Azizur Rahman Vs. Bhayetullah & anothers, 45 DLR (AD) (1993) 120

Case No: Civil Appeal No. 129 of 1983

Judge: ATM Afzal ,

Court: Appellate Division ,,

Citation: 45 DLR (AD) (1993) 120

Case Year: 1993

Appellant: Azizur Rahman

Respondent: Bhayetullah and anothers

Subject: Procedural Law,

Delivery Date: 1986-10-11

 
Supreme Court
Appellate Division
(Civil)
 
Present:
F.K.M.A. Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
& A.T.M Afzal J
 
Azizur Rahman
..........................Appellant
Vs.
Bhayetullah & anothers
….....................Respondents
 
Judgment
November 11, 1986.
 
The Bengal Tenancy Act, 1885 (VIII of 1885)
Section 26F
The Bangladesh Land Holding Limitation Order, 1972 (P.O. No. 98 of 1972)
Article 3
The State Acquisition and Tenancy Act, 1950 (XXVIII of 1951)
Sections 90 and 96
Practice and procedure
Although the application for pre-emption was filed in 1964 the trial court rightly held on the basis of reported cases that the proceeding was to be decided under the Bengal Tenancy Act as the cause of action arose in the case before part V of the State Acquisition and Tenancy Act came into force. So, limitation is available to the petitioner under the BT ACT. Thus the case was filed well-within the period of limitation…….............(6)
The question of eligibility for filing the case of pre-emption was raised on the allegation of petitioner already holding 100 Bigha land. The order of the Munsif was passed in 1967 when there was no law limiting land holding 100 Bighas. So, this objection is not sustainable. The point not raised earlier is not permitted to raise an issue before the appellate division for the first time. The appeal is without substance mad hence dismissed.
 
Case referred to-
52 C.W.N. 64.
 
Lawyers Involved:
Mohammad Ayub, Advocate-on-Record. - For the Appellants.
Not represented- the Respondents.
 
Civil Appeal No. 129 of 1983
 
JUDGMENT
 
A.T.M. Afzal J.
 
This appeal by the pre-emptee, (since deceased and substituted by his heirs) following leave, arises out of a proceeding under Section 26F of the Bengal Tenancy Act and is direct­ed against judgment and order dated 31st July 1980 passed by a Single Judge of the High Court Division in revision restoring those of the trial court allowing pre-emption. .
 
2. The disputed transfer took place by a kabala dated 24 January 1961. Respondents (husband and wife) filed the application for pre-emption on 24 Jan­uary, 1974 being Misc. Case No. 18 of 1964 in the First Court of Munsif, Lakshmipur. Amongst others the application was resisted by the pre-emptee on the ground of limitation. The learned Munsif by judg­ment and order dated 14.9.67 rejected all the objec­tions of the pre-emptee and allowed pre-emption. On appeal, however, the Subordinate Judge, Noakhali re­versed the decision on the ground that the application for pre-emption was bad for defect of parties in that one of the co-sharers was not made a party in the proceeding.
 
3. Pre-emptor-respondent then went in revision before the High Court Division. The learned Judge by the impugned judgment and order held that the finding as to defect of parties was not sustainable and accordingly set aside the decision of the Subordinate Judge and restored that of the Munsif.
 
4. Leave was granted to consider whether the issue as to limitation was decided correctly by the court below and further whether the President's Order No. 98 of 1972 (Bangladesh Land Holding Limita­tion Order) which puts a ceiling as to ownership to 100 Bighas of land stood as a bar in allowing pre­emption.
 
5. As regards limitation the learned Munsif found that since the pre-emptors were not served with notice under section 26C the period of limita­tion would be three years from the date of knowledge about the transfer. It is well-settled that Article 181 of the Limitation Act applies to an application under section 26F by a co-sharer tenant who has not been served with notice under section 26C and his appli­cation would be in time if made within three years of the sale (52 CWN 64). Although the learned Munsif mistakenly held that three years limitation would run from the date of knowledge about the transfer, the application having admittedly been filed within three years from the date of sale the same was not time-barred and the finding made in that behalf was cor­rect. It appears from the judgment of the Subordinate Judge that the pre-emptee did not challenge, advised­ly it seems, the said finding as to limitation.
 
6. As regards the other contention that the pre-emptor having admitted that he had already got 100 kanis of land, the High Court Division-ought not to have allowed pre-emption in view of the 100 bighas ceiling put under the Bangladesh Land Holding Limi­tation Order (P.O. 98 of 1972), it may be pointed out that the right of pre-emption accrued a decade be­fore the said P.O. 98 of 1972 came into being. Fur­ther the prayer for pre-emption was allowed by the trial court in 1967 when no question of land holding limitation up to 100 bighas was in existence. Al­though the application for pre-emption was filed in 1964 the trial court rightly held on the basis of re­ported cases that the proceeding was to be decided un­der the Bengal Tenancy Act as the cause of action arose in the case before part V of the State Acquisi­tion and Tenancy Act came into force. So limitation as to land holding as provided in the State Acquisi­tion and Tenancy Act is also not attracted. The learned Advocate for the appellant, it seems, having failed to find any fault with the impugned judgment of the High Court Division has taken up this point as to bar in view of. P.O. 98 of 1972 as a last resort. The appellant, however, did not even appear in the High Court Division to oppose the rule by raising this or any other ground. Be that as it may, it will not be correct to say that the High Court Division allowed the pre-emption in 1980 for the first time; rather the impugned order shows that the order of the Munsif was restored upon setting aside that of the Subordinate Judge. The Munsif s order was passed, as already noticed, in 1967 when there was no law li­miting land holding to 100 bighas.
 
7. Then again the appellant is trying to take advantage of a statement made by the pre-emptor in 1967 in course of his deposition wherein he stated that he got about 100 Kanis of land. Whether the pre-emptor was owning 100 bighas of land in 1980 when the High Court Division passed the impugned order is not known as there was ho enquiry in that behalf. Even if it is held that pre-emption was al­lowed in 1980 by the impugned judgment of the High Court Division it cannot be said that there was any violation of the provision of P.O. 98 of 1972 in the absence of any objection raised by the pre-emptee in that behalf. The point could, be raised by raising an issue of fact which the pre-emptee never did at the revision stage and upon general principle he is not permitted to raise any issue of fact for the first time before this Division.
 
In view of the discussion above, the appeal is found to be without substance and accordingly dis­missed without any order as to cost.
 
Ed.