Appellate Division Case
(Civil)
PARTIES
Md. Dewan Ali…………………… Appellant.
-Vs-
Md. Jasim Uddin and others……………… Respondents.
JUSTICES
Mohammed Fazlul Karim J
Md. Joynul Abedin J
Md. Hassan Ameen J
Judgment Dated: 6th January 2008
Shi Audh Behari Singh Vs. Gajadhar Jaipura and others, (1955) ISCR 70
Fazaruddin vs. Maijuddin, reported in 44 DLR (AD) 62
The State Acquisition and Tenancy Act, Section 89
Filed pre-emption Miscellaneous Case No.6 of 1993 against the appellant Md. Dewan Ali claiming him as the co-sharer in the case holding alleging that said Md. Dewan Ali is a stranger purchaser and Saleha Bibi sold the case land to him (Md. Dewan Ali) without serving notice under section 89 of the State Acquisition and Tenancy Act upon him……….. (2)
Right of pre-emption accrues on the date of registration of the sale deed.. The pre-emptive right of purchase of the case land accrued to the preemptor only after the case land was sold to the purchaser pre-emptee by its owner and not before. Pre-emptive right does not exist before sale and so it is not enforceable before sale. Any such right before sale is an inchoate and immature right. Hence no conduct of the pre-emptor before sale of the case land refusing to purchase the same or consenting sale thereof to other can constitute waiver, acquiescence or estoppel demolishing his right of preemption. The bare requisite for extinction or demolition of preemption right lies in the accrual or existence of such right. In the instant case, the facts and circumstances proved on evidence do not establish that the conduct of the pre-emptor amounted to waiver, acquiescence or estoppel affecting his right of pre-emption………………… (14)
The appeal is accordingly dismissed without any order as to costs ………………(15)
Afsar Uddin Ahmed Khan, Advocate, instructed by A.K.M. Shahidul Huq, Advocate-on-Record…………………… For the Appellant
Md. Nawab Ali, Advocate- on-Record. …………….For Respondent No.l Respondent Nos.2-7. ………………………..Not represented.
Civil Appeal No. 133 of 2003
(From the judgment and order dated 30.6.2002 passed by the High Court Division in Civil Revision No. 1727 of 1995.)
JUDGMENT
Md. Jovnul Abedin J: This appeal by leave is directed against the judgment and order dated 30.6.2002 passed by a Single Bench of the High Court Division in Civil Revision No. 1727 of 1995 discharging the Rule.
2. Relevant facts are that Mizanur Rahman and yakub Ali owned and possessed .42 acres of land of Plot No.31 of S.A. Khatian No.40 of Mouza Kaempur under Police StationArihazar, District Narayanganj. The S.A. Khatian was prepared in their names. Mizanur Rahman sold his .21 acres of land to Akkas Ali. Akkas ah died leaving his son Abdur Rashid as his only heir. Abdur Rashid sold the said land by two registered deeds on 6.5.1987 to Md. Jasimuddin (the pre-emptor) now respondent. Said Yakub All sold his .21 acres of land to his wife Saleha Bibi on 27.2.1965. Saleha Bibi on 28.1.1993 sold the said land, which is the case land, to Md. Dewan Ali (the preemptee) now the appellant. Jasimuddin obtained the certified copy of the sale deed of the case land on 11.4.1993 and came to learn definitely about the said sale and filed pre-emption Miscellaneous Case No.6 of 1993 against the appellant Md. Dewan Ali claiming him as the co-sharer in the case holding alleging that said Md. Dewan Ali is a stranger purchaser and Saleha Bibi sold the case land to him (Md. Dewan Ali) without serving notice under section 89 of the State Acquisition and Tenancy Act upon him.
3. Md. Dewan Ali and Saleha Begum contested the pre-emption case by filing a joint written objection contending, inter aha, that Akkas Ali admittedly was the owner of .21 acres of land and he died leaving one son Abdur Rashid and two daughters and they were necessary parties in the case, but they not having been made parties the case was bad for non joinder of necessary parties. Saleha Begum in the month of Agrahayan 1397 B.S. mortgaged the case land for Tk.8,000/- to the preemptor Jasimuddin on the basis of an
unregistered agreement on condition that on re-payment of the said money the preemptor Md. Jasimuddin would restore possession of the case land to her. Later on, Saleha Bibi being in need of cash money to clear up the bank debt of her deceased husband Yakub Ali offered to sell the case land to Jasimuddin as it was earlier mortgaged with him. But the preemptor Md. Jasimuddin refused to purchase the same. Thereafter, within the full
knowledge of the pre-emptor Md. Jasimuddin the case land was sold to the pre-emptee Md. Dewan Ali. It is also contended in the written objection that the pre-emptor Md. Jasimuddin in presence of respectable persons of the locality including Mohammad Ali, O.P.W.2, refused to purchase the case land and pressed for refund—of his mortgage money of tk.8,000/- by Saleha Bibi through O.P.W.2 Mohammad AH. Accordingly Saleha Bibi refunded the aforesaid amount of mortgage money to pre-emptor Md.Jasimuddin and sold the case land to preemptee Md. Dewan Ali by a registered sale deed and the pre-emptor Md. Jasimuddin delivered possession of the case land to the pre-emptee Md. Dewan Ali.
4. In this background, the trial court heard the pre-emption case and dismissed the same on the finding, inter alia, that before the sale possession of the case land was with the prc-emptor Md. Jasimuddin as mortgagee on the basis of the unregistered mortgage deed dated 28.11.1990 and that the pre-emptor had full knowledge about the transfer in question of the case land from the beginning and that the pre-emptor Md. Jasimuddin refused to purchase the case land and thus he lost his pght of preemption by waiver and acquiescence. The Trial Court however found that the pre-emption case was filed within time and it did not suffer from nonjoinder of necessary party.
5. Against the aforesaid judgment and order of the trial court the preemptor Md. Jasimuddin preferred Miscellaneous Appeal No.8 of 1994 before the Additional Subordinate Judge. The appellate court thereafter upon hearing the parties set aside the judgment and order of the trial court and allowed the pre-emption case on the finding that there was no waiver or acquiescence on the part of the prcemptor as he did not waive his right of pre-emption as found by the trial court and the pre-emptcc Md. Dewan Ali could not establish that the preemptor Jasimuddin refused to purchase the case land after he was offered to purchase by the pre-emptee seller Saleha Begum.
6. Against the judgment and order of the lower appellate court the purchaser preemptee
Md. Dewan Ali preferred Civil Revision No. 1727 of 1995 and obtained the rule from the High Court Division. Learned Single Judge of the High Court Division thereafter heard the rule and discharged the same by the impugned judgment and order dated 30.6.2002 concurring with the finding of the lower appellate court that the prcemptor Jasimuddin
was not aware of the kabala under preemption nor did he acquiescence or waive his right of preemption and the purchaser preemptee Md. Dewan Ali was a stranger purchaser. Against this backdrop, the purchaser preemptee Md. Dewan Ali filed the civil petition for leave to appeal.
7. Leave was granted to consider the submissions whether the learned Single Judge of the High Court Division erred in failing to hold on the basis of the evidence and materials on record that the prcemptor A had knowledge of the kabala under preemption and he consented to the sale of the case land to the purchaser preemptee on being offered to purchase the same by the seller Saleha Bibi and as a result his right of pre-emption was hit by waiver, acquiescence and estoppel.
8. We have heard Mr. Afsar Uddin Ahmed Khan, the learned Counsel for the appellant and Mr. Md. Nawab Ali. the learned Advocate-on-Record for respondent No. 1 and perused the impugned judgment of the High Court Division and other connected papers.
9. The learned Advocate for the purchascr preemptee appellant submits that the decision arrived at by both the lower appellate court and the High Court Division that the purchaser-preemptee could not prove by the evidence and materials on record that the pre-emptor was first offered to purchase the case land by the seller-pre-emptee and the purchaser preemptce purchased the case land after the prc-emptor declined to purchase the same is not tenable being incorrect. The learned Advocate further submits that the
lower appellate court and the High Court Division in revision erred in law in taking the view that the conduct of the pre-emptor in declining to purchase the case land when offered to him for sale amounted to waiver and acquiescence of his right to purchase the case land and accordingly his right of pre-emption was also hit by the principle of estoppel.
10. Careful scrutiny reveals that the evidence available on record on the point as to whether the pre-emptor had the knowledge of the sale of the case land to the purchaser-
pre-emptee is contradictory. Moreover, the purchaser-pre-emptec has failed to examine some important witnesses who, according to the purchaser preemptee, were present when the pre-emptor was offered to buy the case land and he refused to do so and consented to the sale of the same to the purchaser prc-emptee. The purchaser pre-emptec therefore could not prove that the pre-emptor was offered to buy the case land in the first place and
he not only refused to buy the same but also consented to the same being sold to and purchased by the purchaser preemptee.
11. The next question that requires careful consideration is whether the alleged conduct
of the pre-emptor refusing to purchase the case land prior to the sale of the same to the purchaser prc-emptee could be taken to have amounted to waiver, acquiescence and estoppel, even if such conduct is taken to have been well proved by the evidence on record, to extinguish the right of pre-emption of the pre-emptor.
12. In the case of Akhlasur Rahman and others Vs. Safarullah and others, reported
in 14 BLD(AD) 20, it is held relying on the case of Shi Audh Behari Singh Vs. Gajadhar Jaipura and others, (1955) ISCR 70 that the right of pre-emption can be taken to have been waived or relinquished at an earlier date than on date of actual completion of the sale under the law. This position is deduced on the concept that although the right of pre-emption becomes enforceable only when there is a sale, but the right exists antecedently to the sale inasmuch as such right is indispensable for avoiding inconvenience and disturbances arising out of introduction of a stranger into the land. The relevant passage
is as under:
“We are in respectful agreement with the principle enunciated above and hold further
that the right can be waived or relinquished at an earlier date than on date of actual completion of the sale under the law or thereafter.”
13. The judgment in the aforesaid case of Akhlasur Rahman is dated 11.1.1990. But
in a later case of Fazaruddm Vs. Maijuddin, reported in 44 DLR(AD) 62, judgment whereof is dated 6.1.1992, the right of pre-emption is held to accrue not before but after the sale of the case land. The relevant passage runs as under:
“It is true, the right of pre-emption accrues after transfer of the land, and statutory right of pre-emption cannot be taken away by mere verbal assurance of the person having such right, unless other facts and circumstances clearly make out a case of acquiescence or waiver. ‘Acquiescence’ arises when a person knowing that he has an enforceable right but neglects to enforce the same for such a long time that the other person opposing such right may fairly infer that he has waived or abandoned it. It is failure to object to certain
transaction or act. ‘Waiver’ means simply abandonment of any existing claim or right.”
14. The view taken in the aforesaid case of Fazaruddin appears to be better view. Right of pre-emption accrues on the date of registration of the sale deed.. The preemptive right of purchase of the case land accrued to the preemptor only after the case land was sold to the purchaser preemptee by its owner and not before. Preemptive right does not exist before sale and so it is not enforceable before sale. Any such right before sale is an inchoate and immature right. Hence no conduct of the pre-emptor before sale of the case land refusing to purchase the same or consenting sale thereof to other can constitute
waiver, acquiescence or estoppel demolishing his right of preemption. The bare requisite for extinction or demolition of pre-emption right lies in the accrual or existence of such right. In the instant case, the facts and circumstances proved on evidence do not establish that the conduct of the pre-emptor amounted to waiver, acquiescence or estoppel ffecting his right of pre-emption.
15. The appeal is accordingly dismissed without any order as to costs.
Source : V ADC (2008), 320