Md. Yeamin Nobi Vs. Moklesur Rahman and others, 4 LNJ (2015) 561

Case No: F. M. A. No. 183 of 1998

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Advocate: Mr. Md. Nurul Amin,Mr. A. K. M. Golam Mohiuddin,Ms. Shovana Banu,,

Citation: 4 LNJ (2015) 561

Case Year: 2015

Appellant: Md. Yeamin Nobi

Respondent: Moklesur Rahman and others

Subject: Pre-emption,

Delivery Date: 2015-03-12


HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)

 
Sheikh Abdul Awa, J.
 
Judgment on
11-12.3.2015
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Md. Yeamin Nobi being dead his heirs: 1(Ka) Nasrin Easmin and others.
. . . Appellants
-Versus-
Moklesure Rahman and others.
. . .Respondents

Partition Act (IV of 1893)
Section 4
The pre-emption case under section 4 of the Partition Act is an independent proceeding in which schedule of case land and particulars of the disputed deeds are very much required to be described/ made in details otherwise the pre-emption case must fail. . . . (14)

Partition Act (IV of 1893)
Section 4
There is no time limit for filing an application under section 4 of the Partition Act. . . . (21)

Partition Act (IV of 1893)
Section 4
From a combined reading  of those deeds, I find that the pre-emptor, Yeamin Nobi transferred a part of land from  his share  to 3rd party  long before filing of the instant pre-emption case under section 4 of the Partition Act  and as such,  it does not lie in the mouth of the pre-emptor petitioner that the land in question is a part of dwelling house of an undivided family or he needs more land badly. . . .(25)

Partition Act (IV of 1893)
Section 4
The respondents’ basic objection to the maintainability of the pre-emption case mainly on two counts that (i) the land in question is not a part of an undivided family’s property and (ii) the original  pre-emptor-petitioner neither mentioned the schedule of the land nor given any  particulars of the disputed deeds in the original pre-emption application are sound and,  I accordingly  hold that the pre-emption case itself was not maintainable. . . . (28)

36 DLR 351; 1 BLT (AD) 34; AIR 1973 (Patna) 142; 59 DLR (AD) 69; 14 BLC 734; 4 BLC (AD) 98; 54 DLR 181; Syesta Bibi and others Vs. Juma Sha and others, 1 BLT (AD) 34; Azizur Rahman and others Vs. Jugal Kishori Sarkar and others, 36 DLR 351; H. N. Mukharjee Vs. Shyam Sunder Kuer, AIR 1973 (Patna) 142; 15 BLT 18; 13 BLT 418; 15 DLR(SC) 120; 63 DLR(AD) 138; 11 DLR 355;  40 DLR(AD) 150; 53 DLR 256; AIR 1960 (Cal) 467; AIR 1985 (Orissa) 137;  31 DLR (AD) 320; Volum-7 ADC 593; 6 MLR (AD) 46 and 65 DLR(AD) 82 ref.

Mr. Md. Nurul Amin, Advocate
...For the appellants
Mr. A. K. M. Golam Mohiuddin with
Ms. Shovana Banu, Advocates
.... For the Respondents

F. M. A. No. 183 of 1998
 
JUDGMENT
Sheikh Abdul Awal, J:
 
This First Miscellaneous Appeal is directed against the impugned judgment and order dated 17.5.1998 passed by  the then Sub-ordinate Judge, 1st Court, Kushtia in Misc. (pre-emption)  Case No.43 of 1989  disallowing the Misc. Case under section 4 of the Partition Act.

The appellants’   case, in-short, is that the land measuring 0.58 acre in plot No. 724 appertaining to C.S. Khatian No.509 under holding No.8 of  Kushtia Pourashava was originally belonged to Nil Moni Roy Chowdhury and others, who exchanged the same with the two brothers named Yamin Nobi alias Yeasin Nobi and Rexaun Nobi). The said two brothers after getting the disputed land under exchange deed in equal share started living thereon and later on conflict was started between them resulting various civil and Criminal cases were started amongst them. In this background the predecessor of the respondents, Md. Rejan Nabi  as plaintiff filed Title Suit No.174 of 1976 in the Court of the then Sub-ordinate Judge, 1st Court, Kushtia for partition against his brother Yeamin Nobi ( predecessor of the present appellants)  and got Preliminary decree on  contest vide judgment and decree dated 12.04.1980. The defendant No.1, thereafter, as appellant preferred First Appeal No.7 of 1981 before this Court and during pendency of the said appeal the plaintiff  opposite party No.1 sold his 50% undivided share of land on 14.2.82, 16.2.82, 15.7.82 and 17.7.82 by 6 Kabalas  (Ext. Nos.’Cha’ and ‘Chha’ series) without serving any notice upon the predecessor of the present appellants  and hence,  Md. Yeamin Nobi,  the predecessor of the present appellants filed Misc. (pre-emption) Case No.43 of 1989 under section 4 of the Partition Act for pre-empting the case land.

Respondent Nos. 1 to 3 as opposite party Nos. 2-4 entered appearance in the Misc. Case and filed written objection contending inter alia that the disputed land is not undivided land because petitioner Yamin Nobi was living separately in   the divided land under holding No.8 of Kushtia Pourashava paying separate Tax and opposite party No.1, Rezaun Nobi was also living in divided land under separate holding No.8/1 of Kushtia Pourashava paying separate Tax to the Government. The petitioner,  Yeamin Nobi also sold some land from his share of the disputed plot to others. The pre-emption case is hopelessly barred by limitation because the petitioner filed the pre-emption case under section 4 of the Partition Act beyond the stipulated period of 3(three) years and hence, the pre-emption case is liable to be dismissed.

At the trial both the parties led evidence both oral and documentary to prove their respective cases.

The trial Court on consideration of the evidence on record factually found that the land under pre-emption was  divided land   and the  petitioner did not mention the schedule of the land  under pre-emption   in the original pre-emption petition and the pre-emption case  was barred by limitation  according to the provision under Article 180 of Limitation Act as the case was filed long lapse  of 6/7 years, that is, beyond the stipulated period  of 3 years and thus, the learned Subordinate Judge dismisses the pre-emption case by  the impugned judgment and order dated 17.5.1998.

Being aggrieved by and dissatisfied by with the aforesaid  impugned judgment and order dated 17.5.1998 the appellant, Yeamin Nobi, the predecessor of the present appellants preferred this appeal.

Mr. Md. Nurul Amin, the learned Advocate appearing for the appellant in the course of his argument has taken  me through the impugned judgment, deposition of PWs and OPWs and other materials on record and then submits that the  learned trial judge erred in law in disallowing the pre-emption case on the main ground that  the case was hopelessly barred by limitation as the case was filed beyond the stipulated time of 3 years although there is no limitation to file the pre-emption case and as such the impugned judgment is liable to be set-aside. The learned Advocate to fortify his 1st  branch of argument has referred to the decisions reported in 36 DLR 351, 1 BLT(AD) 34 and AIR 1973 (Patna) 142.  Mr. Nurul Amin further submits that the findings of the trial Court below on the point of partition of the suit land is perverse being contrary to the evidence on record inasmuch  as admittedly, Md. Rejan Nobi as plaintiff filed Title Suit No.174 of 1976 for partition of their ejmali property  including the case land and finally the said suit was decreed and as such in no way it can  be said that the ejmali property  of the parties   was partitioned or divided by metes and bounds.  Mr. Nurul Amin further submits that the engaged Advocate  in the court below due to his unintentional mistake did not mention  the schedule of the land under pre-emption in the pre-emption petition  and the same can not be a valid ground to reject the case if otherwise the case  is maintainable in law.  Finally, Mr.  Nurul Amin submits that the impugned judgment is a product of non application of judicial mind and suffers from patent illegality and as such the same is liable to be set-said. 

Mr. A. K. M. Golam Mohiuddin, the learned Advocate appearing for the defendant-respondents, on the other hand, supports the impugned order and contends that the learned Sub-ordinate Judge was perfectly justified in disallowing the pre-emption case  on the clear findings that land under pre-emption was  not undivided  land   and the  petitioner did not mention the schedule of the case land  in the original pre-emption petition and the pre-emption case was barred by limitation  according to the provision under Article 180 of the Limitation Act inasmuch as the case was filed long lapse  of 6/7 years, that is, beyond the stipulated period  of 3 years. He further upon referring to the evidence of PW-1 and OPW-1 and the certified copy of the sale deeds as well  submits  that admittedly   the pre-emptor himself transferred a portion of land from his share and as such it does not lie in the mouth of the pre-emptor that he needs more land or land in question was belonged to joint or   undivided family.  Mr. Mohiuddin further submits that in spite of getting opportunity to implead the necessary parties such as Taimur Banda, Mozaffar Hossain and others the petitioner deliberately did not implead them in the case  and as such the case was  bad for defect of parties. Finally, the learned Advocate submits that the petitioner  never approached before the Court with clean hands, who made self contradictory statements as witness in 2  cases namely Title Suit No.174 of 1976 and Misc. (pre-emption)  Case No.43 of 1989 as to the property in question was divided or not  and as such the  appellants as heirs of the pre-emptor petitioner  are not entitled to get any relief whatsoever. The learned Advocate to fortify his argument has relied on the decisions reported in 59 DLR (AD) 69, 14 BLC 734, 4 BLC (AD) 98 and 54 DLR 181.

I have heard the learned Advocates for both the sides at length and perused the memo of appeal, deposition of witnesses of both the cases, that is, Misc. (pre-emption) Case No.43 of 1989 and Title Suit No.174 of 1976 and other relevant materials on record.  Now, to deal with the contentions raised by the parties before this Court it would be convenient for me to decide first of all the question whether the land in question belonged to joint/ undivided family or not. 

On scrutiny of the impugned judgment it appears that the trial Court after a detailed discussion of the evidence and materials on record came to a conclusion that the land under pre-emption is not a part of the property of undivided family. In coming to this conclusion, the said Court noticed that: “সুতরাং ইহা প্রমানিত যে, ১নং প্রতিপক্ষ ও দরখাস¹কারী অবিভও্র পরিবারের সদস্য ছিল না এবং ১নং প্রতিপক্ষ অবিভও্র পরিবারের সদস্য হিসাবে নালিশী কবলা সমুহের জমিতে তদুপরিসিহত বিল্ডিং ২-৪ নং প্রতিপক্ষের নিকট বিএ্রি করেন নাইz উপরের আলোচনা হতে আরো প্রমানিত হয় যে, ১ নং প্রতিপক্ষ প্রদত্ত ২-৪ নং প্রতিপক্ষের অনুকুলীয় কবলা সমুহের জমাজমি ও বিল্ডিং অবিভও্র পরিবারের মালিকানাধীন বসতবাড়ী (বষলনড়ঢ়নতধ ) অর্ভুও্র জমি ও বিল্ডিং ছিল না“

In this case the pre-emptor, Yeamin Nobi himself was examined as PW-1, who in his deposition stated that the case land has not yet  been partitioned, the opposite party Nos.2-4 are stranger to the case land. This witness in his cross-examination denied the suggestion of the opposite parties stating that: “১৬/৪/৮৮ ইং তারিখে আকতার বাবু ও আবদুল মুরাদের কাছে জমি বিএ্রি করেছি এ কথা সত্য নয়z আকতার বাবু ও আবদুল মুরাদের কাছে বিএ্রয় বিষয় ঠিক একথা সত্য নয়” This witness was also examined as DW-1 in Title Suit No.174 of 1976, who in his deposition stated that the plaintiff and myself are in possession over the suit land by specific boundary. I have got separate holding No.8 for my portion. The plaintiff’s holding number is 8/1. We also pay separate municipal tax. This witness as defendant No.1 filed  written statement in Title Suit  174 of 76 stating inter alia  that: “বাদী বিবাদীর মধ্যে নালিশী সম্পত্তি অাপোষ বিভাগ বন্টন হইয়া গিয়াছে এবং পূîর্ কথিত অংশ মোতাবেক বাদী নালিশী সম্পত্তির পশ্চিমাংশের দখল প্রাপ্ত হয়z---------------- বাদীর দখলীয় অংশ কুষ্টিয়া মিউনিসিপ্যালিটির আর, এ, খান রোড এর ৮/১ নং হোল্ডিং এবং বিবাদীর দখলীয় অংশ ঐ রাসর ৮ নং হোল্ডিং হইতেছে”

From a plain reading of the above quoted evidence,   it appears that disputed land of opposite party No. 1 are divided land under separate holding No. 8/1 in which the pre-emptor petitioner’s holding No. 8 of Kushtia Pourashava. My view is, therefore, that the trial court below was perfectly justified in holding that the land under pre-emption is not a part of the undivided family’s land.

Now, coming to consider the question whether the trial Court committed any illegality in holding that: “নথি পর্যা­লাচনা­ দেখা যায় মূল­দং  ১৭৪/৭৬ নং বন্ট­নর মামলাটি­ত গত ১২/৪/৮০ইং তারি­খর বন্ট­নর ডিত্র্রি হ­য়­ছz নথী পর্যা­লাচনা আ­রা দেখা যায় যে, ডিত্র্রী­দর বাদী কতৃক প্রদত্ত অত্র মিস কে­সর নালিশী ৬টি যথাত্র্র­ম ১৬/২/৮২,  ২৪/২/৮২,  ৫/৭/৮২ এবং ১৭/৭/৮২ তারি­খ রেজিস্ট্রিকৃত হ­য়­ছz অত্র মামলাটি গত ২৮/৩/৮১ তারি­খ আনয়ন ক­র­ছz উক্ত বন্ট­নর ডিত্র্রীর তারিখ হ­ত কিংবা ঐ নালিশী কবলা সমু­হর রেজিস্ট্রীর তারিখ হ­ত নির্ধারিত ৩(তিন) বৎসর সময় সীমার ম­ধ্য অত্র মোকদ্দমা আনয়ন না করায় অত্র মোকদ্দমাটি তামাদী বারিত”

On a query by me, Mr. Nurul Amin, the learned Advocate submits that since the instant Misc. Case No.43 of 1989 under section 4 of the partition act is related with the original Title Suit No.174 of 1976, the engaged Advocate in the Court below did not mention the schedule of the case land in the original petition of misc. case for pre-emption. The pre-emption case under section 4 of the Partition Act is an independent proceeding in which   schedule of case land and particulars of the disputed deeds are very much required to be described/ made in details otherwise the pre-emption case must fail.  Therefore, the trial court below was perfectly justified in holding that since the pre-emptor-petitioner did not mention the schedule of the case land and particulars of the deeds in question   in the original pre-emption petition/ application, the pre-emption case is incompetent, misconceived and  not maintainable.

Mr. Nurul Amin, however, at the end of the day submitted that the engaged Advocate due to inadvertence did not mention the schedule of the land and particulars of the deeds under pre-emption in the pre-emption application and for that fault of the engaged Advocate the innocent appellants  should not suffer. To meet this argument I have carefully examined the record and it appears that  this  First Misc. Appeal No.183 of 98 was   filed on 14.06.98 and since then till to filing  an application for amendment of the plaint on 30.9.2013, that is,  more than 16 years   no one raised any question for incorporating the schedule of the land and particulars of the deeds under pre-emption by way of the amendment of the pre-emption petition. It also appears that no such ground was taken in memo of appeal as canvassed by Mr. Nurul Amin.

It is seen from the record that  in this case the pre-emptor-petitioner neither mentioned  the schedule of the case land and particulars of the deeds in question in the pre-emption case  nor taken any step  for incorporating the schedule of the case land and particulars of the disputed deeds  in the pre-emption application  by way of the amendment of the pre-emption petition at the time of filing the memo of appeal, who slept over the  matter idle over a period of 16 years. Therefore, I  am unable to see eye to eye to such submission made by learned Advocate on behalf of the appellants.  These indolent appellants in my view cannot get the relief as sought for. Law does not help the indolent rather it helps the vigilant.

As already noticed, the trial Court factually found the pre-emption case was hopelessly barred by limitation inasmuch as the pre-emption case was filed long  6/7 years after registration of   the impugned deeds, that is,  beyond the statutory period of 3 years.   Mr. Nurul Amin, the learned Advocate relying on the decisions reported in 36 DLR 351, 1 BLT(AD) 34 and AIR 1973 (Patna) 142 submits that the finding of the trial Court on the point of limitation is perverse being contrary to law bearing on the subject  inasmuch as there is no time limit for filing an application under section 4 of the Partition Act.

 
In order to consider this question, I feel it necessary to  quote hereunder the relevant passages from the cited decisions.  In the case of Syesta Bibi and others Vs. Juma Sha and others reported in 1 BLT(AD) 34,  our Apex Court observed as follows:

“The appellate Court’s finding that ”the suit land is no doubt a homestead, but is not a dwelling house of an undivided family” is utterly misconceived. In the suit land an undivided dwelling house is situated. The defendant himself claimed to be residing in a portion there. The suit property never lost its character of an undivided homestead because there had admittedly been no partition by metes and bounds by any previous arrangement. The impartible character of the suit property remained undisturbed when the suit was filed in 1962. There is no time limit for filing an application under section 4 of the Partition Act. In the instant case, the plaintiff’s claim cannot be called stale.”
 
In the case of Azizur Rahman and others Vs. Jugal Kishori Sarkar and others, reported in 36 DLR 351, this Court observed as follows:

”…………..It is undisputed position of law that there is no time limit for laying a claim under section 4 of the Partition Act unlike the claim for pre-emption under other law. So, the plaintiff having the benefit provided by the law itself there is no scope for this Court to refuse the claim of the plaintiff on the ground that the claim has been laid after much delay……………..”
 
In the case of H. N. Mukharjee Vs. Shyam Sunder Kuer reported in AIR 1973 (Patna) 142,  it was observed as follows:

“………An application under section 4 can be made at any stage of the suit. Simply because an application has been filed under section 4 after the passing of the final decree, it cannot be said that it is not maintainable on the ground that the executing Court cannot go behind the decree.”

On a reading of the above quoted consistent view of the superior courts of this subcontinent, I find a clear view of law as it stands today that there is no time limit for filing an application under section 4 of the Partition Act. Keeping in mind this undisputed position of law, I have no hesitation to hold that trial Court below erred in law in  arriving at a finding that the pre-emption case  is barred by limitation  according to the provision under Article 180 of Limitation Act as the case was filed long lapse  of 6/7 years from the date of registration of the impugned deeds, that is, beyond the stipulated  time of 3 years.

On the face of this undisputed position of law, the learned Advocate for the respondent finds it  difficult to contend that the trial court committed no wrong in holding that the pre-emption case under section 4 of the Partition Act was barred by limitation.  He, however,  sought to argue that perhaps the exact legal position on this point was not brought to the notice of the trial judge. It is by now fairly well settled that the impugned judgment cannot be knocked down on account of a particular wrong finding among the other well reasoned findings. In that view of the matter, I am not inclined to disturb with the impugned judgment.

Now, it remains for me to consider the contentions raised by Mr. A. K. M. Golam Mohiuddin, the learned Advocate for the respondents that the pre-emptor-petitioner  never approached before the Court with clean hands, who miserably  failed to prove that he needs the land under pre-emption badly.  

It appears that  the pre-emptor, Yeamin Nobi himself was examined as PW-1, who  denied the suggestion stating that  he never transferred a portion of his share  from  their undivided property  to  any 3rd party although,   OPW-1 clearly stated in his deposition that the pre-emptor himself transferred a portion of land from  his share to 3rd party stranger.  Drawing my attention to the certified copy of the deed No.2276 dated 16.4.88 and deed No.2287 dated 16.4.88,   Mr. A. K. M. Golam Mohiuddin candidly  submits that the pre-emptor, Yeamin Nobi transferred more than 10 decimals of land from his share by executing 2 registered deeds in favour of Kazi Akhter Banu and Kazi Abdul Murad, who are  stranger to the case land. 

From a combined reading  of those deeds, I find that the pre-emptor, Yeamin Nobi transferred a part of land from  his share  to 3rd party  long before filing of the instant pre-emption case under section 4 of the Partition Act  and as such,  it does not lie in the mouth of the pre-emptor petitioner that the land in question is a part of dwelling house of an undivided family or he needs more land badly. In view of this, I find considerable merit in the submission of the learned Advocate Mr. A. K. M. Golam Mohiuddin.

Mr. Md. Nurul Amin, the learned Advocate, however, at the end of the day having realized the difficulty submits that the case may be sent back on remand to the trial Court for deciding it on all points after fresh trial. In view of the evidence and materials on record,  I am of the view that if long lapse  of 16/17 years the case is remanded to the trial Court below for deciding afresh in giving opportunity to the parties to add further evidence that will not improve the ultimate result of the case. Therefore, I am unable to accept this last submission of Mr. Nurul Amin.

Here it may be mentioned that the decisions  reported in 15 BLT 18, 13 BLT 418, 15 DLR(SC) 120, 63 DLR(AD) 138, 11 DLR 355,  40 DLR(AD) 150, 53 DLR 256, AIR 1960 (Cal) 467, AIR 1985(Orissa) 137,  31 DLR(AD) 320, Volum-7 ADC 593, 6 MLR(AD) 46 and 65 DLR(AD) 82 as cited by Mr. Nurul Amin in support of his lengthy argument have no manner of application in the facts and circumstance of the case as the facts of the instant case are quite distinguishable from the facts of those cases.

On an overall consideration of the facts, circumstances and the materials on record  I find that the respondents’ basic objection to the maintainability of the pre-emption case mainly on two counts that (i) the land in question is not a part of an undivided family’s property and (ii)  the original  pre-emptor-petitioner neither mentioned  the schedule of the land nor given any  particulars of the disputed deeds in the original pre-emption application   are sound and,  I accordingly  hold that the pre-emption case itself was not maintainable.

In view of my discussions made in the foregoing paragraphs it is by now clear that the instant first miscellaneous appeal must fail.

In the result, the appeal is dismissed without any order as to cost. 

         Let a copy of this judgment along with the lower Court’s record be sent down at once.

         Ed.