Mosammat Rupia Aktar and another Vs. Md. Ayet Ali and others 2017 (2) LNJ 219

Case No: Civil Revision No. 1549 of 2011

Judge: Soumendra. J.

Court: High Court Division,

Advocate: Mr. Md. Ashraful Alam, Mr. Md. Rafiqul Islam,

Citation: 2017 (2) LNJ 219

Case Year: 2017

Appellant: Mosammat Rupia Aktar and another

Respondent: Md. Ayet Ali and others

Subject: Civil Law

Delivery Date: 2017-11-15

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

 

Soumendra Sarker, J

Judgment on

23.03.2017

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Mosammat Rupia Aktar and another

.. Pre-emptor-Opposite party-Petitioners

-Versus-

Md. Ayet Ali and others

... Pre-emptee-Petitioner-Opposite parties

State Acquisition and Tenancy Act (XXVIII of 1951)

Section 96

At the time of filing of the case for the Pre-Emption under section 96 of the State Acquisition and Tenancy Act, 1951 as amended by Act 34 of 2006 having come into force on 20.09.2006, only co-sharer by inheritance has locustandi to prefer pre-emption Miscellaneous Case. As the petitioner referred as pre-emptor was co-sharer by purchase (stranger) in the case jote, he is not entitled to have the land pre-empted by preferring Pre-Emption miscellaneous case under section 96 of the State Acquisition and Tenancy Act, 1951.       . . . (13, 14 and 17)

Code of Civil Procedure (V of 1908)

Section 151

Inherent jurisdiction of the court to prevent the abuse of the process of the court is very much applicable in each and every case; where it is found that the proceeding which is pending before a court of law is a futile effort and its ultimate result is zero the Court by exercising the inherent power can prevent the abuse of the process of the Court.                                                . . .(18)

18 DLR 709, 716 and 13 BLD (AD) 56 ref.

Mr. Md. Ashraful Alam, Advocate

. . . For the petitioners.

Mr. Md. Rafiqul Islam, Advocate

. . . For the opposite parties

JUDGMENT

Soumendra Sarker, J: The Rule was issued calling upon the Opposite Party No.1 to show cause as to why the judgment and order dated 06.03.2011 passed by the learned Judge, Jananirapatta Bighnakari Aparadh Daman Tribunal, Comilla in Civil Revision No.06 of 2011 (59/2010) reversing the order dated 09.06.2010 passed by the learned Senior Assistant Judge, Sadar, Comilla in Pre-emption Miscellaneous Case No.579 of 2008 should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.            The facts leading to the issuance of the Rule in a nutshell can be stated thus, that the present petitioners as pre-emptors filed a pre-emption miscellaneous case under section 96 of the State Acquisition and Tenancy Act, 1951 in the Court of learned Senior Assistant Judge, Sadar, Comilla against the Pre-emptee-Opposite party No.1 and others contending inter alia that the case jote is the ejmali homestead wherein the petitioner and other co-sharers are residing with their family members. The opposite party No.2 transferred the case land in favour of the pre-emptee without serving any notice and without any information to the petitioners. For getting the land pre-empted the pre-emptors filed the pre-emption miscellaneous case within time. The further case of the pre-emptors is such that the purchaser-pre-emptee is a stranger to the case jote.

3.            The contrary case of the pre-emptee-opposite party in short is such that the case is barred by law as it is not maintainable and the pre-emptors on false allegation filed the case.

4.            During pendency of the case the pre-emptee after making his appearance filed a written objection alleging that under section 96 of the State Acquisition and Tenancy Act, 1951 under which the pre-emptors have instituted the original pre-emption miscellaneous case is not maintainable and that is why the pre-emption miscellaneous application is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure along with other grounds cited therein. The learned trial Judge vide his order dated 24.05.2010 rejected the application for rejection of the pre-emption miscellaneous petition under Order VII Rule 11 of the Code of Civil Procedure and thereafter, by an order dated 09.06.2010 opined that the pre-emption miscellaneous case is maintainable in its present form.

5.            Being aggrieved the pre-emptee preferred a revisional application in the court of learned District Judge, Comilla being No.06 of 2011 (59/2010) which was transmitted to the learned judge (District Judge) Jananirapatta Bighnakari Aparadh Daman Tribunal, for hearing and disposal and the learned Judge (District Judge), Jananirapatta Bighnakari Aparadh Daman Tribunal and Special District Judge, Comilla by the impugned judgment and order dated 06.03.2011 allowed the revisional application and set aside the orders of the learned trial Judge.

6.            Being aggrieved by and dissatisfied with the impugned judgment and order of the 1st revisional Court the pre-emptor-petitioners with leave of this Court have preferred a 2nd revisional application under section 115(4) of the Code of Civil Procedure and obtained the Rule.

7.            During hearing of this Rule Mr. Md. Ashraful Alam, the leaned Advocate appeared on behalf of the petitioners while Mr. Md. Rafiqul Islam the learned Advocate appeared on behalf of the opposite parties.

8.            The learned Advocate appearing on behalf of the petitioners submits that the learned trial court during passing the orders dated 24.05.2010 and 09.06.2010 committed no illegality; but the learned 1st revisional court illegally allowed the revisional application without proper appreciation of law and facts of the case. The learned Advocate further submits that the orders of the learned trial court was appealable but the learned District Judge entertaining the revisional application committed an error of law resulting in an error in the decision occasioning failure of justice. The learned Advocate lastly submits that the Special District Judge, Comilla was without jurisdiction in passing the impugned judgment and order and as such the Rule is liable to be made absolute.

9.            As against the aforesaid submissions of the learned counsel for the petitioners the learned Advocate appearing on behalf of the opposite parties opposing the Rule controverted the grounds of the revisional application and the argument advanced from the side of the learned Advocate for the petitioners and submits that the learned 1st revisional court was quite empowered to entertain the revisional application and committed no error of law resulting in an error in the decision occasioning failure of justice. The learned Advocate further submits that in fact; the original pre-emption miscellaneous case was not maintainable under section 96 of the State Acquisition and Tenancy Act, 1951 and the pre-emptors had no right to institute the original pre-emption miscellaneous case under section 96 of the State Acquisition and Tenancy Act inasmuch as admittedly they were not the co-sharers by inheritance in the case jote and the learned 1st revisional court after proper appreciation of the connected law apprised that the matter is to be decided under the purview of law which is prevailing at present and as it is found that, the petitioners have no locus standi to file such application for pre-emption. The learned trial court had no other alternative but to dismiss the original case. The learned Advocate also submits that the case kabalas admittedly were executed on 07.07.2008 and 26.12.2007 and both the two cases for pre-emption were filed on 30.12.2008 which is long after the amendment of Section 96 of the State Acquisition and Tenancy Act, 1951. Thereafter; the Purchaser-Pre-emptee-Opposite party knowing about the institution of the original cases filed the application under Order VII Rule 11 of the Code of Civil Procedure for rejection of plaint, but while the learned trial court illegally disallowed the said application for rejection of plaint the learned District –Judge entertaining the Civil Revision set-aside the orders of the trial court forthwith for ends of justice. The learned Advocate lastly submits that both the two cases were barred by law and thereby the learned 1st revisional court was quite legal and justified in holding the view that the cases are liable  to be dismissed.

10.        I have heard the submissions of the learned Advocates of both sides and have gone through the impugned judgment and order along with the connected papers.

11.        On perusal of the connected papers it transpires that the present petitioners for having the case land pre-empted filed the pre-emption miscellaneous case under section 96 of the State Acquisition and Tenancy Act, 1951 against the pre-emptee on 30.12.2008. It is the specific case of the pre-emptors that they are the co-sharers by purchase in the case holding and by virtue of that capacity they have filed the pre-emption miscellaneous cases against the stranger purchaser-pre-emptee.

12.        It further appears that in fact the learned District Judge Comilla entertained the Civil Revision against an order on maintainability of the original case; which was a revisonal order and not appealable.

13.        Having gone through the case records it further transpires that the case kabalas were executed on 07.07.2008 and 26.12.2007. The learned 1st revisional court during disposal of the revisional application held that, after institution of the original miscellaneous case the pre-emptee challenging the locus standi of the pre-emptors filed an application for rejection of plaint under Order VII rule 11 of the Code of Civil Procedure. In the said application it was cited by the pre-emptee that the pre-emptors have claimed themselves the co-sharers by purchase in the case jote; but save and except the co-sharers by inheritance nobody is entitled to have the land pre-empted under the amended provision of Pre-emption law.

14.        On meticulous Consideration of the papers I find that the learned 1st revisional court i.e. the learned Judge(District Judge), Jananirapatta Bighnakari Aparadh Daman Tribunal, Comilla rightly held that at the time of filing of the cases for the Pre-Emption   under the provision of relevant law only the co-sharer by inheritance have locustandi to prefer pre-emption miscellaneous case under section 96 of the State Acquisition and Tenancy Act, 1951.

15.        It is a fact; that the law of pre-emption incorporated in section 96 of the State Acquisition and Tenancy Act, 1951 has been amended and it has come into effect from 20.09.2006.

16.        The law of pre-emption under section 96 of the State Acquisition and Tenancy Act has been amended by Act XXXIV of 2006. The former section 96, after  has been amended by the act of law and the right of pre-emption under the said section 96 after the above mentioned amendment runs as follows:

   “96. Right of Pre-emption-(1) If a portion or share of a holding of a raiyat is sold to a person who is not a co-sharer tenant in the holding, one or more co-sharer tenants of the holding may, within two months of the service of the notice given under section 89, or, if no notice has been served under section 89, within two months of the date of the knowledge of the sale, apply to the Court for the said portion or share to be sold to himself or themselves:

Provided that no application under this section shall lie unless the applicant is-

(a) a co-sharer tenant in the holding by inheritance; and

(b) a person to whom sale of the holding or the portion or share thereof, as the case may be, can be made under section 90:

Provided further that no application under this section shall lie after expiry of three years from the date of registration of the sale deed.”

17.        Having regard to the cited provision of law obviously it is noticed that the learned Special Judge, Comilla appreciating the position of law decided the merit of the revisional application and inasmuch as it has become clear that excepting the co-sharer by inheritance the person having other status who is other than co-sharer by inheritance is not in a position to qualify himself for institution of pre-emption case.

18.        I find that, keeping ahead the submissions advanced form the side of the learned Advocates for the parties the learned 1st revisional court relying upon some decisions of this Court reported in 18 DLR 709 and 716 invoking the inherent power of the Court and 8 BLC 144 with regard to applicability of section 141 of the Code of Civil Procedure in the proceeding under section 96 of the State Acquisition and Tenancy Act and 13 BLD (AD)56 decided the merit of the revisional application in the affirmative rightly

19.        In this context; the decisions referred to from the sides of the learned counsels of the parties to the case go to show that it is a decided matter that the inherent jurisdiction of the court to prevent the abuse of the process of the court is very much applicable in each and every case; where it is found that the proceedings which is pending before a court of law is a futile effort and its ultimate result is zero. The fact remains that in the instant case as I have come across that the learned 1st revisional court rightly and legally held in consultation with the relevant papers that in case of further proceedings of the original cases there would be mere abuse of the process of the court and as such the learned trial court ought to have dismissed the case pending therein under his inherent power of section 151 of the Code of Civil Procedure.

20.        Having regard to the facts, circumstances and discussions referred to above I have every reason to inclined such a view that the learned District Judge committed no wrong or pre-judicial act in holding the view that the original case for getting the case land pre-empted is not maintainable and as it is barred by law and for that reason the same is liable to be dismissed on the ground of maintainability instantly without any further delay, to prevent abuse of the process of the court  and as such the Rule have got no merit to succeed.

21.        In the result, the Rule is discharged without any order as to costs. The judgment and order dated 06.03.2011 passed by the learned Judge (District Judge), Jananirapatta Bighnakari Aparadh Daman Tribunal, Comilla in Civil Revision No.06 of 2011 (59 /2010) reversing the order dated 09.06.2010 passed by the learned Assistant Judge, Sadar, Comilla in Pre-emption Miscellaneous Case No.579 of 2008 is hereby affirmed.

22.                   Communicate the judgment and order at once.

Ed.