Case No: First Miscellaneous Appeal No. 158 of 1995
Judge: Gour Gopal Saha,
Court: High Court Division,,
Advocate: Redwanul Bari,MA Jalil,,
Citation: 53 DLR (2001) 193
Case Year: 2001
Appellant: Captain (Md) Lutfar Rahman
Respondent: Md. Abu Taher and others
Subject: Pre-emption,Land Law,Property Law,
Delivery Date: 2000-10-31
High Court Division
(Civil Miscellaneous Jurisdiction)
Gour Gopal Saha, J.
Sikder Maqbul Huq, J.
Captain (Md) Lutfar Rahman
Md. Abu Taher and others
October 31, 2000.
Non-Agricultural Tenancy Act (XXIII of 1949)
Sale of a property takes effect from the date of the execution of the sale deed and as such any subsequent agreement for re-conveyance of the property cannot defeat the right of pre-emption.
Cases Referred To-
Abul Hossain and other Vs. Md. Masim Ali and others, 19 DLR 677; Md. Sukur Ali Vs. Suresh Chandra Barmon and others, 4 BLD (AD) 219; Khorshed Ali and another Vs. Aftauddin and others, 47 DLR 607 & Shafi Khan Vs. Mannujan Hossain and others, 35 DLR (AD) 225.
Redwanul Bari with Mihir Kanti Majumder, Advocates — For the Appellant.
MA Jalil, Advocate — For the Respondents.
First Miscellaneous Appeal No. 158 of 1995.
Gour Gopal Saha J.
This appeal is directed against the judgment and order dated 25-4-1995 passed by the 2nd Court of Subordinate Judge, Chittagong disallowing pre-emption under section 24 of the Non-Agricultural Tenancy Act, 1949.
2. The Case of the pre-emptee petitioner, in short, is that the Case land belonged to Arifur Rahman, A. Barik and A. Khaleque and their names were duly recorded in the finally published RS Khatian. One Abdus Sobahan purchased the Case land and other lands from the rightful owners by registered kabala dated 10-2-1939 and owned possessed the same. Thereafter Abdus Sobhan died leaving son Abdus Samad, daughter Arora Khatun and wife Nasua Khatun to succeed him. Subsequently, Nasua Khatun died leaving opposite parties Abu Taher Abdus Samad, Arora Khatun and Sufia Khatun as her heir and heiresses. The aforesaid owners being in rightful possession of the Case Land sold 22 decimals of land to pre-emptee petitioner Abdul Latif Bhuiyan land the predecessor-in-interest or opposite parties Nos. 7-11, Abdul Latif Bhuiyan subsequently purchased the aforesaid 22 decimals of land by kabalas dated 27-7-1964 in the name of his wife Tarina Akhter Khatun. In this way the pre-emptor and opposite parties Nos.7-15 are co-sharers in the Case land and their names have been duly recorded in the relevant RS Khatian. It has been contended by the pre-emptor that by the disputed 4 kabalas dated 20-7-1991 opposite parties Nos. 4-11 sold the Case land to opposite party Nos.1-6, who are stranger purchasers, beyond the knowledge of the pre-emptor. On coming to know about the disputed sales the pre-emptor obtained the certified copy of the kabalas in question and filed the pre-emption case on making the statutory deposit, impleading all necessary parties.
3. Opposite party Nos.1-6 contested the case by filing the written objection denying all the material allegations of the pre-emption application and contended, inter alia, that the case is barred by limitation and it is bad for defect of parties. It has also been contended that the pre-emptor is not a co-sharer in the case land and as such the pre-emption case is not maintainable in law. It has been further contended that the disputed sales were not sales proper but these were conditional sales with agreement for re-conveyance of the same to the vendors on receipt of the sale money within the stipulated time. It has been also contended by the opposite parties that the case land has already been re-conveyed to opposite party Nos. 7-11 by registered Kabala dated 24-9-1992 in pursuance of the agreement dated 21-7-1991 for re-conveyance of the case land on stipulated terms and conditions and, as such, the pre-emption case is not maintainable in law. It has also been contended that before sale of the case land to opposite party Nos.1-6, it was duly offered to the pre-emptor but he refused to purchase the same as he had no fund for the purpose and consequently; he is estopped from claiming pre-emption.
4. The pre-emptor examined only one witness in support of his case while the contesting opposite parties examined 3 witnesses in support of their case.
5. The learned Sub-ordinate Judge by his impugned judgment and order dated 25-4-1995 refused pre-emption on the ground that since the land under pre-emption has already been re-conveyed to the original vendors in pursuance of the agreement for re-conveyance, the pre-emptor is not entitled to pre-emption. The learned Subordinate Judge, however, found all other points in favour of the pre-emptor petitioner.
6. Being aggrieved by the aforesaid impugned judgment and order dated 25-4-1995, the pre-emptor petitioner filed the present appeal before this Court.
7. Mr. Mihir Kanti Majumder the learned Advocate appearing for the appellant submits that having regard to the fact that the kabalas under pre-emption were executed on 20-7-1991 without containing any recital for re-conveyance and the so-called unregistered deeds of agreement for re-conveyance having not being executed on 20-7-1991 to be contemporaneous documents but subsequent thereto, the learned Subordinate Judge was manifestly wrong in refusing pre-emption on the basis of the so-called agreements for re-conveyance subsequently created defeating the pre-emptor’s right of pre-emption. The learned Advocate further submits that in view of the proviso to section 58 of the Transfer, of Property Act providing that no transaction shall he deemed to be a mortgage by conditional sale, unless the condition is embodied in the document which effects or purports to effect the sale, the so-called agreements for re-conveyance cannot affect the pre-emptors right of pre-emption. The learned Advocate also submits that the pre-emptor petitioner filed the pre emption Case on 10-3-1992 but the so called re-conveyances by 4 registered deeds took place on 24-9-1992, long after the filing of the pre-emption case and, as such, the disputed transactions are clearly hit by the principle of lis pendens under section 52 of the Transfer of Property Act. The learned Advocate further submits that the so-called deeds of re-conveyances Ext. Ka series being the products of fraud and collusion between opposite party Nos.1-11 and 7-11, the learned Subordinate Judge was manifestly wrong in refusing pre-emption without carefully considering the facts and circumstances of the Case and the law bearing on the subject, and the same has occasioned failure of justice
8. M A Jalil, the learned Advocate appearing for the contesting opposite parties, on the other hand, submits that in the face of agreements for re-conveyances which are contemporaneous documents, and in view of the admitted fact that the vendees have already re-conveyed the case land to the vendors, the learned Subordinate Judge, was fully justified in refusing pre-emption.
9. The learned Advocate appearing for the pre-emptor petitioner has placed before us the impugned judgment. It appears that the learned Subordinate Judge found that the pre emptor is a co-sharer in the case land and he has locus standi to maintain the pre-emption case. The learned Subordinate Judge also found that the case is not barred by limitation and it is not bad for defect of parties. The only ground on which the learned Subordinate Judge refused pre-emption is that the land under pre-emption has already been re-conveyed to the vendors by the vendees in pursuance of agreements for re-conveyance. It is found that the learned Subordinate Judge failed to consider the vital fact that the deeds of re-conveyance came into existence on 24-9-1992 whereas the present case for pre-emption had been filed on 10-3-1992. It is thus evident that the alleged deeds of re-conveyance have been brought into existence more than six months after the filing of the pre-emption case. Admittedly, the disputed sale deeds were executed on 21-7-1991 and this is why there is no mention about the alleged agreements for re-conveyance in the disputed sale deeds.
10. It is a settled proposition of law that sale takes effect from the date of execution of the sale deed and not from the date of its registration. In the absence of any allegation of fraud and collusion in concluding the disputed sale deeds, the vendors lost all their interests in the case property on and from 20-7-1991, as a result of which they had no subsisting interest in the case property on 21-7-1992 to encumber the sales by subsequent agreements for re-conveyance on 21-7-1991. So the alleged deeds of re-conveyances dated 21-7-1991 cannot encumber any property which was already duly transferred by its vendors on 20-7-1991. In the facts of the case, the alleged agreements of re-conveyances dated 21-7-1991 cannot be considered as contemporaneous documents to affect in any way the earlier executed sale deeds. Moreover, the pre-emptee opposite parties have not stated even one word either in their written objection or in their evidence explaining the circumstances preventing them from mentioning in the disputed sale deeds the fact of the agreements for re-conveyance or why these were executed one day after the admitted execution of the disputed sale deeds on 20-7-1991. In the facts and circumstances of the case and the evidence on record, we find that the alleged agreements for re-conveyances of the case land and the subsequent re-conveyance of the same by the vendors to the vendees long after the filing of the pre emption case are fraudulent and colourable transactions brought into existence by the opposite parties in collusion with each other for the purpose of defeating the pre-emptor’s right of pre-emption.
11. The pre-emptor petitioner deposing as a witness clearly stated in his evidence that the so-called deeds of re-conveyances witnessed by Ext. Kha series are fake and fraudulent documents created for defeating his right of pre-emption. PWs 1 to 3 stated in their evidence that in pursuance of deeds of re-conveyance the vendees of the disputed sales already re-conveyed the case land to the vendors on 24-9-1992, evidently after more than six months of the filing of the pre-emption case. In the facts and circumstances of the case and the evidence on record, it must be found that the four deeds of agreements for re-conveyance are nothing but colourable transactions to defeat the right of pre-emption available to the pre-emptor It is unfortunate that the learned Subordinate Judge failed to address himself to this vital question in the light of the evidence on record and the attending facts and circumstances of the Case and thereby fell in error in refusing pre-emption. Moreover, the alleged deeds of re-conveyance Ext. Ka series dated 24-9-1992 are also hit by the principle of lis pendens under section 52 of the TP Act. Section 58 of the Transfer of Property Act also stands out prominently against contesting opposite parties. Mr Mihir Kanti Majumder, the learned Advocate appearing for the pre-emptor petitioner, has placed before us the Case of Abul Hossain and Other Vs. Md. Masim Ali and others, reported in 19 DLR, 677, the Case of Md. Sukur Ali Vs. Sree Suresh Chandra Barmon and others, reported in 4 BLD (AD) 219 and the Case of Khorshed Ali and another Vs. Aftauddin and others, reported in 47 DLR 607 in support of his contention while Mr MA Jalil, the learned Advocate appearing for, the pre-emptee opposite parties, has referred to us the Case of Shafi Khan Vs. Mannujan Hossain and others, reported in 35 DLR (AD) 225 in support of his submission.
12. On going through the cited decisions we are of the view that the present case is fully covered by the Cases cited by Mr Majumder. The facts and circumstances of the Case reported in 35 DLR (AD) 225 are quite distinguishable from the facts and circumstances of the present Case, the cited decision is of no assistance to the pre-emptee opposite parties.
13. In view of the fact that the so called agreements for re-conveyance of the case land by the vendees to the vendors have been found to be colourable transactions brought into existence for the sole purpose of defeating the pre-emptor’s right of pre-emption are not bonafide re-conveyance, the pre-emptor’s right of pre-emption subsists and he is entitled under the law to pre-emption. The fraudulent and collusive manoeuvres resorted to by the opposite parties cannot be allowed to stand in the way of pre-emption, which is otherwise available to the pre-emptor.
14. In view of the foregoing discussions, we are inclined to find that the learned Subordinate Judge was manifestly wrong in refusing pre-emption ignoring the vital facts and the attending circumstances of the case and the evidence on record.
15. In the result, the appeal is allowed without any order as to cost and the impugned judgment and order dated 20-4-1995 passed by the learned 2nd Court of Subordinate Judge, Chittagong in Misc. Case No. 10 of 1992 refusing pre-emption are set aside. Miscellaneous Case No. 10 of 1992 of the 2nd Court of Subordinate Judge, Chittagong for pre-emption is allowed.
Send down the lower Courts records immediately.