Shamsul Haque (Md) Vs Amina Khatun and others

Supreme Court

Appellate Division

(Civil)

Present:

MM Ruhul Amin J

Md. Tafazzul Islam J

Shamsul Haque (Md) ………………Appellant

 Vs

 Amina Khatun and others………..Respondents

Judgment

August 31, 2004.

The Code of Civil Procedure, 1908, (V of 1908), Order XIX, Rule 1(1), (3)

When there was no issue before the trial court nor the appellate court regarding waiver, the High Court Division was not required to give any finding in this respect in the absence of any specific averment to the contrary……………..(15)

The High Court Division was not justified in sending the case on remand to the trial court on the plea of waiver………………….(18)

Cases referred to:

Messrs Binning & Company (Bangladesh) Ltd vs. Messrs Nasirabad Properties Ltd 40 DLR (AD) 89: Shamsul Huda (Md) being dead his heirs; Hafez Md Ismail & others vs. Bangladesh and others 5 BLC (AD) 108, Vice?Chairman, EP Enemy Property Management Board, Dhaka and others vs. Shah Gulam Nabi and others 27 DLR (AD) 156; Hazari Bala Sana and another Vs Niron alias Niranjan Mandal and others 1997 BLD (AD) 294.

Lawyers involved:

Probir Neogi, Advocate instructed by Sufia Khatun, Advocate?on?Record?For the Appellant.

Ex parte?The Respondents.

Civil Appeal No. 52 of 2003.

 Judgment

MM Ruhul Amin J: This appeal by leave is directed against the judgment and order dated 9?4-­2002 passed by a Single Bench of the High Court Division in Civil Revision No. 4959 of 1999 making the Rule absolute.

 2. Short facts are that the pre?emptor filed Miscellaneous Case No. 180 of 1982 in the 2nd Court of Assistant Judge, Rangpur for pre?emption of the case land stating, inter alia, that the predecessor?in? interest of opposite party Nos. 2 and 3 transferred the case land by a kabala dated 24?3­1-980 (registered on 26?7?1982) at a consideration of Taka 4,000 to pre?emptee respondent Nos.1 and 2 without serving any notice upon the re?emptor who is a co?sharer by purchase of the case land. The pre­-emptees are strangers to the land. The pre?emptor came to know of the said transfer for the first time on 10?9?1982 and after obtaining the certified copy of the kabala under pre?emption on 17?10?1982 he had the definite knowledge about the transfer. The case land is indispensably required for the pre?emptor’s own use and occupation. He has no land beyond the statutory limit and, as such, he is legally entitled to get the case land by way of pre?emption. The pre?emptor has filed the case depositing the consideration money of the sale deed along, with the statutory compensation.

 3. The pre?emptee respondent Nos. 1 and 2 contested the case by filing a joint written objection denying the material allegations made in the application for pre?emption and further contended, inter alia, that the case was not maintainable in its present form and frame, bad for defect of parties and barred by limitation. The substantive case of the pre?emptees, in short, is that the case property was originally a ditch and they filled it by earth and constructed dwelling hut thereon spending a sum of Taka 6,000 and also planted different trees thereon and spent Taka 7,000 for the purpose. After their purchase they got their names mutated and have been paying rents to the government. The pre?emptor is not a co?sharer and, as such, the present case is not maintainable and liable to be dismissed.

 4. The trial Court allowed the case and on appeal the same was affirmed. The pre?emptee moved the High Court Division in the above mentioned civil revision and the High Court Division made the Rule absolute and sent back the case on remand to the trial Court with direction to frame an issue to the effect whether the pre?emptor has acquiescence in the purchase or in the subsequent retention of the case land by the pre-emptee?purchasers and also to give opportunity to the parties to adduce fresh evidence in support of their respective case if they wish to do so.

 5. Being aggrieved the pre?emptor preferred the present Civil Petition for Leave to Appeal No. 1168 of 2002.

 6. Leave was granted to consider the Sub­mission that there being no case of acquiescence and waiver in the written objection filed by the pre­-emptees the High Court Division was wrong in making the Rule absolute and sending back the case on remand to the trial Court directing to frame an issue on the point of acquiescence and affording the parties to adduce fresh evidence.

 7. We have heard Mr. Probir Neogi, the learned Counsel for the appellant and pet?used the judgment of the High Court Division and other connected papers.

 8. It is not disputed that the pre?emptor is a co?sharer by purchase in the case land and the pre-­emptee is a stranger purchaser and the pre?emption case is well within time as the kabala under the pre-­emption was registered on 26?7?1982 according to the provisions of section 60 of the Registration Act and the pre?emption case filed on 23?11? 1982. The case is also not bad for defect of parties.

 9. Mr. Neogi mainly submitted that there being no case of acquiescence and waiver in the written objection filed by the pre?emptees against the application for pre?emption, the High Court Division was wrong in making out a third case that the pre­emptor waived his right of pre?emption and thereby making the Rule absolute and sending back the case on remand to the trial Court with direction to frame an issue on the point of acquiescence and affording opportunity to the parties to adduce fresh evidence.

 10. It is needless to mention here that the date of accrual of right of pre?emption is not the date of execution or presentation of the kabala but the date of registration under section 60 of the Registration Act and accordingly, the case is well within time.

 11. He further argued that the plea of waiver must be taken in the pleading and proved by evidence at the trial. In support of his contention the learned Advocate placed before us the case of Messrs Binning & Company (Bangladesh) Ltd. vs. Messrs Nasirabad Properties Ltd. reported in 40 DLR (AD) 89. In that case it was observed that the plea of waiver has therefore to be taken at the earliest opportunity, that is, in the pleading, and evidence must be given at the trial to establish waiver. The plea of waiver must be taken in his pleading by the tenant and at the trial where it should be raised as an issue. In the instant case, as already noticed, the plea of waiver was never raised at any stage by the pre?emptees and not even before the High Court Division but the High Court Division itself made out a third case of waiver for which the High Court Division was not justified.

 12. Regarding making out a third case this Division in the case of shamsul Huda (Md) being dead his heirs; Hafez Md. Ismail & others Vs Bangladesh and others reported in 5 BLC (AD) 108 held that “Neither from the averments made in the plaint that the plaintiff claimed the property in suit as a vested property nor the learned Subordinate Judge held that the property Was a vested property but in spite of absence of such averments and findings the learned Judges of the High Court Division have made out a third case in holding that the property is a vested property which is wrong”.

 13. In the instant case as we have earlier pointed out that neither in the written objection nor before the appellate Court of the High Court Division, the pre?emptee raised the plea of waiver.

 14. We have gone through the written objection filed by the pre?emptees before the trial Court and the points taken upon for consideration by the trial Court and the appellate Court. It is, clear that no case of acquiescence and waiver was made out either in written objection before the trial Court or before the court of appeal below. From the judgment of the High Court Division it appears that the High Court Division was aware of this position as the High Court Division in the impugned judgment said “Neither party led any evidence to prove or disprove acquiescence on the part of the pre?emptor for the retention of the case land by the pre?emptees.”

 15. It is needless to mention here that in terms of rule 1(1) and rule 1(3) of Order XIV CPC there was, no issue before the trial Court nor the appellate Court regarding waiver by the pre?emptor and the High Court Division also was not required to give any finding in this respect in the absence of any specific averment to the contrary.

 16. Mr. Neogi next submitted that superior court would be reluctant to send back a case on remand if on the materials on record the case maybe disposed of by it. In our view there is substance in this submission of Mr. Neogi. In the case of Vice?Chairman, EP Enemy Property Management Board Dhaka and others vs. Shah Gulam Nabi and others reported in 27 DLR (AD) 156 it was held that the Appellate Division of the Supreme Court is reluctant to remand a case to allow a party, negligent in earlier proceeding in diligently bringing all evidence on record, an indulgence to fill up the lacuna in evidence.

 17. He lastly, submitted that the trial Court as well as the court of appeal below concurrently held that the pre?emptor is a co?sharer by purchase and the pre?emptees are stranger purchasers and the preemption case was well within time and the ease was not bad for defect of party. By sending the case ­on remand by making out a third case of waiver, the High Court Division practically set aside the concurrently findings of two Courts below which was not proper. In revisional jurisdiction the High Court Division cannot disturb the findings of fact arrived at by the final Court of fact more so when the same is concurrent finding of fact. In the case of Hazari Bala Sana and another vs. Iron alias Niranjan Mandal and others reported in 1997 BLD (AD) 294 it was held that it is a settled principle that the findings of fact, whether concurrent or not, arrived at by the lower appellate Court, which is the final court of fact, is binding on the High Court Division, as a revisional court except in certain well defined exceptional circumstances, such as non-consideration or misreading of the material evidence affecting the merit of the case. In the instant case it was not argued even that there was non?consideration or misreading of the material evidence affecting the merit of the case.

18. In view of our above discussion we hold that the High Court Division was not justified in allowing the revisional application on the plea of waiver and sending the case back on remand to the trial Court and as a result there has been miscarriage of circumstances and this requires interference by us.

The appeal is accordingly, allowed without any order as to cost.

Ed.

57 DLR (AD) (2005) 23.

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