Muktar Hossain and others Vs. A Matin Sarker and others

Case No: Civil Revision No. 4398 of 2002.

Judge: MA Rashid,

Court: High Court Division,,

Advocate: Jafor Alim Khan,,

Citation: 59 DLR (2007) 116

Case Year: 2007

Appellant: Muktar Hossain and others

Respondent: A Matin Sarker and others

Subject: Property Law,

Delivery Date: 2007-01-29

Muktar Hossain and others Vs. A Matin Sarker and others
59 DLR (2007) 116
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
MA Rashid J
Muktar Hossain and others……. Petitioners
A Matin Sarker and others……. Opposite-Parties

January 29, 2007.
State Acquisition and Tenancy Act (XXVIII of 1951)
Section 95A & 96 (10)(d)
There is no scope to accept mechanically the agreement and sale deed together to constitute a mortgage without excluding all probabilities of creating a post-date agreement to defeat the right of preemption.
Lawyers involved:
Jafor Alim Khan, Advocate—For the Petitioner.
Not Represented—the Opposite Parties.
Civil Revision No. 4398 of 2002.
MA Rashid J.- The pre-emptors obtained the Rule upon making a revision application under section 115(1) of the Code of Civil Procedure against judgment and order dated 8-7-2002 passed by Joint District Judge, Court No. 1 at Munshiganj in Miscellaneous Appeal No. 58 of 2000, which affirmed the order of the trial Court dismissing the prayer for preemption.

2. Petitioners made an application under section 96 of the State Acquisition and Tenancy Act, 1950 (hereinafter referred to as the Act) for pre­emption as owners holding land contiguous to the land transferred by the predecessor of opposite party No. 4(Ka) to 4(Cha) and opposite party No. 5 to opposite party Nos. 1 to 3 by a deed of sale dated 8-­4-1999.

3. Opposite party Nos. 1 to 3 opposed the application by filing a written objection contending that the prayer for preemption was prohibited under section 96(10)(d) of the State Acquisition and Tenancy Act, 1950 since the transfer was, in fact, a mortgage as the opposite party Nos. 1 to 3 on the same date of impugned deed of sale executed an agreement agreeing to reconvey the land if the vendors would return back the price money within five years.

4. On the party pleadings, three issues including the one as to whether the application for preemption was barred under section 96(10)(d) of the Act were settled.

5. Trial Court found that the application was not bad for defect of parties. But without entering into the merit of the case, the Court on the basis of an agreement found that the transaction was a mortgage within the meaning of section 95 A of the Act and was accordingly, barred under section 96-(10)(d) of the Act. On appeal therefrom at the instance of the petitioners, the appellate Court dis­missed the appeal and affirmed the view of the trial Court by impugned order.

6. By filing an affidavit-in-opposition, Mr. Jafor Alim Khan, learned Advocate for the peti­tioner, read the agreement and submitted that in view of the facts that the agreement was unregis­tered and executed by opposite party Nos. 1 and 3 only and not by opposite party No. 2, both the Courts below erred in law in accepting such agree­ment as valid and contemporaneous to the sale deed to find the transaction a mortgage.

7. He also submitted that the alleged agreement was created to defeat preemption otherwise the land would have been reconveyed to the sellers by this time, which is more than five years.

8. I have perused the record.

9. Mr. Md. Azizul Haque, Advocate appeared on behalf of the opposite party No. 1 only. But at the hearing of the Rule, he was not found present to defend the impugned order in spite of his name printed in the daily cause list. Nor did anyone appear for him or on behalf of said opposite party No. 1.

10. Original sale deed was not produced by the contesting opposite parties. No explanation was however, furnished for not producing the original sale deed. I have perused the copy of the sale deed dated 8-4-1999 adduced by both the parties and marked Exhibit 1 and 'Ka'. The sale deed clearly reads to be an out-and-out sale. Nowhere in the deed, I find any indication, far less any intention of the seller to get back the land or to treat it as a mortgage.

11. I have also examined the alleged agreement. The alleged agreement appears to have been written on a stamp of Taka 150 on a plain cartridge paper. The agreement appears to be signed by opposite party Nos. 1 and 3 only and not by opposite party No. 2 Arafat Hossain. If it is said that Arafat Hossain was a minor and so he did not sign, then execution of the agreement by other two purchasers would not bind Arafat Hossain. Result being such agreement cannot be said to be a valid agreement on behalf of all the three purchasers, opposite party Nos. 1 to 3, to reconvey. Absence of execution of the alleged agreement by or on behalf of Arafat Hossain wholly escaped the notice of the Courts below.

12.The trial Court, on the deposition of wit­nesses of purchasers that the price was quoted low, stamp of the agreement was purchased day before execution and same date on both sale deed and agreement were executed in the same seating, took the view that the transaction was not an out-and-out sale. The appellate Court appears to have affirmed such finding mechanically.

13. The material issue was, as to what the par­ties really intended to achieve by such transaction. Had it been a mortgage the sellers would be the real beneficiaries and found interested in defeating the right of preemption. But none of the sellers appeared and contested the case. None of the Courts below did find the intention of the parties in the transaction. In the aforesaid facts and circum­stances, it is very difficult for me to arrive at the conclusion that the sellers and purchasers really intended a mortgage.

14. It must be noted that the defence taken by the purchasers in this case is not a new one. Such a defence is nowadays seen taken in nearly all such cases of preemption to defeat the right of pre­emption. It is also not difficult to prove an unregis­tered post-sale agreement to appear to be executed on the date of sale. The Subordinate Courts are there­fore, required to ascertain the intention of the parties in the transaction in the surrounding circumstances and to guard not to be swayed away mechanically by such cheap evidence. There is no scope to accept mechanically the agreement and sale deed together to constitute a mortgage without excluding all proba­bilities of creating a post-date agreement to defeat the right of pre-emption.

15. In such view of the matter, I am unable to accept the conclusion of the Courts below that the agreement which does not appear to be genuine has transformed the sale into a mortgage and such decision has no doubt occasioned failure of justice.

16. In the result, the Rule is made absolute without however, any order as to cost. Impugned judgment and decree affirming those of the trial Court in rejecting the application for preemption are hereby set aside.

17. Trial Court is directed to decide the application for preemption afresh on merit as to whether the petitioners are entitled to preempt, if necessary, on further evidence that may be adduced by the parties.

18. Send down the records at once.