been made to frustrate the right of pre-emption and that the ‘Ekrarnama’ which is an unregistered document might have been created to frustrate the right of pre-emption and as such in the background of the afore state of the matter ” the alleged reconveyance does not affect the pre-emption right of the pre-emptor who is an admitted co-sharer. Thus the Ld. Munsif was not right in dis-allowing the pre-emption case and his finding in that behalf warrants interference with” allowed the appeal and thereupon setting aside the judgment and order of the trial Court allowed the prayer for pre-emption.
7. The pre-emptee as against the Judgment of the lower appellate Court moved the High Court Division in revision-al jurisdiction and obtained Rule.
8. The High Court Division on consideration of the evidence placed before the Court by the learned Advocate appearing for the pre-emptor held that there was an agreement for re-conveyance and that in terms of the agreement of re-conveyance the land sought to be preempted has been re-conveyed and the same is being possessed by the vendor of the pre-emptcc. It may be mentioned tined trial Court on detailed discussions of the evidence held that the transfer that was made by the opposite party No.2, here appellant was followed by a deed of re-conveyance and that in terms of the deed of re-conveyance the land has been re-conveyed by the pre-emptee to his vendor. The trial Court on consideration of the evidence also held that after re- conveyance the land sought to be pre-empted is possessed by the vendor. The High Court Division noticed that the appellate Court without considering the evidence on record only upon referring to the decision in certain reported cases set aside the judgment and order of the trial Court on the finding that as the re-conveyance has taken place during the pendency of the Miscellaneous case as such the re-conveyance so took place did not affect the right of pre-emption. The High Court Division finally observed since after the re-conveyance the
vendor is in possession of the land the reconveyance so made was quite genuine and upon re-conveyance as the pre-emptor lost his right of pre-emption the appellate Court was in error in allowing the prayer for preemption upon setting aside the judgment and order ol’ the trial Court.
9. Leave was granted to consider the contention that re-conveyance having been made during pendency of the pre-emption proceeding and as because of that right of pre-emption can not be defeated the High Court Division was in error in making the rule absolute placing reliance on the decision reported in 35 DLR (AD) 225, that High Court Division failed to notice that Miscellaneous case seeking pre-emption was filed on May 4, 1981 and the re-conveyance said to have been made on March 1, 1983 i.e. long after the filing of the Miscellaneous case and in the background of the said fact the High Court Division was in error in not holding that the re-conveyance so made was collusive and fraudulent and that the re-conveyance was made for collateral purpose with the end in view for defeating the right of pre-emption, that High Court Division was in error in not
holding that in the background of the facts and circumstances of the case and re-conveyance having been made long after filing of the petition seeking pre-emption, as such because of the said re-conveyance right of pre-emption can not be taken away or in other words can not be defeated, that High Court Division ought to have held that the re-conveyance was hit by section 52 of the Transfer of Property Act, that it having been proved by the pre-emptor that possession of the land remain with the pre-emptee even after re-conveyance but the High Court Division on mis-reading of the evidence and that upon mis-construction of the ‘Ekrarnama’ was in error in not holding that the unregistered Ekrarnama and the deed of re-conveyance are anti-dated and product of after thought for the purpose of frustrating the claim of pre-emption.
10. The undenied position is that while the Miscellaneous case filed under section 96 of the State Acquisition and Tenancy Act was pending the land sought to be preempted was re-conveyed by the transferee to the original vendor. It was the case of the opposite party Nos. 1 and 2 (buyer and seller) that on the date of transfer sought to be pre-empted an ‘Ekrarnama’ was given by the transferee that on re-payment of the money he would return the land to the seller. In the background of the stipulation in the ‘ Ekrarnama’ or agreement for re-conveyance, the buyer (pre-emptee) re-conveyed the land to the original vendor. The trial Court rejected the prayer for pre-emption since the subject matter of pre-emption had gone back to the original owner. The appellate Court reversed the said finding on the observation as mentioned hereinbefore. of the trial Court on the finding that on the very date of transfer and agreement for re-conveyance was executed by the transferee (pre-emptee) and that in terms of agreemnt for re-conveyance the purchaser has re-conveyed the land to the seller (original owner) and he is in possession. It may mentioned the High Court Division as well as the trial Court on due consideration of the evidence held that after re-conveyance the original owner is in possession of the land. Since the appellate Court did not discuss the evidence as was required by the law while reversing the judgment of the trial Court the High Court Division scrutinized the evidence and thereupon arrived at the finding that the evidence is sufficient on the record showing the genuineness of the assertion of the original owner that on the date of the sale the buyer executed an agreement for re-conveyance and that in terms of agreement for re-conveyance the buyer re-conveyed the land and the original owner is in possession. The fact of execution of the agreement of re-conveyance was proved by the O.P.W. No. 3 the scribe of the sale deed.
11. The law is settled now that prior to the filing of the petition seeking pre-emption if the land goes back to the original owner the right of pre-emption does no longer exist but if the re-conveyance is a collusion one i. c. if the right, title and interest do not pass to the original owner and that possession remains with the buyer i. e. pre-emptee in that case even if there is reconveyance of the land prior to the filing of the petition seeking pre-emption the right of pre-emption would not be lost.
12. The law is also settled now that if a transfer is burdened with the agreement for re-conveyance the right of pre-emption would not be defeated but the pre-emptor would take the land so pre-empted with the encumbrance of re-conveyance. This view was held in the case of Biswaswar Roy vs. Joytennessa and others reported in 13 DLR, 287 . The view expressed in the aforesaid case has been found to be correct by the Appellate Division in the case of Shafi Khan Vs. Mannujan Mussain and others reported in 35 DLR (AD) 225 wherein it has been observed “When a transfer is made on condition for reconveyance, the right of pre-emption is subject to this condition for reconveyance is found to be correct being in accord with section 40 of the Transfer of Property Act as well as with reason.”
13. In the case reported in 35 DLR (Ad), 225 it has been held ” The main question for careful examination will be whether he actually got back his land, and if the answer is in the affirmative, the position will be as if no transfer was at all made by him. If, however, it is found that the re-sale is a colourable show-up or a mere paper transaction and that right, title and interest in the land have not gone back to the vendor but still remain vested in the transferee then the re-sale may be ignored and pre-emption may be allowed.”
14. In the case of Muzaffar Ali Bcpari. Vs. Omar Ali and others reported in (1996) 1 BLC (AD), 25 it has been held that in case a reconveyance is for the purpose of defeating
the right of pre-emption and that the reconveyance is a collusive one through the clandestine understanding between the buyer (pre-emptee) and the seller (original owner) and that the transfer is a colourable and sham transaction and that the preemptee in fact did not part with the possession of the land allegedly shown to have been reconveyed to the original owner, a reconveyance of the aforesaid nature would not affect the right of pre-emption. 15. From the trend of reported decisions it is seen that even if during pendency of the case seeking pre-emption if in the background of an agreement for reconveyance, genuineness whereof has been established by reliable evidence, the right of pre-emption is not available. The matters which are to be looked into in a situation where right of pre-emption is not available because of the reconveyance either prior to the filing of the petition seeking pre-emption or during the pendency of the case seeking pre-emption as to whether the reconveyance so made is a colourable and sham transaction and whether the right, title and interest because of he reconveyance have gone back to the original owner and whether the preemptee has parted with the possession of the land . If the re-conveyance is tainted with one of the aforesaid factors, then right of pre-emption would not be affected. Once genuineness of the agreement for reconveyance
is established by the original owner and that because of the agreement for reconveyance the buyer (Pre-emptee) had reconveyed the land and the right, title and interest have passed to the original owner and that the land so reconveyed is possessed by the original owner in that situation the prayer for pre-emption would not be allowed or in other words pre-emption would not be granted.
16. In the instant case from the materials on record it is seen that genuineness of the agreement for reconveyance has been established by reliable evidence and it has also been established that after the reconveyance right, title and interest in the land sought to be pre-empted have gone back to the original owner and that he is in possession of the land so reconveyed. There is nothing on record to show that the reconveyance in the instant case was a colourable and sham transaction or in other words was not a genuine one or the re-conveyance has been made with the object of defeating the right of pre-emption.
17. The other contention of the appellant that re conveyance was made during pendency of the Miscellaneous Case the same was hit by the provision of section 52 of the Transfer of Property Act is of no merit since re-conveyance was made in terms of the agreement for re-conveyance.
18. It is seen that the original owner is actually prosecuting the case after re-conveyance at all stages. In the background of the discussions made hereinabove we find no merit in the appeal. Accordingly the appeal is dismissed with cost of TK. 1,000/- ( One thousand).
Source: III ADC (2006) 433