Md. Ruhul Amin Vs. Kazi Abul Bashar and others, (Soumendra Sarker, J.)

Case No: F. M. A. No. 189 of 1998

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Abul Kalam Mainuddin, Advocate,

Citation: 2019(2) LNJ

Case Year: 2019

Appellant: Md. Ruhul Amin

Respondent: Kazi Abul Bashar and others

Subject: Non Agricultural Tenancy Act

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Soumendra Sarker, J

 

 

Judgment on

04.03.2019

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Md. Ruhul Amin

. . .Pre-emptee-Appellant

-Versus-

Kazi Abul Bashar and others

. . .Pre-emptor-Respondents

Non Agricultural Tenancy Act (XXIII of 1949)

Section 24

In a case for pre-emption filed under section 24 of the Non Agricultural Tenancy Act, 1949, if a co-sharer tenant owns a portion of land in any plot, he is to be treated a co-sharer in the entire plot, even if; the land to that plot is recorded in moiré than Khatian, and in the event of transfer of a portion of land of that plot appertaining to another Khatian, a co-sharer tenant can file a pre-emption case under section 24 of the Non Agricultural Tenancy Act notwithstanding the fact that he does not have any interest in that Khatian. Moreover, under the said provision of law the words  ‘one or more co-sharer tenants of such land’ occurring in section 24 of the Act means a co-sharer in the plot, not the holding as mentioned in section 96 of the State Acquisition and Tenancy Act, 1951.         . . . (15)

SM Bsiruddin Vs. Islam 35 DLR (AD) 230 and  Aminullah (Md) and others Vs. Serajul Huq and others 65 DLR (AD) 82 ref.

 

Mr. Abul Kalam Mainuddin, Advocate

. . . For the Appellant

Mr. M. Qumrul Haque Siddique, Advocate with

Mr. Mokarramus Shaklan, Advocate with

Mr.  Zareen Rahman, Advocate

. . . For the Respondents.

JUDGMENT

Soumendra Sarker, J. The appeal is directed at the instance of the pre-emptee-appellant against the judgment and order dated 31.08.1998 passed by the learned the then Subordinate Judge, 1st Court, Khulna in Miscellaneous Case No. 212 of 1996 under Section 24 of the Non Agricultural Tenancy Act, 1949.

2.             The facts relevant for disposal of the appeal in a nutshell can be stated thus, the present respondents as pre-emptors instituted the original Pre-emption Miscellaneous Case No. 212 of 1996 in the 1st Court of the then Subordinate Judge, Khulna against the pre-emptee-purchaser-opposite party and others contending inter alia that the case land appertaining to mouja Tutpara (Theara) in  J. L. No. 04 under Khulna City Corporation, corresponding to S.A. khatian No. 10 in Plot No. 1247 comprising an area of 0.09 acres originally belong to one Moksedul Hoque. Subsequently, by a registered deed of gift dated 18.08.1991 the property was gifted infavour of his four daughters namely Tanjira Aktar and three others. One of the daughters namely Monjira Aktar by a registered sub-kabala deed dated 29.10.1994 transferred her share 0.0225 acres of land in favour of the pre-emptors. Thereafter, Tanjira Akther sold her share in favour of the pre-emptors on 19.06.1995. In this way the pre-emptors became the owners of some land in the case khatian. The vendor-opposite party No. 2 & 3 by the case kabala deed dated 25.10.1995 transferred the case land in favour of the stranger purchaser-opposite party No. 1. The pre-emptors getting certified copy of the case kabala on 26.08.1996 finally came to know about the case deed and thereafter instituted the original Pre-emption Miscellaneous Case under section 24 of the Non Agricultural Tenancy Act, 1949.

3.             The contrary case of the purchaser-opposite party No. 1, who is  the present appellant in short is thus:  The case as instituted is liable to be dismissed inasmuch as, notice of transfer was duly served upon the pre-emptors and the pre-emptors had no locus standi to file the original case. That the case is barred by limitation and bad for defect of parties. The further case of the pre-emptee-appellant is such that the pre-emptor-respondents are not the co-sharers in the case plot.

4.             The vendor-opposite party No. 2 & 3  in their written objection alleged that, no sub-kabala deed was executed and registered in favour of the pre-emptee-opposite party No. 1 and for want of money they mortgaged the case land in favour of the pre-emptee-opposite party  after taking a sum of Tk. 3,00000/= (three lac). As a security of that money, the vendor-opposite party No. 2 & 3 on 25.10.1995 executed and registered a kabala deed in favour of the opposite party No. 1 and on the same date the opposite party No. 1 executed an Ekrarnama in favour of the vendor-opposite party No. 2 & 3, although that Ekrarnama was not registered.

5.             The trial court during trial of the original case after taking evidences from the sides of the respective parties, by the impugned judgment and order dated 31.08.1998 allowed the Pre-emption Miscellaneous Case.

6.             Being aggrieved by and dissatisfied with the impugned judgment and order, the pre-emptee-purchaser-opposite party No. 1 has instituted the present appeal.

7.             During hearing of the appeal Mr. Abul Kalam Mainuddin, the learned Advocate appeared on behalf of the appellant while Mr. M. Qumrul Haque Siddique, the learned Advocate appeared on behalf of the respondents.

8.             The learned Advocate appearing on behalf of the appellant submits that the learned trial court at the time of passing the impugned judgment and order committed illegality and irregularity.  The learned Advocate further submits that the pre-emptor-respondents have no locus standi to claim pre-emption as they are no longer the co-sharers by purchase in the case jote. The learned Advocate also submits that during pendency of the original case  the respondents forcibly dispossessed the appellant from his portion of land, and it has been admitted by the pre-emptors in their pleading that, while getting certified copy of the case kabala on 26.08.1996 they were taking preparation for filing of the pre-emption case, the opposite party No. 1 after collecting some “Golpata” and bamboos tried to erect a hut in the case land and also tried to change the nature and feature of the property. The learned Advocate also submits that inasmuch as, subsequent to the case, the appellant has been dispossessed, he is entitled recovery of possession in respect of the case land and as much the pre-emptee-appellant after filing an application under section 55 of the Specific Relief Act prayed for granting temporary injunction in mandatory form directing the respondent No. 02 to restore possession of the case land in favour of the appellant.  The learned Advocate lastly after referring some decisions submits that in a case for pre-emption  filed under section 24 of the Non Agricultural Tenancy Act, the word ‘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-share tenants under the same landlord in respect of undivided land though such co-sharer tenants may be co-sharer tenants of the tenancy, but in this case, the pre-emptors are ceased to be the co-sharer tenants in the land transferred as a separate mutation Khatian  has been opened and it is evident from their admission in the testimonies of pre-emptors, but the learned court below ignoring the facts, allowed the pre-emption miscellaneous case illegally which is liable to be set aside.

9.             As against the aforesaid submission of the learned counsel for the appellant, the learned counsel appearing on behalf of the respondents submits that the learned trial court during passing the impugned judgment and order committed no illegality, infirmity or irregularity. The learned Senior Counsel further submits that the pre-emptor-respondents during trial of the original pre-emption miscellaneous case after adducing sufficient tangible evidences successfully proved that they are the co-sharers by purchase  in the case jote under present Plot No. 1247 of State Acquisition (S.A.) Khatian No. 10 comprising an area of .09 acres of land, out of which .04 ½  acres of land has been transferred by the case kabala deed dated 25.10.1995. The learned Advocate further submits that it has been well proved from the side of pre-emptor-respondents that they have locus standi  to institute the original pre-emption miscellaneous case under section 24 of the Non Agricultural Tenancy Act and in the original case there is no defect of party and the case is not barred by limitation and lastly in fact the case land was not mortgaged in favour of the pre-emptee-purchaser-opposite No. 01 and as such the learned Subordinate Judge, 1st court Khulna  by the impugned judgment and order dated 31.08.1998 rightly allowed the pre-emption miscellaneous case on contest. The learned Advocate  submits that in the original case, there is no evidence that among the co-sharers, there was any partition by metes and bounds and the learned Senior Advocate,  Mr. Qumrl Haque Siddique referring a decision of our Apex Court reported in  65 DLR (AD) 82 submits that by opening of a separate mutation Khatian, the statutory right of pre-emption is not affected inasmuch as  the case plot remain intact and this case was instituted not under section 96 of the State Acquisition and Tenancy Act, 1950 but under section 24 of the Non Agricultural Tenancy Act, 1949. The learned Advocate pointed out that there is no evidence on record that there was any contract for re-convenience and the O. P.W. 1 in his testimony frankly conceded that the case land is being possessed by them, not the pre-emptee. Submitting a counter affidavit on behalf of the respondent- opposite party No. 02, the learned Senior Counsel Mr. Siddique argued that after the judgment and order passed by the  trial court allowing the pre-emption in favour of the pre-emptor-respondents, the vendors sold their house to the pre-emptor-respondents with value. The learned Advocate in his concluding submission submits that in the impugned judgment and order there exist no illegality, infirmity or irregularity by dint of which, the impugned judgment and order can be interfered with. 

10.         In order to appreciate the submission advanced from the sides of the learned Counsels for the parties, having gone through the judgment and order passed by the trial court in Pre-emption Miscellaneous Case No. 212 of 1996 under section 24 of the Non Agricultural Tenancy Act, 1949, the evidences adduced from the sides of the respective parties and all other connected papers and analyzing the relevant  papers on record meticulously, I find that the pre-emptors in order to get the case property pre-empted, instituted the original case in respect of the land measuring 0.04 ½ acres out of 0.09 acres under Plot No. 1247 of present S. A. Khatian No. 10 under mouza No. 4 Tutpara (Theara) situated within  Khulna City Corporation and it is the specific case of the pre-emptors that they are co-sharers by purchase in the case plot, but the other co-sharers of the property, the vendor-opposite party No. 2 & 3 behind their back without serving any notice transferred the case land in favour of the stranger-purchaser-opposite party No. 1 by way of a registered sub-kabala deed dated 25.10.1995. It is the pleading’s case of pre-emptors that on 26.08.1996 for mutation of their land, they went to the office of the Assistant Commissioner (Land) and at that time, from  that office they came to learn that the purchaser-opposite party No. 1 after his purchase mutated his name pursuant to a Mutation case No. 822(2)/1995-96 and thereafter on the same date getting certified copy of the case kabala the pre-emptor-respondents finally knew about the case transfer.

11.         Vis-à-vis, the contrary case of the appellant is such that the case land was not transferred in his favour, rather; it was mortgaged and the opposite party No. 2 & 3 after taking a sum of taka 3,00000/= (three lac) as security, executed and registered the sub kabala deed in his favour. The further case of the pre-emptee-opposite party-appellant is such that in the case property there has been a partition by metes and bounds among the co-sharers and the opposite party No. 2 & 3 by virtue of that,   giving boundary of the case land possessed the same and as such the pre-emptors are not co-sharers.

12.         Both the parties to the case to substantiate their respective pleading’s contention, have adduced evidence. P.W. I. is the pre-emptor No. 1 Kazi Abul Kalam. This witness  in his testimony testified that after purchasing some land of the case plot by two registered sub-kabala deeds, they have mutated their names in respect of 4 ½ decimals. The pre-emptor No. 1 in his testimony also testified  that they came to know about the case kabala  for the 1st time, when they went to the office of the Assistant Commissioner (Land), from where they were informed that the purchaser-opposite party No. 1 suppressing notice managed to obtain an order of mutation in his name. During cross-examination P.W. 1 testified at a stage that they are 04 (four) brothers and the property remains in ejmali and their father is alive.  In a reply to a question from the side of the pre-emptee, P.W. 1 testified that in the case land there is no fencing or partition and among the brothers, there has been no partition. In another stage of cross-examination, P.W. 1 denied the pleading’s case of the appellant categorically. P.W.2 Md. Mahatab Uddin in his testimony testified that he knows the parties and the case land. P. W. 2 further testified that he has seen that the settlement officials after surveying the land recorded the same in the names of the pre-emptors and he (P.W.2) has homestead beside the case land. During cross-examination P. W. 2 categorically testified at a stage that for the 1st time when the pre-emptors came to know about the case kabala, he (P. W. 2) was personally present. P. W. 3 Mahabubul Alam deposed in support of the survey of land by the settlement officials. During cross-examination       P. W. 3 testifies at a stage that on 18.07.1996 at about 11:00 A. M. the survey was done and at that time the vendor-opposite party No. 2 & 3 were not present.

13.         On the contrary, from the side of the opposite parties, O. P.W. 1 the purchaser-opposite party-appellant Md. Ruhul Amin in his testimony testified that, there was an Ekrarnama in respect of the case land and the case land was mortgaged in his favour pursuant to a mortgage deed executed by the opposite party No. 2 & 3. During cross-examination O.P.W. 1 in a reply to a question from the side of the pre-emptors testified that there has been a kabala deed in respect of the disputed property which was duly registered, but the Ekrarnama was not registered. O.P.W. 1 in his testimony conceded that, prior to purchase no notice was served. O.P.W. 2 Anjira Aktar deposed on behalf of the vendor-opposite party No. 1 & 2. This witness in her deposition testified that the case land belonged to their father and her father gifted the  property in favour of 04 (four) sisters on 18.08.1996. O. P.W. 2 at a stage of her testimony also testified that the case deed is not ‘sub kabala’, rather; it is a ‘mortgage kabala’. O.P.W. 2 denied that the pre-emptors knew about the case kabala for the 1st time on 18.07.1996 from the settlement officials. O. P.  W. 3 S. M. Nazrul Islam in his testimony testified that the case land was mortgaged in favour of Ruhul Amin and on the date of mortgage an Ekrarnama was executed by Ruhul Amin. During cross-examination in a reply to a question from the side of the pre-emptors, O. P.W. 3 frankly admitted that the deed is not at all a mortgage deed, and the case land has been transferred by “kot kabala ekbari”.

14.         On perusal of the case records it transpires that the learned trial court in the impugned judgment and order with regard to the matter of determination which were five in numbers, decided all the points in favour of the pre-emptors analyzing the evidence on records in its true perspective. It has been conclusively held  on assessment of evidence that the case as instituted is maintainable and the pre-emptors  have locus standi to institute the original case for pre-emption. With regard to defect of parties no defect is noticed and scrutinizing the pleadings of the parties no where it is found that any necessary party is left out. Furthermore; the pre-emptors during trial prayed for reply of the interrogatories, but the opposite parties did not furnish any particulars in the form of reply to interrogatories, and as such the court below rightly decided the point in favour of the pre-emptors. With regard to the point of limitation and in nature of transfer deed, it is apparent from the face of the document that the deed in question is out and out a sub-kabala deed. Within the recital of the deed, there is no mention about the so-called mortgage or as to the existence of the alleged Ekrarnama. Which will get priority. The evidence on record goes to show that admittedly no notice of transfer was given prior to the transfer deed and the cause of action as cited from the side of the pre-emptors has been corroborated by tangible evidence as adduced from their side. Besides this, with regard to the date of knowledge, from the cross-examination of the witnesses no such discrepancy or material contradiction is noticed by dint of which it can be held that prior to the date of knowledge mentioned, the pre-emptor-respondents were in the know about the case transfer.

15.         Having gone through the connected papers I find that under section 24 of the Non Agricultural Tenancy Act, 1949 the instant case was filed. Therefore, obviously on the pertinent point in hand as to the opening of a separate mutation khatian as admitted from the side of the pre-emptors and the submission advanced from the side of the learned Counsel Mr. Mainuddin on behalf of the pre-emptee-appellant that the pre-emptors are ceased to be a co-sharer by purchase in the case land, it is noticed on careful scrutiny over the relevant papers and apprising the provisions of law provided in section 24 of the Non Agricultural Tenancy Act, 1949, that there lies cogent reason to inclined such a view that in a case for pre-emption filed under section 24 of this Act,  if a co-sharer tenant owns a portion of land in any plot, he is to be treated a     co-sharer in the entire plot, even if; the land to that plot is recorded in more than one khatian, and in the event of transfer of a portion of land of that plot appertaining to another khatian, a co-sharer tenant can file a pre-emption case under section 24 of the Non Agricultural Tenancy Act notwithstanding the fact that he does not have any interest in that khatian. Moreover, under the said provision of law the words  ‘one or more co-sharer tenants of such land’ occurring in section 24 of the Act means a co-sharer in the plot, not the holding as mentioned in section 96 of the State Acquisition and Tenancy Act, 1951 [ Ref. SM Basiruddin Vs.  Islam 35 DLR (AD) 230].

16.         In the context, I may not be out of place to reproduce the case law referred to by Mr. Siddique in the case of Aminullah (Md) and others vs Serajul Huq and others 65 DLR (AD) 82 wherein their Lordships held:

“In a case of pre-emption filed under section 24 of the Non-Agricultural Tenancy Act if a co-sharer tenant owns a portion of land in any plot, he is to be treated as co-sharer in the entire plot even if the land of that plot is recorded in more than one khatian. Therefore, in the event of transfer of a portion of land of that plot appertaining to another khatian a co-sharer tenant can file a pre-emption case under section 24 of the Non-Agricultural Tenancy Act notwithstanding the fact that he does not have any interest in that khatian. The words “ one or more co-sharer tenants of such land” occurring in section 24 of the Non-Agricultural Tenancy Act means a co-sharer in the plot not the holding as mentioned in section 96 of the State Acquisition and Tenancy Act. Such  being the position of law, the pre-emptors were not even required to file an application for amendment to show that they  have also  interest in RS Khatian No. 3838. In the case of SM Basiruddin vs Z Islam, 35 DLR (AD) 230, it has been held that the expression ‘non-agricultural land’ used in section 24 of the Non-Agricultural Tenancy Act is not synonymous with the word ‘holding’ as used the “Bengal Tenancy Act or State Acquisition of Tenancy Act”.

17.         Relying upon the aforesaid decisions as well as proposition of law and the facts and circumstances of this case, it appears that the grounds of this appeal are not acceptable.

18.         Having regard to the facts, circumstances and the discussions referred to above, I find support in the submission advanced from side of the learned Senior Counsel Mr. M. Qumrul Haque Siddique, and as such I am constrained to hold such a view that in deciding the fate of the original case the learned the then Subordinate Judge, 1st Court, Khulna committed no illegality or infirmity by dint of which the impugned judgment and order can be interfered with.

19.         In the result; the appeal is dismissed without any order as to costs.

20.         Communicate the judgment and order at once.

21.         Send down the Lower Court’s Records immediately.

Ed.