Korban Ali Khan (Md) and Others Vs. Asalat Khan and others, 53 DLR (2001) 176

Case No: Civil Revision No. 555 of 1992.

Judge: Bijan Kumar Das,

Court: High Court Division,,

Advocate: Md. Ramzan khan,Md. Serajul Islam Bhuiyan,,

Citation: 53 DLR (2001) 176

Case Year: 2001

Appellant: Korban Ali Khan (Md) and Others

Respondent: Asalat Khan and others

Subject: Pre-emption,

Delivery Date: 2000-7-27

Korban Ali Khan (Md) and Others Vs. Asalat Khan and others, 53 DLR (2001) 176
 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Bijan Kumar Das J
 
Korban Ali Khan (Md) and Others …………… Petitioners
Vs.
Asalat Khan and others……. Opposite Parties
 
Judgment
July 27, 2000.
 
Non-Agricultural Tenancy Act (XXIII of 1949)

Section 24
Pre-emption under section 24 of Non-Agricultural Tenancy Act is not confined to the land situated within the municipal area. A non-agricultural land situated in a rural area is also pre-emptible.

Section 24
There is no presumption of jointness in the Muslim Law. The presumption under the Muslim Law is that the Muslim families are separate. The purchase made by the mother and the sons are independent purchases and accordingly the purchases made by the pre-emptee Nos. 1-4, who are strangers, is pre-emptible excluding the purchase made by the mother by the self-same kabala.
 
Cases Referred To-
Muslim Halder (Md) Vs. Hajrat Ali Halder and others 48 DLR 175; Abdul Khaleque Vs. Abdur Noor and others 49 DLR 74 & Mantu Faraji alias Jamal Faraji and others Vs. Mahiuddin Khan 50 DLR 147;Tamizunnessa Vs. Umar Ali 18 DLR 572.
 
Lawyers Involved:
Md. Serajul Islam Bhuiyan, Advocate—For the Petitioners.
AS Md. Ramzan Khan, Advocate—For the Opposite Parties.

Civil Revision No. 555 of 1992.

Judgment


Bijan Kumar Das J


This Rule is directed against the judgment and order dated 12-11-1991 passed by the Subordinate Judge, 2nd Court, Dhaka in Miscellaneous Appeal No. 100 of 1990 affirming the judgment and order dated 28-3-1990 passed by the Assistant Judge, Keraniganj, Dhaka in Miscellaneous Case No. 11 of 1988.
 
2. The facts, in short, are that the opposite party Nos. 1 and 2 being the pre-emptors filed Miscellaneous (Pre-emption) Case No. 11 of 1988 in the Court of the Assistant Judge, Keraniganj, Dhaka impleading the petitioners as pre-emptees and opposite party Nos. 3-14 as other opposite parties, praying for pre-emption of the Case land under section 24 of the Non-Agricultural Tenancy Act alleging, inter alia, that the Case land appertaining to CS plot No. 934 measuring an area 10-1/2 decimals out of 0.42 decimals originally belonged to one Rustan Khan and Mulfat Khan in equal shares, that Rustan Khan died leaving behind 2 sons Tozammel and Hafiz Khan who subsequently died leaving the pre-emptors as their heirs and accordingly, the pre-emptors are co-sharers in the Case land by inheritance. The opposite party No. 3 Md. Musab Khan transferred the Case land to the pre-emptees by a kabala dated 4-2-1998 at a total consideration of Taka 20,000.00 and pre-emptors accordingly, filed the Case for pre-emption of the Case land upon deposit of compensation money at the rate of five per centum of the consideration money.
 
3. The pre-emptees contested the Case by filing a written objection contending that the Case is not maintainable and the same is bad for defect of parties. The pre-emptees also claimed that the Case is barred by limitation, the pre-emptee further alleged that Md Musab Khan transferred the Case land on 4-2-88 to the pre-emptees to the knowledge of the pre-emptors and delivered possession of the Case land in favour of the pre-emptees and that the pre-emptees erected ‘dochala’ tin shed measuring 17 cubits in length and 8 cubits in breadth and planted various trees at a cost of Taka 30,000.00. The pre emptees also claimed that the pre-emptee No. 5 is a co-sharer in the Case land and, as such, the pre-emption Case that was filed against a co-sharer by inheritance is not maintainable.
 
4. The trial Court framed necessary issues and on consideration of the same found that the pre-emption proceeding is not bad for defect of parties. The trial Court also found that the pre-emption Case was filed before the cause of action arose and accordingly the pre-emption proceeding was not barred by limitation. The Court noticed that there is no evidence with regard to estoppel, waiver, acquiescence and res judicata. The trial Court further noticed that though there was no Case made out in the written objection but in evidence the opposite party tried to make out a Case of estoppel alleging that at the time of transfer, the pre-emptors made the negotiation. The trial Court noticed that in the absence of any such pleading in respect of estoppel, the opposite parties are not permitted to raise such plea in evidence and also could not prove that the transfer took place on the negotiation of the pre-emptors. The trial Court while holding the aforesaid view relied on a decision reported in 27 DLR 413. The trial Court noticed that the Case land is a homestead and pre-emptors have filed the Case under section 24 of the Non-Agricultural Tenancy Act and the pre-emptees in their written objection did not raise any plea with regard to the nature of Case land. In the written objection it has not been pleaded that the pre-emption Case under section 24 of the Non-Agricultural Tenancy Act is not maintainable. Accordingly, the trial Court held that the pre-emption under section 24 of the Non Agricultural Tenancy Act is maintainable. The trial Court also found that the pre-emptors are co-sharers by inheritance. The Court further found that the pre-emptee No. 5 is also a co-sharer by inheritance. The trial Court noticed that since the transfer was made by one kabala, the pre-emption proceeding is maintainable as against the pre-emptee Nos. 1-4. Accordingly, by judgment and order dated 28-3-90 the trial Court allowed pre-emption in part against pre-emptee Nos. 1-4 in respect of their 0.08-4/10 acres of land.
 
5. The pre-emptees then preferred Miscellaneous Appeal No. 100 of 1990 before the learned District Judge, Dhaka. The learned Sub ordinate Judge, 2nd Court, Dhaka who heard the said appeal found that the pre-emptors are co sharers by inheritance in the Case land and that the pre-emption proceeding is not bad for defect of party nor barred by limitation. The lower appellate Court considered the evidence on record and found that the Case land is a homestead and not cultivable land. The pre-emptees could not prove that the Case land is agricultural land nor took any objection in their written objection that the Case land is agricultural land. The lower appellate Court accordingly, concurred with the trial Court that the Case is maintainable under Non-Agricultural Tenancy Act. The lower appellate Court further concurred with trial Court that the pre-emptors are entitled to get the pre-emption of the Case land as against the pre-emptee Nos. 1-4. The lower appellate Court considered the pre-emptees Case of improvement and found that the pre-emptees are not entitled to any improvement cost but they can remove the construction made on the Case land. Accordingly, by judgment and order dated 12-11-91 the learned Subordinate Judge dismissed the appeal and affirmed the decision of the trial Court.
 
6. Being aggrieved thereby the pre-emptees as petitioners moved this Court and obtained the present Rule.
7. Md. Serajul Islam Bhuiyan, the learned Advocate appearing for the petitioners, submits that the Case land is homestead situated in a rural area and accordingly, pre-emption under section 24 of Non-Agricultural Tenancy Act is not maintainable. In support of his submission the learned Advocate for the petitioners relied on the Case of Muslim Halder (Md) Vs. Hazrat Ali Halder and others reported in 48 DLR 175 and in the Case of Abdul Khaleque Vs. Abdur Noor and others reported in 49 DLR 74. The learned Advocate has further relied on a decision in the Case of Mantu Faraji alias Jamal Faraji and others Vs. Mahiuddin Khan reported in 50 DLR 147.
 
8. AS Md. Ramzan Khan, the learned Advocate appearing for the opposite parties, on the other hand, submits that there is no plea in the written objection that the Case land is not non-agricultural land and there is no evidence also that the Case land is not non-agricultural land. The learned Advocate submits that a non-agricultural land situated in a rural area is pre-emptible under section 24 of the Non-Agricultural Tenancy Act. The learned Advocate further submits that both the Courts below considered the said aspect and recorded a concurrent finding that the pre-emption Case under section 24 of the Non-Agricultural Tenancy Act is maintainable. According to the learned Advocate, the said finding of fact based on consideration of the evidence of record is concluded and may not be disturbed by the High Court Division in Revisional Jurisdiction.
 
9. I have considered the submission of the learned Advocate for both the parties and the evidence on record and perused the impugned judgment of the Courts below. The pre-emption proceeding was filed under section 24 of the Non- Agricultural Tenancy Act. The pre-emptees did not raise any plea in their written objection that the Case land is not a non-agricultural land and pre-emption under section 24 of Non-Agricultural Tenancy Act is not maintainable. Both the Courts have noticed that there is no evidence that the Case land is not a non-agricultural land. Both the Courts have therefore recorded a finding that the Case land being a non-agricultural land is pre-emptible under section 24 of the Non-Agricultural Tenancy Act. I do not find any ground or reason to disagree with the said concurrent finding of facts of the Courts below. The learned Advocate for the petitioners could not point out any misreading or consideration of the pleading& (and the evidence by the Courts below with regard to the maintainability of the Case for pre-emption under section 24 of the Non-Agricultural Tenancy Act.
 
10. I have considered the decisions cited by the learned Advocate for the petitioners, namely, 48 DLR 175, 49 DLR 74 and 50 DLR 147 and I am of the opinion that the facts of those decisions are quite distinguishable. In the present Case it has been found that the Case land is a non-agricultural land. A non-agricultural land situated in a rural area is pre-emptible under section 24 of the Non Agricultural Tenancy Act. On a consideration of section 24, Non-Agricultural Tenancy Act it is found that pre-emption under section 24 of Non-Agricultural Tenancy Act is not confined to the land situated within the municipal area. A non-agricultural land situated in a rural area is also pre emptible under section 24 of the Non-Agricultural Tenancy Act. I do not, therefore, find any substance in the submission of the learned Advocate for the petitioners that the pre-emption proceeding is not maintainable under section 24 of the Non-Agricultural Tenancy Act. The learned Advocate for the pre-emptees then submitted that partial pre-emption of the Case land is not permissible. The learned Advocate submits that the purchase was made by 5 pre-emptees and out of them pre-emptee No. 5 is a co-sharer by inheritance which has been found by both the Courts below and both the Courts have allowed pre-emption in respect of pre-emptee Nos. 1-4 excluding pre emptee No. 5 and therefore allowed a partial pre-emption which is not permitted in law.
 
11. AS Md Ramzan Khan, the learned Advocate appearing for the pre-emptor opposite parties submits that the transfer made to a co-sharer by inheritance may not be pre-emptible by another co-sharer by inheritance but the transfer made to the strangers is very much pre-emptible and when by one kabala 5 persons being the pre-emptees made the purchase and pre-emptee No. 5 is only a co sharer by inheritance of the Case land, the purchase made by pre-emptee Nos. 1-4, who are strangers are very much pre-emptible and this will not amount to partial pre-emption. In support of his submission the learned Advocate has relied on the Case of Tamizunnessa Vs. Umar Ali reported in 18 DLR 572.
 
12. I have considered the submissions of the learned Advocate for both the parties. It appears that the pre-emptee No.5 is the mother and pre emptee Nos. 1-4 are sons. The purchase was made by one kabala. There is no presumption of jointness in the Muslim Law. The presumption under the Muslim Law is that the Muslim families are separate. The purchase made by the mother and the Sons are independent purchases and accordingly the purchases made by the pre-emptee Nos.1-4, who are strangers, is pre-emptible excluding the purchase made by the mother by the self-same kabala. This will not amount to partial pre-emption. I therefore do not find any illegality and infirmity in the decision of the Courts below allowing pre-emption against pre-emptee Nos. 1-4.
 
13. Both the Courts have found that the Case is not barred by limitation as the Case was filed before the registration of the kabala under section 60 of the Registration Act was completed. Both the Courts have concurrently found that the pre-emption proceeding is not bad for defect of pasties. Both the Courts have also concurrently found that it is admitted that the pre-emptors are the co-sharers by inheritance in the Case land. In that view of the matter, I do not find any substance in this Rule. Accordingly, this Rule is discharged without any order as to costs.
 
14. The order of stay of operation of the judgment and order dated 28-3-90 passed in Miscellaneous Case No. 11 of 1988 passed by this Court at the time of issuance of the Rule stands vacated.
 
Send down the LCR at once.
 
Ed.