High Court – Abdul Awal – C. R. No.1251 of 2010

     Present:

 Mr. Justice Sheikh Abdul Awal

 

Civil Revision No.1251 of 2010.

 

Saijuddin Molla.

                                      …. Petitioner.

-Versus-

Abdur Rahman and others.

                                                            …Opposite-parties.

Mr.Syed Mahmudul Ahsan, Advocate

                             …For the petitioner.

Mr. Probir Halder with

Mr. Abul Kalam Azad, Advocates

              …For the opposite-party No.1.

                           

Perused on 19.10.2011 and Judgment on  22.11.2011.

 

 

This Rule was issued calling upon the opposite party No.1 to show cause as to why the impugned judgment and order dated 3.02.2010 passed by the learned Joint District Judge, 2nd Court, Manikganj in Title Appeal No.06 of 2007 dismissing the appeal and affirming the judgment and order dated 22.01.2007 passed by the learned Senior Assistant Judge, Sadar, Manikganj in Pre-emption Miscellaneous Case No.21 of 2003 should not be set-aside.

Relevant facts, in short, are that the opposite party as pre-emptor-applicant filed Miscellaneous (Pre-emption) Case No.21 of 2003 under section 96 of the State Acquisition and Tenancy Act in the Court of Senior Assistant Judge, Sadar, Manikganj for pre-empting the case land as described in the application stating that he was a co-sharer to the case jote by inheritance. His full brother transferred the land under pre-emption  by a registered kabala dated 9.10.2001 to the petitioner-opposite party No.1, a sharer in the tenancy by purchase  without serving any statutory  notice upon him. The pre-emptor came to his village home in the first part of Baishakh, 1410 B.S. and knew about the impugned transfer and then after obtaining the  certified copy  of the impugned kabala the pre-emptor filed the case on 17.5.2003 within 4(four) months from the date of his knowledge.

The opposite party-petitioner resisted the case by filing  written objection stating that  the pre-emption application is not maintainable in its present form and manner mainly on 3(three) counts that; (i) the pre-emption case is hopelessly barred by law of limitation inasmuch as the pre-emptor had the knowledge of the sale from the very beginning of the sale, (ii) the pre-emption case is barred by principle of estoppels, waiver and acquiescence and (iii) the case  is also  bad for defect of parties inasmuch as some of the co-sharers being the heirs of Jonab Ali and Abdul Latif were not made parties  in the pre-emption case.

The learned Senior Assistant Judge, Sadar, Manikganj on consideration of the evidence on record allowed the pre-emption   believing the date of knowledge of sale in question as claimed by the pre-emptor.

On appeal, Miscellaneous Appeal No.6 of 2007, the learned Joint District Judge, Manikganj by the impugned judgment and order dated 3.02.2010 dismissed the appeal and affirmed the decision of the trial Court below.

Being aggrieved by the aforesaid judgment and order the present opposite party-appellant-petitioner (Vendee) moved this Court and obtained the present Rule.

Mr. Syed Mahmudul Ahsan, the learned Advocate appearing for the petitioner after placing the judgment of two Courts below and the deposition of PWs. and Opws. submits that judgments of  both the Courts below are based on misreading and non consideration of the material evidence on record and as such, the same are liable to be set-aside. He next submits that both the Courts below committed wrong in not holding that the case was  bad for defect of parties inasmuch as admittedly during pendency of the pre-emption case the vendor Jonab Ali died on 11.7.2004 but the pre-emptor-opposite party No.1 did not implead the heirs of deceased-opposite party No.2.

Mr. Mahmudul Ahsan further upon referring to the material portion of the pre-emption application submits that admittedly the pre-emptor and pre-emptee-seller   are full brother and both of them became co-sharer to the case jote by inheritance, both of them possessed thereon and as such, it cannot be said that the pre-emptor-opposite party was totally unaware about the impugned kabala over a period of 1(one) year and 6 months. The learned Advocate finally submits that the proposition of law is by now well settled that a heavy burden lies on the pre-emptor to discharge the onus of proof that  he filed the case within the statutory period of 4(four) months from the date of knowledge but in this case the pre-emptor having failed to discharge the onus of proof that she filed the case  within  4(four) months from the date of his knowledge by adducing cogent and reliable evidence and as such  the judgment of two Courts below are liable to be set aside.

Mr. Probir Halder, the learned Advocate appearing for the opposite party No.1, on the other hand, supports the impugned judgments of two Courts below which were according to him just, correct and proper. He submits that the pre-emption should not be refused on the sole ground of non-joinder of all the co-sharers. Mr. Halder,  to fortify his submission has relied on the decisions reported in 33 DLR(AD) 113 and 31 DLR(AD) 89.

I have heard the learned Advocates for both the sides and perused the Revisional application, judgments of two Courts below, deposition of witnesses and other materials on record as filed thereto. Now, let me consider first the vital and material question whether the application for pre-emption was barred by limitation. In the present case, certified copy of the impugned kabala shows that the kabala was registered on  9.10.2001 as per provision of section 60 of the Registration Actand the present case was filed long lapse of the stipulated lime of limitation on 17.05.2003.

During trial 4 witnesses were examined by the pre-emptor-opposite party No. 1 and 3 witnesses were examined by the pre-emptee petitioner. Pre-emptor-opposite party himself was examined as  PW-1, who stated in his deposition  that he came to know about the impugned transfer on 5th Baishak, 1310 B.S. and then after  obtaining    certified copy of the impugned  kabala dated  9.10.2001  became aware  that pre-emptee opposite party No. 1 purchased the case land from his elder brother. This witness in his deposition stated that: B­e¡u¡l ¢hH²u L­l­R m¢a­gl L¡­Rz IV¡u pre-emption  L¢l e¡Cz

PW-2, PW-3 and PW-4 in their respective deposition disclosed nothing with regard to the date of knowledge of the transfer of the land under pre-emption of the pre-emptor-opposite party No. 1. Moreover, all of them stated in their respective deposition that the pre-emptee petitioner has been possessing the case land.  OPW-1, Saijuddin Mollah stated in his deposition that: ®hQ¡ ¢hH²£l Lb¡ Bx lqj¡e S¡e­a¡z This witness also stated that he became co-sharer in the tenancy  by purchase  along with 11 others including  the father of the pre-emptor, Abdur Rahman. OPW-2, Monwara Begum, wife of Jonab Ali (vendor) in her deposition stated that the pre-emptor Abdur Rahman is her husband’s brother. This witness also stated that the land in question was transferred within the full knowledge of the pre-emptor,  Abdur Rahman.

It appears that the pre-emptor Abdur Rahman claims  to have knowledge of the transfer of the land more than one year after the transfer but he offered no reasonable explanation for such a late knowledge of the transfer living in the same mess with the vendor ( full brother of the pre-emptor) and other brothers. As I have already noticed that in this case the application for pre-emption was filed more than 1 year and 7 months  after the transfer in question and thus, a heavy burden lies on the pre-emptor to discharge the onus of proof that  he filed the case within the statutory period of 4(four) months from the date of knowledge.

On a careful consideration of the evidence of PWs. and OPWs. it appears  that pre-emptor having failed to prove the date of knowledge of the transfer  by adducing cogent and reliable evidence and the trial Court as well as the Court of appeal below wrongly arrived at a finding that the application for pre-emption was not barred by limitation. There being a total non consideration of all the witnesses, the learned judges of both the Courts below acted wrongly in not holding that the pre-emption was barred by limitation.

Another bone of contention raised in this Revision centers round the finding of the Court of appeal  below as to whether it has rightly arrived at a finding that the suit  was not bad for defect of party. Admittedly, during the pendency of the pre-emption case the vendor (full brother of the pre-emptor) Jonab Ali died on 11.7.2004 and the pre-emptor did not implead the name of the heirs of Jonab Ali in the case. It is also found that full brother of the pre-emptor named Anwar transferred his share to one Abdul Latif but the pre-emptor did not make him party to the pre-emption proceeding and such failure of the pre-emptor   to implead them in the application for pre-emption is a serious defect of party since impleading of a co-sharer, whether by inheritance or by purchase, is a mandatory provision of section 96 of the State Acquisition and Tenancy Act.

In this connection, I must quote a passage from the case of Ashini Kumar Karmakar being dead his heirs Vs. Hari Mohan Shil and others reported in 4 BLD(AD) 27 wherein, it has been held that:

        “It will thus appear that Sayera Khatun being found to      be a co-sharer she was a necessary party in the pre-emption       proceeding and the failure to make her party to the pre- emption proceeding has vitiated the pre-emption case. The       mere fact that the respondent did not disclose her name does    not absolve the appellant-pre-emptors from his mandatory         duty to implead her by ascertaining necessary particulars.         Because the pre-emptors could not be oblivious as to Ext.B(2)   the kabala dated 2.6.73 by which Sayera Khatun purchased    1.40 acres of land out of the disputed tenancy and ought to       have made her a party. “

In the given facts and circumstances of the case and the decision of the highest Court as cited above, I have no hesitation to hold that the pre-emption case was bad for defect of party.

 There is another aspect of law. On scrutiny of the evidence and materials on record, it appears that the opposite party-petitioner (vendee) along with 11 others including Koyed Ali, the father of the pre-emptor Abdur Rahman had become co-sharers in the tenancy by a registered kabala deed dated 13.5.1974. Koyed Ali died living behind 3 sons and 2 daughters and  on his death his songs and daughters inherited the share  of Koyed Ali. Thereafter, the elder son of Koyed Ali , pre-emptee–opposite party No. 2  sold his share to the pre-emptee petitioner by executing a registered kabala dated 9.10.2001 and,  the pre-emptor opposite party, younger brother of the vendor filed  the case for pre-emption on  17.05.2003  stating that his elder brother without serving any notice transferred the case land to the pre-emptee- Saijuddin Mollah who  is a co-sharer by purchase and the pre-emptor  is a co-sharer by inheritance and as such,  he is  entitled to get the land under pre-emption. Pre-emptee-purchaser  himself was examined as OPW-1, who  in his deposition stated that: HC S¢jl j¡¢mL ¢Rm Bx q¡¢mjz ¢hNa Cw 13/5/74 Cw­lS£­a Bj¡­l pq ®j¡V 12 S­el L¡­R 1|52 ¢Xw ¢hH²u L­lz Bl, Hp, ®lLXÑ Bj¡­cl 12 S­el e¡­j q­u­Rz Bx lqj¡­el h¡h¡l e¡j L­uc Bm£ ¢pLc¡lz ®pJ HC 12 S­el HLSez Cj¡e Bm£l Awn B¢j ¢L­e¢Rz e¡x M¢au¡­el S¢j Bx lqj¡e f¡u e¡Cz a¡q¡l 2 i¡C Se¡h Bm£ J BeJu¡l f¡uz BeJu¡­ll Awn m¢a­gl ¢eLV ¢hH²u L­lz Bj¡l L¡­R ¢hH²u L­l Se¡h Bm£z

Both the Courts below held that the pre-emptor is  entitled to pre-empt the land inasmuch as opposite party No.2 without serving any notice upon the pre-emptor  transferred the case land to the pre-emptee opposite party No. 1, who  is a co-sharer by purchase and the pre-emptor  is a co-sharer by inheritance.

Provisions for pre-emption under section 96 of the State Acquisition and Tenancy Act are not applicable “to a transfer to a co-sharer” whose interest in the tenancy has accrued by inheritance or otherwise than by purchase. This provision is clearly stated in clause (a) of sub-section (10) of section 96. This sub-section is quoted below:

        (10) Noting in this section shall apply to —

        (a) a transfer to a co-sharer in the tenancy whose interest has accrued otherwise than by purchase;

In this case, the pre-emptor claims to be a co-sharer by inheritance because he inherited the share, in the tenancy of their father named  Koyed Ali,    who along with 11 others including the pre-emptee -purchaser   became co-sharers in the tenancy by purchase from one of the original  co-sharer and that  on his  death his share developed upon his sons and daughters.  So,     in the facts and circumstance of the case, the pre-emptee  purchaser was a first decree co-sharer in the tenancy who acquired interest in the tenancy by purchase along with 11 others including Koyed Ali, the father of the pre-emptor. Therefore, the transfer in question made to the petitioner is protected and immune from pre-emption as per provision of sub section 10 of section 96 of the State Acquisition and Tenancy Act, 1950.

This important question did not receive due consideration from the judges of both the Courts below. Therefore, I am unable to accept the contention raised by Mr. Haldar that both the Courts below committed no wrong in allowing the pre-emption.

For the reasons stated above, I am inclined to hold that both the Courts below seriously erred in law in passing the impugned judgments without properly applying its judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice.

In the result, the Rule succeeds. The impugned judgment and order dated 3.02.2010 passed by the learned Joint District Judge, 2nd Court, Manikganj in Title Appeal No.06 of 2007 dismissing the appeal and affirming the judgment and order dated 22.01.2007 passed by the learned Senior Assistant Judge, Sadar, Manikganj in Pre-emption Miscellaneous Case No.21 of 2003 is set-aside.

Let a copy of this judgment along with lower Court’s record be sent down at once.

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