Abdul Malek (Md) and another Vs. Sanowar Hossain and others, 59 DLR (2007) 124

Case No: Civil Revision No. 3107 of 2003

Judge: Moyeenul Islam Chowdhury,

Court: Appellate Division ,,

Advocate: Mr. AQM Safiullah,Mr. Garib Newaz,,

Citation: 59 DLR (2007) 124

Appellant: Abdul Malek (Md) and another

Respondent: Sanowar Hossain and others

Subject: Pre-emption,Land Law,

Delivery Date: 2007-1-21

 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Moyeenul Islam Chowdhury J
 
Abdul Malek (Md) and another
.......................Petitioners
Vs.
Sanowar Hossain and others
……………..Opposite Parties
 
Judgment
January 21, 2007
 
Non-Agricultural Tenancy Act (XXIII of 1949)
Section 24 (3)
It transpires the petitioners were negligent in getting any inquiry held as per proviso to subsection (3) of section 24 of Non Agricultural Tenancy Act. They appear to be guilty of laches. They did not prefer any cross objection in the appeal about non awarding of improvement costs to the opposite party. The conduct of the petitioners disentitled them to improvement costs. ….. (20)
 
Cases Referred To-
Jadav Chandra Mali vs. Abdul Khaleque 27 DLR (AD) 114; Hosne Ara Begum & others vs. Anowara Begum 37 DLR 154; SM Basiruddin vs. Zahurul Islam Chowdhury 35 DLR (AD) 230; Alfazuddin Ahmed vs. Abdur Rahman 8 MLR (AD) 153 = 55 DLR (AD) 108; Rokeya Begum vs. Md Nurul Absar 9 BLC (AD) 169; Syed Sad Ali vs. Bidhan Chandra Dev 2000 BLD 343 = 52 DLR 609.
 
Lawyers involved:
Garib Newaz, Advocate—For the Petitioners.
AQM Safiullah with Md Ali Jinnah, Advocates—For the Opposite Party No. 1.
 
Civil Revision No. 3107 of 2003.
 
JUDGMENT
 
Moyeenul Islam Chowdhury J.
 
This Rule was issued calling upon the opposite party No. 1 to show cause as to why the impugned judgment and order dated 29-5-2003 passed by the Joint District Judge, 1st Court, Tangail in Miscel­laneous Appeal No. 56 of 2002 reversing those dated 29-5-2002 passed by the Court of Senior Assistant Judge, Tangail in Miscellaneous (pre­emption) Case No. 93 of 1999 dismissing the case should not be set aside.
 
2. The Rule is opposed on behalf of the opposite party No. 1
 
3. The opposite party No. 1 (pre-emptor) filed pre-emption Miscellaneous Case No. 93 of 1999 against the petitioners and others under section 96 of the State Acquisition and Tenancy Act, 1950 (subsequently converted under section 24 of the Non-Agricultural Tenancy Act, (1949) in the Court of Senior Assistant Judge, Tangail. His case, in short, is that the old plot No. 532 and the present plot No. 562 measuring an area of 0.35 acres apper­taining to the old SA Khatian No. 233 and the new Khatian No. 113 of Mouza Shontesh, Police Station and District Tangail belonged to one Kangal Chandra Denajir. However, after the death of Kangal Chandra Denajir his only son Roma Charan Dey became the owner-in-possession of the case plot by way of inheritance. Subsequently, on 28-5­1956 Roma Charan Dey transferred the said plot in favour of one Girish Chandra Sarkar. On 4-4-1985 Girish Chandra Sarkar sold 0.20 acres from the eastern side of the case plot to his son Gopal Chandra Dey. On 30-12-1990 Girish Chandra Sarkar transferred the remaining 0.15 acres of the case plot to one Md. Joshon Ali and Monowara Begum. On 30-6-1991 Gopal Chandra Dey sold the said 0.20 acres to one Md. Abdul Hye and Noor Jahan Begum. On 9-6-1993 Abdul Hye and Noor Jahan Begum transferred the 0.20 acres to the pre-emptor Sanowar Hossain and, as such, the pre-emptor is a co-sharer in the case plot by way of pur­chase. The pre-emptor has been owning and posses­sing the 0.20 acres by erecting houses thereon. Be that as it may, on 20-12-1998 the opposite party Nos. 2 and 3 transferred the aforementioned 0.15 acres to the pre-emptee-petitioners behind the back and without the knowledge of the pre-emptor. The pre-emptee-petitioners are strangers to the case plot. They are not co-sharers in the land and no notice of sale was served upon the pre-emptor. The sale deed with reference to the land under pre-emption was entered in the Volume concerned on 12-7-1999 and the pre-emption Miscellaneous case was filed on 18-10-1991 within the statutory period of limitation. That being so the pre-emptor opposite party No. 1 is entitled to get the case land by way of pre-emption.
 
4. The case of the pre-emptee petitioners, in short, is that they have been possessing the land under pre-emption by way of a bainapatra dated 6­12-1995 within the knowledge of the pre-emptor. The pre- emptees erected a structure on the land and they spent a sum of Taka 2,50,000 for improvementof the same. At a subsequent stage, the sale deed was registered on 12-7-1999. The pre-emptor oppo­site party No.1 earlier filed pre-emption Miscel­laneous Case No. 32 of 1999 in the Civil Court concerned, but that was dismissed for not taking any steps. The case of the pre-emptor is bad for defect of parties. The pre-emptor is not a co sharer in the land under pre-emption. As such, the case of the pre-emptor should be thrown out.
 
5. After hearing the parties and on appraisal of the evidence and materials on record and in the facts and circumstance of the case the trial Court dismissed the case on the observation, inter alia, that the pre-emptor opposite party No. 1 is not a co-sharer in the land under pre-emption.
 
6. On appeal, the lower Appellate Court took a contrary view and found that the pre-emptor opposite party No. 1 is a co-sharer in the land and accordingly, the court of Appeal below allowed the appeal and the pre-emption Miscellaneous case by reversing the judgment and order of the Court of first instance.
 
7. The only point for determination in this Rule is, whether the court of Appeal below com­mitted any error of law resulting in an error in the decision occasioning failure of justice.
 
8. At the outset Garib Nawar, the learned Advocate appearing for the pre-emptee petitioners, submits that it is an admitted fact that the pre­emption Miscellaneous case was initially filed under section 96 of the State Acquisition and Tenancy Act 1950, but subsequently, having regard to the character of the land under pre-emption it was converted into one under section 24 of the Non Agricultural Tenancy Act 1949 and this conversion of the case from one under section 96 of the State Acquisition and Tenancy Act into one under section 24 of the Non Agricultural Tenancy Act is not warranted by law and, in this view of the matter, both the trial Court and the appellate Court below committed an error of law resulting in an error in the decision occasioning a failure of justice.
 
9. On the other hand, Mr. AQM Safiullah, the learned Advocate appearing for the opposite party No. 1, submits that the conversion of the case into one under section 24 of the Non-Agricultural Tenancy Act from one under section 96 of the State Acquisition and Tenancy Act is very much tenable in the eye of law and, in support of his submission, he has adverted to the case of Jadav Chandra Mali being dead his heirs Kuswnbha Mali and others Appellants vs Abdul Khaleque and others Respondents reported in 27 DLR (AD) 114.
 
10.There is no gainsaying the fact that the pre emption Miscellaneous case was initially filed under section 96 of the Stale Acquisition and Tenancy Act and subsequently, in view of the character of the land under pre-emption, the case was converted into one under section 24 of the Non Agricultural Tenancy Act. It appears that the conversion was made by the learned trial judge relying on the said decision reported in 27 DLR (AD) 114 (supra) Anyway, in the said decision, it has been held in paragraph 5.
 
"5. The pre-emptor wanted to exercise his right of pre-emption in respect of the disputed land on the ground that he was a co-sharer tenant of the tenancy to which the said land appertained. The application was described as one coming under section 96 of the State Acquisition and Tenancy Act Subsequently, when it was realised that having regard to the nature of the disputed land the relief prayed for could be granted under section 24 of the Non Agricultural Tenancy Act, an application for amendment to that effect in the cause title of the application with consequential changes was made but the High Court rejected the prayer on the ground, inter alia, that the change sought to be made was not a mere change of one kind of pre-emption to another, but it was substitution of a new case altogether. Since a Co-sharer tenant of non-agricultural land is entitled to apply for pre emption under section 24 of the Non-Agricultural Tenancy Act, it does not appear how the nature and character of the application can be said to be altered by substitution of a new case altogether by reason of the amendment prayed for. Whatever changes were sought to be made were changes in form and not in substance. In the circum­stances we find that the learned judges were not justified in rejecting the prayer for amendment of the application upon the view they took. Moreover, since the relief prayed for could be given by the court under section 24 of the Non-Agricultural Tenancy Act, even if that section had not been specifically mentioned in the application it was not necessary either to apply for amendment for a change of description in the cause title.”
 
11. What I am driving at boils down to this, that the conversion of the pre-emption Miscel­laneous case into one under section 24 of the Non-Agricultural Tenancy Act from one under section 96 of the State Acquisition and Tenancy Act by the trial Court was in form and not in substance. In such view of the matter, it cannot be said by any stretch of imagination that the learned trial judge committed an illegality in converting the pre­emption case into one under section 24 of the Non Agricultural Tenancy Act. As I see it, the lower appellate Court did not commit any error of law in upholding the conversion. Consequently, the above submission of Mr. Garib Newaz stands negatived.
 
12. Mr. Garib Newaz further submits that the pre emption case is bad for defect of parties in view of the fact that it is in the cross-examination of the PW 1 Md. Sanowar Hossain that he did not implead all the recorded tenants in the pre-emption case, and this being the position, the court of Appeal below ought to have dismissed the pre-emption case.
 
13. On the contrary, Mr. AQM Safiullah submits that the law does not contemplate implying of all of the recorded tenants in the pre-emption case under the provisions of section 24 of the Non-Agricultural Tenancy Act and as per section 24 of the said Act, co-sharers need not be impleaded in an application for pre-emption thereunder. In support of this submission, he has drawn my attention to the decision in the case of Hosne Ara Begum & others- Petitioners vs. Mosammat Anowara Begum & others- Opposite Parties reported in 37 DLR 154.
 
14. In order to resolve the bone of contention about the impleading or otherwise of the recorded tenants of the Khatian, it will be profitable to recapitulate the relevant provisions of section 24 of the Non Agricultural Tenancy Act, Sub-section (1) of section 24 of the said Act contemplates that if portion or share of the non agricultural land held by a non agricultural tenant is transferred one or more co-sharer tenants of such land may, within four months of the service of notice issued under section 23, and in case no notice had been issued or served, then within four months from the date of knowledge of such transfer, apply to the court for such portion or share to be transferred to himself or to themselves as the case may be, So, it is ex facie clear that one or more co-sharer tenants of the land in question may make an application for pre-emption. Of course, sub-section (4) of section 24 of the Non Agricultural Tenancy Act provides that when an application has been made by one or more co-sharer tenants under sub-section (1) any of the remaining co-sharer tenants including the transferee if one of them may, within the period of four months referred to in the said sub-section or within one month of the service of notice of the application, whichever is later, apply to join in the said application and any co-sharer tenant who has not applied under sub-section (1) or has not applied to join under this sub-section, shall not have any further right to purchase under this section.
 
15. In the decision reported in 37 DLR 154, it has been categorically held that there is no provision under section 24 of the Non Agricultural Tenancy Act, unlike section 96 of the State Acquisition and Tenancy Act to make other co-sharer tenants of the holding party to the proceeding. It has been further held under section 24 of the Non Agricultural Tenancy Act, that apart from the transferee, any one else need not be impleaded in the application for pre-emption.
 
16. The upshot of the above discussion is that in an application for pre-emption under section 24 of the Non Agricultural Tenancy Act the pre emptor need not implead any co-sharer tenant in the application for pre-emption, apart from the transferee. This being the position of law, I must hold that the pre­emption case is not bad for defect of parties.
 
17. The next submission of Mr. Garib Newaz is, that it is the definite case of the pre-emption petitioners that they incurred a sum of Taka 2,50,000 on the score of erection of a structure on the case land and other development works but the trial Court did not utter a single word about the im­provement costs and the appellate Court below found that they could not substantiate their claim of expenditure of the sum of Taka 2,50,000 by adducing credible evidence and, as such, as the lower appellate Court did not award any improve­ment costs to the pre-emptor opposite party No. 1 but the no awarding of the improvement costs on the ground of admitted erection of the structure on the case land by the pre-emptee petitioners is an error of law resulting in an error in the decision occasioning a failure of justice. Mr. Garib Newaz next submits that as per proviso to sub-section (3) of section 24 of the Non Agricultural Tenancy Act it is the duty of the court to make an inquiry into the disputed amount of Taka 2,50,000 incurred by the petitioners in improving the case land, but, curiously enough, no such inquiry was made either by the trial Court or by the appellate Court below and the not holding of any inquiry into the said disputed amount is also an error of law resulting in an error in the decision occasioning a failure of justice.
 
18. Mr. AQM Safiullah repels the above submissions of Mr. Garib Newaz by saying that the petitioners did not furnish any break-up of the money spent on various counts in proving the case land, though he has admitted that a sweeping statement was made in the Written Objection and the evidence of the PW 1 Abdul Malek that they spent Taka 2,50,000 towards erection of the structure and improving the land in question and this omnibus statement about the alleged expenditure of Taka 2,50,000 will not be of any avail to the pre-emptee. It is also the submission of Mr. AQM Safiullah that although a duty is cast upon the court to make an inquiry into the disputed amount of Taka 2,50,000 but the petitioners did not perform their obligation to draw the attention of the court to the proviso of sub-section (3) of section 24 of the Non Agricultural Tenancy Act and it is manifestly clear from their conduct that they committed laches in the matter of getting any inquiry held. Mr. AQM Safiullah further submits that the judgment of the court of first instance is silent about the alleged improvement costs made by the petitioners in the case land but a reference to the judgment of the court of Appeal below unerringly shows that it did not rely upon the claim of Taka 2,50,000 as improvement costs in the absence of any satisfactory, cogent and reliable evidence and this being the scenario the court of appeal below rightly rejected the improvement costs. On this point Mr. AQM Safiullah next submits that admittedly the petitioners did not prefer any cross objection in the appeal against non awarding of any improvement costs to the opposite party No. 1 and this amply demonstrates that the petitioners waived their right of getting improvement costs.
 
19. It is true that the pre-emptee petitioners made a sweeping statement in their pleading that they spent a sum of Taka 2,50,000 in erecting the structure on the case land and improving the same in various ways. Besides, the OPW 1 Abdul Malek deposed about the improvement costs to the tune of Taka 2,50,000 in an omnibus manner. There is no denying the fact that the petitioners in their pleading and the OPW 1 Abdul Malek in his testimony did not specify the various heads on which the sum of Taka 2,50,000 was allegedly spent towards improving the case land. In this context, Mr. Garib Newaz concedes that the statement about the alleged expenditure to the tune of Taka 2,50,000 is omnibus in nature. However, it does not stand to reason as to why the petitioners failed to parti­cularise the expenditure on various heads in improving the case land including the raising of the structure thereon.
 
20. It is correct to say that a duty is cast upon the Court to make an inquiry into the disputed amount of Taka 2,50,000 incurred by the petitioners in improving the case land. Both the courts below did not make any inquiry in that regard. However, the petitioners did not draw the attention of the courts below to this aspect of the matter. It transpires that the petitioners were negligent in getting any inquiry held as per proviso to sub-section (3) of section 24 of Non Agricultural Tenancy Act, They appear to be guilty of laches. What is more, admittedly, they did not prefer any cross objection in the appeal about non awarding of any improvement costs to the opposite party No.1. The conduct of the petitioners, I must say, has disentitled them to the improvement costs of the case land. To my mind, the petitioners slept over the matter and raised the question of non holding of an inquiry into the disputed amount of Taka 2,50,000 for the first time before this Court. Further- more, the OPW 2 Md Helal Uddin Khan, the OPW 3 Jalu Mondal and the OPW 4 Ranjit Kumar Dey appear to be quite in the dark about the actual improvement costs of the case land. It is admitted that the petitioners raised the structure on the case land, but the fact remains that because of their laches and waiver of their right of getting the actual improvement costs of the case land, they cannot invoke the aid of the proviso to sub­section (3) of section 24 of the Non Agricultural Tenancy Act at this stage.
 
21. It is the definite assertion on the side of the pre-emptee petitioners that the pre emptor opposite party No. 1 is not a co-sharer in the land transferred and this being so, the pre-emptor cannot claim pre­emption of the land under section 24 of the Non Agricultural Tenancy Act. It has further been asserted on the side of the pre-emptees that their possession in the case land out of the case plot is separate and distinct from that of the pre emptor and regard being had to the exclusive possession of the pre-emptees in the case land, the pre emptor cannot maintain the application for pre emption under section 24 of the Non Agricultural Tenancy Act, In support of this assertion, Mr. Garib Newaz has referred to the decision in the case of SM Basiruddin- Appellant vs. Zahurul Islam Chowdhury and another- Respondents reported in 35 DLR (AD) 230.
 
22. In contradistinction to the assertions of Mr. Garib Newaz, Mr. AQM Safiullah has drawn my attention to the decision in the case of Alfaz Uddin Ahmed- Appellant vs Abdur Rahman and others- Respondents reported in 8 MLR (AD) 153 in support of his contention that both the pre-emptor and the pre-emptees are co-sharers in the case land in that no ceasing of co-sharerships in the land has been effected either by partition, by metes and bounds pursuant to a decree in a partition suit or by separate jama and opening of a new Khatian in the names of either party and, in such view of the matter, it is crystal clear that the co-sharership of the pre-emptor in the case land has ceased and from this point of view, the reference to the decisions in 35 DLR (AD) 230 does not help the pre-emption in any way.
 
23. In the decision reported 35 DLR (AD) 230 it has been held in paragraph 24-
 
"24. The word holding means a parcel or parcels of land or an undivided share thereof held by a raiyat or an under raiyat and forming the subject of a separate tenancy Non agri­cultural land has not been used in the context of holding as defined in section 2(3) of the Act. According to this definition, holding means a parcel or parcels of land or an undivided share thereof. Different sub-sections of section 24 sufficiently indicate that the Legislature did not use the expression non agricultural land carrying the same meaning as the expression holding defined in the Bengal Tenancy Act and the State Acquisition and Tenancy Act. The expression non agricultural land may represent the entire land comprised in tenancy or it may form a part as owned and possessed by a tenant or tenant on partition.”
 
24. The expression non agricultural land occurring in section 24(1) of the Non Agricultural Tenancy Act is significant. The Legislature cautiously did not use the expression holding therein. It has been used in section 26F of the Bengal Tenancy Act and section 96 of the State Acquisition and Tenancy Act. Undeniably, the pre-emptees have been in possession of the land under preemption by raising a structure thereon.
 
25. Now the crux of the question is, as to whether the pre-emptor is a co-sharer tenant in the land under pre-emption. This question needs to be answered.

26. In the self same decision reported in 35 DLR (AD) 230 it has been further held in paragraph 32-
 
"32. The nature of non-agricultural land by non-agricultural tenant as shown in the defini­tions, and use of the expression non agricultural land in sub-section (1) of section 24 instead of using the expression non agricultural tenancy, sufficiently indicates why the Legislature used the expression non agricultural land in section 24. It obviously shows that the purpose is to keep the number of pre-emptors limited to the co-sharers in the land, so that the land on pre­emption may not become unfit for use. For clarification of the point, let me cite an illustra­tion. A non agricultural tenancy holding on partition is being owned and possessed sepa­rately by, say three co-sharers and the co-sharer owners thereof by constructing their respective houses are living in the houses which have been registered as separate holdings under the Muni­cipal Act, but jama of the tenancy remaining undivided consequently, their liability to pay rent to the immediate landlord also remains joint. There is nothing common amongst the co-sharer tenants excepting their joint liability in the matter of payment of rent, and they ceased to be co-sharers for all practical purposes, Now, if a portion or share of the land held on partition, is transferred to a stranger, and pre emption is made open to all the co-sharers in the tenancy, namely, if all owners of the three holdings are allowed pre-emption, the result may not be at all enviable, because, as a result of distribution of the land amongst all the co-tenants of the tenancy, there is the possi­bility that on distribution the parcels of land become unfit for use. To avoid this conse­quence it would not be unreasonable to think that the legislature consciously used the expres­sion co-sharer in the land instead of using the expression co-sharer in the tenancy. That the Legislature used the expression co-sharer in the land in sub-section (1) of section 24 consci­ously becomes also clear from the scheme of the Act. That Non-Agricultural Tenancy Act has recognised non-agricultural land as an entity or unit separate from non agricultural tenancy because both the expressions have been used in different sections to suit the purpose of the legislation".
 
27. In the decision in the case of Rokeya Begum Appellant vs. Md Nurul Absar and others Respondents reported in 9 BLC (AD) 169, their Lordships of the Appellate Division have held in paragraph 23 that since there is no legal separation of Jama or holding as per provision of section 117(c) and the first proviso thereto of the State Acquisition and Tenancy Act there is no ceasing of co-sharership either of the holding or of the land. In a last ditch attempt, Mr. Garib Newaz reiterates that as the pre-emptees are in exclusive possession and enjoyment of the land under pre emption, the pre­emption cannot be construed as a co-sharer tenant therein and, in this view of the matter, the pre­emption case fails. In this connection, a reference has been made to the decision in the case of Syed Sad Ali ........Petitioner vs. Bidhan Chandra Dev and others ......Opposite Parties reported in 2000 BLD 343.
 
28. But Mr. AQM Safiullah reiterates by relying on the decision reported in 8 MLR (AD) 153 that the pre-emptor is a co-sharer in the land in question to all intents and purposes.
 
29. In the decision reported in 2000 BLD 343 referred to by Mr. Garib Newaz, it has been held in no uncertain terms in paragraph 6 that the expression non agricultural land means a piece of land in joint possession and enjoyment without partition which may form the tenancy or a portion of tenancy. This interpretation will not throw the land open to the unlimited number of persons but to persons who are co-sharer tenants under the same landlord in respect of undivided land, though such co-sharer tenants may be co-sharer tenants of the tenancy.
 
30. In the decision reported in 8 MLR (AD) 153 the ratio decidendi that has been enunciated is that co-sharership in a tenancy of non agricultural land ceases through two different ways that is to say, one is partition of land and the other is separation of tenancy by splitting up of the jama and opening of a new Khatian, Our Appellate Division has empha­sised the two modes of ceasing of co-sharership in a tenancy of non agricultural land as envisaged by section 24 of the Non Agricultural Tenancy Act.
 
31. In the present case before us, it is admitted that the pre-emptee petitioners are strangers in the case plot. It is also admitted that the case plot has not been partitioned by metes and bounds pursuant to any decree in a partition suit. As already obser­ved, the pre-emptees have been in exclusive possession of the land under pre-emption. But this exclusive possession is not upon partition by metes and bounds pursuant to any decree in a partition suit. Needless to say it is not the case of either party that the jama has been separated and a new khatian has been opened. So, the two modes of ceasing of co-shareship in tenancy of non-agricultural land as articulated by our Appellate Division in the decision reported in 8 MLR (AD) 153 do not appear to be applicable to the instant case. Against this back­drop, it is difficult for me to accept the argument of Mr. Garib Newaz that the pre-emptor opposite party No. 1 is not a co-sharer in the land transferred as contemplated by sub-section (1) of section 24 of the Non-Agricultural Tenancy Act.
 
32. From the foregoing discussions and in view of the materials on record and in the facts and circumstances of the case, I am of the opinion that the lower Appellate Court did not commit any error of law resulting in an error in the decision occasioning a failure of justice. Consequently, the Rule is liable to be discharged.
 
33. Accordingly, the Rule is discharged with­out any order as to costs. The impugned Judgment and order passed by the Court of Appeal below is affirmed.
 
Let the lower Court records along with a copy of this Judgment be sent down at once.
 
Ed.