Present
Mr. Justice .M.Moazzam Husain
CIVIL REVISION NO. 169 OF 2008
Azadur Rahman @ Azakkor Rahman
…Pre-emptor Petitioner
versus
Abdul Musabbir & others
…Pre-emptee-Opposite-Parties
Mr. ASM Abdul Mobin with
Mr. Abdul Alim Miah and
Mr. Nur M. Azami Advocates
…for the petitioners
Mr. Khondkar Shamsul Haque, Advocate
…For the Opposite Parties
Heard on: 22.11.2011 & 27.11.2011
Judgment on: 28.11.2011.
This rule was issued calling in question the judgment and order dated 28.10.2007 passed by the Additional District Judge, Sylhet, in Miscellaneous Appeal No. 60 of 2006 reversing those dated 8.8.2006 passed by the Assistant Judge, Sylhet in Miscellaneous Case No. 31 of 2004.
Facts leading to this rule, in brief, are that the case land originally belonged to one Abdur Rahman, the predecessor of the petitioner and opposite party Nos. 4-45. After the death of Abdur Rahman in 1964 the petitioner No.1 (grandson of Abdur Rahman) and some other opposite parties became owners in possession of the case land. The petitioner No. 1 purchased from his paternal aunt Jarina Bibi her share by a kabala deed dated 22.10.1973. He thus became co-sharer to the case land by inheritance and purchase. The petitioner No.2, wife of petitioner No.1, purchased a portion of the case holding belonging to opposite party No.4, a son of Abdur Rahman, the original owner by a kabala deed dated 11.9.1990. This petitioner thus became co-sharer by purchase to the case khatian. Both the petitioners are possessing the land in case khatian by constructing houses and growing crops. On 17.1.2002 the opposite party No.1 along with some unknown miscreants came to the case land and tried to take into possession of the case land. A GD Entry was made pursuant to the incident. Show case notice was given from the police station. Having received the show cause notice the opposite party abstained from entering into the land and disclosed for the first time that he purchased the land from opposite party Nos. 2 and 3 by a kabala deed.
The petitioner made a search in the local registration office and collected certified copy of the deed on 9.2.2002 and came to know that the deed of sale was executed on 28.5.1998. The case land is a portion of the homestead of the petitioners. They have constructed boundary walls around the land. It may be mentioned that there is more than 1 acre land in the case khatian and only 22 decimal was purchased from Zarina and Arina Bibi. They live with their husbands away from the case land. They do not possess any specific portion of the same. Therefore, the purchasers also did not come into possession of any portion of the case land. The petitioners are co-sharers of the case khatian while the opposite parties are strangers. There is no legal bar for the petitioners in acquisition of ownership of the land. They are entitled to pre-emption of the case land. Hence the case.
The opposite party No.1 contested the case by filing a written objection denying the allegations in their material particulars. Case of the opposite-party, in brief, is that the case is barred by limitation and also by estoppel, acquiescence and waiver. The story of first knowledge on 9.2.2002 is false.
Specific case of the opposite party is that Orina Bibi and Zarina Bibi, daughters of recorded tenant Abdur Rahman, transferred their shares to Md. Mosaddor Ali, Serajul Haque, Mohibur Rahman and Nazimuddin by a registered sale deed dated 15.1.1987 and handed over possession to them. On 17.9.1987 said Mosaddor Ali, Sirajul Hoq, Mohibur Rahman and Nazim Uddin transferred the case land in favour of Morshad Ahmed and Shamsul Alam and handed over possession to them. While said Morshad Ahmed and Mohibur Rahman were in possession they transferred the land to Kamal Uddin and Abdul Mannan by a registered sale deed dated 8.4.1989 and handed over possession of the same. Kamal Uddin and Abdul Mannan transferred the case land to premptee opposite party No.1 by a registered deed dated 26.5.1998 and handed over possession in his favour. After purchasing the land the pre-emptee opposite party No.1 mutated his name and has been paying rent. He developed the land by filling earth, made constructions of boundary walls around the case land. The pre-emptors were very much aware of the sale transactions but due to the financial incapacity they could not purchase the same. Subsequently pre-emptor No.1 went to Middle East and earned some money. In 2003 he proposed to the opposite party No.1 to purchase the land. The opposite party refused to sell the land.
The aunt of the petitioner No.1 transferred their shares in early 1987. Thereafter there were successive transfers to several persons and the pre-emptee is the subsequent purchaser. Therefore, the case is liable to be dismissed as not maintainable.
The case was tried by the Assistant Judge, Kanaighat, Sylhet. During trial three witnesses were examined on behalf of the petitioner and three were examined on behalf of the opposite party. Learned Assistant Judge after trial dismissed the miscellaneous case holding, inter alia, that a) the petitioner said that there was no boundary wall around the case land. In his cross he admitted that there are boundary walls in the four sides of the case land. He admitted that he did not construct the western boundary wall. The petitioner failed to say from where the bricks were bought for construction of the walls b) the petitioner said that when the opposite party and his men demanded the land there was altercations that led to making GD Entry and police officer visited the spot. In cross-examination the PW-2 said he knew nothing about the altercations. If there were altercations worth of GD Entry he ought to have heard the same since he resides only three houses away from the petitioner’s house. PW-3 said straightway that that no altercations at all took place over the dispute of the case land. This means that the petitioner was in the know of the factum of sale from inception c) The opposite party claimed that he purchased the land on 28.5.1998 and mutated his name on 27.10.1998. Since mutation he has been paying rent which suggests that he went into possession of the case land immediately after purchase. d) It appears from the documents proved by the opposite party that the case land was first sold in 1987. It was sold in the second time on in 1989 and finally in 1998 but the petitioner had no knowledge about any of the transactions is not believable.
Being aggrieved the pre-emptor filed Miscellaneous Appeal No. 60 of 2006 in the Court of the District Judge, Sylhet. The appeal was eventually heard by the Additional District Judge, Sylhet. Learned Additional District Judge upon hearing by his impugned judgment allowed the pre-emption case and reversed the judgment and order passed by the Assistant Judge. In allowing the appeal learned Judge observed, amongst others, that admittedly no notice was served upon the petitioner before the sale. If notice is not served it is the date of knowledge of sale from which a pre-emption case may be filed within four months. Since no notice was given the petitioners came to know of the factum of sale on the date the petitioners say they came to be aware. It appears from evidence on records that the petitioners have become successful in proving the fact that they first came to know about the sale on 27.1.2002. Given the fact of knowledge on 27.1.2001 the petitioners filed the pre-emption case within four months therefrom. This means that the pre-emption case was not barred by limitation.
I have heard the learned Advocates and perused the records. It appears that the case land was twice sold before the sale in question. The three sale transactions took place over a period of eleven years. The last sale ie, the sale in question took place in the 5th month of 1998. The preemption case was filed on 24.3.2002. That means the preemption case was filed almost four years after execution of the sale deed. It is not denied that the sale transactions took place. It is not also said that there was any reason for the purchasers to hide their position as purchasers. It is not also the case that the valuation of the deeds was shockingly low which might lead to inference of unholy deal. There is nothing on records that justifies such a silence on the part of the purchasers for value for a decade.
It is said that the third purchaser who followed suit twelve years after the first purchase suddenly broke the news and fell upon the land with armed miscreants in an attempt to dispossess the petitioners. An analysis of the statement of PW-1, 2 and 3 will suggest that there was no such incident ever to take place. PW-2 said he knew nothing about the altercations. PW-3 said straightway that that no altercations at all took place over the dispute of the case land. The story of attempted dispossession by the armed miscreants as alleged by the petitioner falls to the ground. With this falsehood the story of so- called first knowledge about the sale is falsified.
Mr. Mobin learned Advocate apart from his submission on other points raised a law point that deserves consideration. He argued that it is the first sale transaction which is open to pre-emption not the last. Reason being that as soon as the transfer of a share of a holding is effected right to preemption accrues to the co-sharers of the holding. Pre-emption must be sought with regard to the first sale and the subsequent purchasers may be made parties. In support of his argument Mr. Mobin referred to the case of Girija Nath Kundu v Ahammad Ali Sardar & others reported in 50 CWN page 806; Sheikh Lokman Ali v Abdul Mutalib & another reported in 50 CWN page 807 and Hajera Bibi v Noorjahan Begum reported in 35 DLR 238.
In Girija Nath’s case the view taken was that ‘as soon as a transfer of a share in a holding is effected a right to pre-emption immediately accrues to a co-sharer and any subsequent transferee of the property must take it subject to the right. If at any time after an application for pre-emption has been made the property is again transferred, such subsequent transferee may be made a party to the pending proceeding and the money already deposited may be paid to the subsequent transferee who is not entitled in such proceeding to any money in excess of the original deposit.’
In Sheikh Lokman’s case (supra) Calcutta High Court held as follows:
“As soon as a transfer of a share in an occupancy holding is made, a right to pre-emption immediately accrues to the co-sharer tenant only and subsequent transferee of the holding takes it subject to that right, whether the transfer is made before or after an application for pre-emption is made.”
In Hazera Bibi’s Case (supra) a Single Bench of our High Court Division relied upon the aforesaid decisions of Calcutta High Court and held as follows:
I, with respect agree with the principle of law laid down in those two reported cases. Following decision of Sheikh Lokman Ali in which case also the second transfer was made before an application for pre-emption was made, I hold that the petitioner Hazera Bibi’s right to pre-emption subsists even though the second transfer was made before her filing of the application for pre-emption.
From a glance through the aforementioned decisions what emerges as a point of law is that in case of multiple transfer right to pre-emption accrues to a co-sharer of a holding as soon as a share of it is transferred. The Co-sharer of the holding, if he so wishes, may seek pre-emption as against the first transfer in which he may make the subsequent transferee as a party. And in case of success the subsequent transferee is entitled to money not exceeding the deposit made against the first deed. I find myself in full agreement with the principles laid down in the cases cited before me.
In the instant case the petitioner sought pre-emption as against the third deed executed in respect of the case holding. The first transfer is given a goby. As the petitioner’s right to pre-emption accrued as soon as the first transfer was effected pre-emption against the subsequent transfer suffers from legal infirmity and in fact does not lie.
In view of all the discussions made above I find merit in this rule. The rule, therefore, succeeds.
In the result, the impugned judgment and order passed by the learned Additional District Judge, Sylhet, are set aside. Those of the learned Assistant Judge are maintained. The order of stay passed earlier is vacated. There shall, however, be no order as to cost.
Send down the L/C records at once.
Headnotes
State Acquisition and Tenancy Act (XXVIII of 1951)
Section 96
Subsequent transferee takes the transfer subject to right of a co-sharer tenant to pre-emption whether the transfer was made before or after the application for pre-emption
As soon as a transfer of a share in an occupancy holding is made, a right to pre-emption immediately accrues to the co-sharer tenant only and subsequent transferee of the holding takes it subject to that right, whether the transfer is made before or after an application for pre-emption is made.
Subsequent transferee may be made a party to the pending pre-emption proceeding and the money already deposited may be paid to such subsequent transferee who is not entitled to any money in excess of the original deposit.
I, with respect agree with the principle of law laid down in those two reported cases. Following decision of Sheikh Lokman Ali in which case also the second transfer was made before an application for pre-emption was made, I hold that the petitioner Hazera Bibi’s right to pre-emption subsists even though the second transfer was made before her filing of the application for pre-emption.