Waliullah and others Vs. Abdul Wahab and others, 3 LNJ (2014) 819

Case No: Civil Revision No. 5786 of 2000

Judge: Md. Abu Tariq,

Court: High Court Division,,

Advocate: Mahbubey Alam,Mr. A. J. Mohammad Ali,,

Citation: 3 LNJ (2014) 819

Case Year: 2014

Appellant: Waliullah and others

Respondent: Abdul Wahab and others

Subject: Pre-emption,

Delivery Date: 2012-08-02

HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Md. Abu Tariq, J.

Judgment on
02.08.2012
 
  Waliullah being dead his heirs
1(a) Hasan Sahid Babu and others
...Defendant- Petitioners.
-Versus-
Abdul Wahab
...Plaintiff-Opposite parties.
Abidullah
...Non-contesting defendant
Proforma-opposite-parties.
 

Partition Act (IV of 1893)
Section 4
The object of this legislation is to preserve the sanctity of an undivided dwelling house against the intrusion of a stranger on the basis of purchase of a portion of such a dwelling house from a co-sharer or some of the co-sharers. This was obliviously to safeguard the interest of the existing co-sharer, co-sharers against forcing entry into an undivided dwelling house by a stranger by providing an opportunity to buy up the share purchased by a stranger thereto. This is indeed a beneficial legislation for the co-owners of an undivided homestead or dwelling house against the onslaught of an outsider. . . . (22)

Partition Act (IV of 1893)
Section 4
Instant application under Section 4 of partition Act does not show any definite identification of the dwelling house that the same covers the specific area of the suit plot or khatian and from reading of the application it does not appear that a specific and definite case on dwelling house was either made out. On the other hand it discloses that there are many shops and restaurant in the suit plot and many of the co sharers have got no constant residing in the suit plot. In one hand the suit land is claimed to be a dwelling house and on the other hand it is claimed to be commercial property including restaurant and shops in occupation of tenants years after years and on such fact cannot invoke the said Section 4 of the Partition Act. . . .  (28)
 
 
Sayesta Bibi Vs. Juma Sha, 42 DLR (AD) 53 ref.
 
Mr. A. J. Mohammad Ali, Advocate
. . .For the petitioners.

Mr. Mahbubey Alam, Advocate with
Mr. Md. Mozammel Hossain, Advocate.
. . . For the opposite party.

Civil Revision No. 5786 of 2000
 
JUDGMENT
Md. Abu Tariq, J:
 
This civil revision arises out of the order dated 05.09.2000 passed by the learned Sub-ordinate Judge, 3rd Court, Dhaka passed in Miscellaneous Case No. 725 of 1989 arising out of Title Suit No. 17 of 1975.

Short facts for disposal of the Rule is that the predecessor of the present petitioner Nos. 1 (a)-1 (g) filed Miscellaneous Case No. 725 of 1989 on 04-08-1989 before the learned Subordinate Judge, 3rd Court, Dhaka under Section 4 of the Partition Act arising out of the original Title Suit No. 17 of 1975, filed by opposite party No. 1 for partition.

The Title Suit No. 17 of 1975 was decreed in preliminary form by the learned Subordinate Judge on 23.06.1979 and plaintiff opposite party No. 1, got saham in respect of .11 acre of land and Advocate commissioner was appointed on 05-09-1979. Against the said decree dated 23-06-1979, the defendant-petitioner preferred First Appeal No. 01 of 1980 and the High Court Division affirmed the preliminary decree on 22-03-1984 with modification that the plaintiff-opposite party No,1 would get a saham of .1062½ acre of land instead of .11 acre and in Civil Appeal No. 02 of 1985 challenging the judgment in F. A. the  Appellate Division affirmed the judgment and decree of the Honourable High Court Division. 

While the position was such the instant Miscellaneous Case No. 725 of 1989 was filed stating, inter alia, that the predecessor of the petitioners, named, Waliullah and the opposite party Nos. 2-8 of the original application are members of the dwelling house of the joint undivided family. The present opposite party No. 1 has constructed a one storied building at the east side of the suit plot and the building at the east side of the suit plot and the building is a commercial concerned and a restaurant. The petitioner also made other 11 semi-pacca rooms which were let out to different commercial units including, SWASH Corporation and Abul Watch. The opposite party Nos. 3-8 of the original application have constructed semi-pacca homestead at the adjacent to Sadar Road which were let out to Defendant Nos. 7 to 17 of the original Title Suit No. 17 of 1975. The opposite party No. 1 claims that he has purchased about .11 acre of land from opposite party No. 2 by two documents dated 25.02.1974 and 05.02.1974 and opposite party No. 1 had no construction in his purchased land in the suit plot. In the suit plot No. 1162 there were 4 semi-pacca rooms up to 1966 and after 1966 the petitioner constructed buildings at his own cost having approved plan from D.I.T. The opposite party No. 1 is a stranger purchaser and not a member of the undivided family. The possession of opposite party No. 1 would be a threat to the privacy of the members of the family in respect of their prestige, life, privacy, pardah and peaceful possession. In order to prevent the unexpected illegal trespass of opposite party No. 1 the petitioner filed the instant case under Section 4 of the Partition Act.

The opposite party No. 1 contested the case by filing a written objection denying all material allegation made in the application contending, inter alia, that the petitioner to delay and frustrate the decree upheld upto the Appellate Division filed the instant case. The instant case is not maintainable without a specific undivided family dwelling house. The suit land earlier was vacant land in which later on many constructions were made and gradually became a commercial area. Admittedly the said area is a commercial and not dwelling but and has been let out to different persons including Defendants 7-17 of the original suit. The petitioner himself has also started a hotel business in the name of ‘Aloka Hotel.’ The original partition suit was long ago decreed on 23-06-1979 which was affirmed by the Hon’ble Appellate Division.   The opposite party never intended to harass any member of the family of the petitioner. The suit land is not a dwelling house rather it is a commercial area which is let out to different persons and it also includes hotel and there is no legal reason to claim the commercial area as a dwelling house belonging to the members of an undivided family. The opposite party No.1 has got a shop and show room in a part of suit and also let out some rooms to the tenants. The case being false is liable to be dismissed.

The learned trial court framed 2(two) issues as to whether the petitioner is entitled to get the disputed land under Section 4 of the Partition Act and whether the prayer of  the petitioner can be allowed.

In course of trial the petitioner examined 3(three) witnesses and opposite party No 1 examined 1 witness to prove their respective cases.

The learned trial Court upon perusal of the pleadings, hearing the parties and considering the evidence dismissed the case by order dated 05-09-2000.

The learned trial court found that the suit land adjoining to North-South Road is a commercial area and there is no reason to apprehend about destruction in privacy and pardah of the family members of the petitioner specially when there is a restaurant conducted by the son of the petitioner and there is no legal reason to invoke Section 4 of the Act in the given circumstances.

However, several facts and litigation were there and ultimately, the learned Sub-ordinate Judge, 3rd Court, Dhaka rejected the prayer under Section 4 of the Partition Act holding that;
"উপরোওু উভয় পক্ষদয় ও দালিলিক স্বাক্ষ্য পর্যালোচনা করিলে  দেখা যায় ১নং প্রতিপক্ষ দরখাসতকারীর ভাইয়ের নিকট হইতে এুয় করিয়া মালিক দখলকার হইয়া বাটোয়ারা মোকদ্দমা দায়ের করিয়া ডিএিু প্রাপ্ত হয়। যাহা পরবর্তীতে সর্বোচ্চ আদালত মহামান্য সুপ্রীমকোর্ট পর্যমত বহাল থাকে। দরখাসতকারী ১নং প্রতিপক্ষ আদালতে বহালকৃত রায় এর সুফল হইতে বচ্ঞিত করার জন্যই মূলতঃ অত্র মোকদ্দমা দায়ের করিয়াছেন। ড~ভয় পক্ষের স্বাক্ষ্যে এবং নালিশী ভূমির অবসহা বিচার বিশ্লেষন করিলে  দেখায় যায় নর্থ সাইথ  রোড সংলগ্ণ যাহা বানিজ্যিক এলাকা হিসাবে ধরিয়া লওয়া যায়। এখানে ১নং প্রতিপক্ষ তাহার ডিএিুকৃত সম্পত্তিতে থাকা অবসহায় করিলে দরখাসতকারী বা তাহার সমতানাদিদের পর্দার ক্ষতি হওয়ায়  কোন কারন নাই। দরখাসতকারীর  ছেলেই একটি রেষ্টুরেন্ট করিয়াছেন।"

As against the same, the petitioner preferred the instant revisional application and obtained the  Rule on 14-12-2000.

It is to be noted Syed Mohammad Monirullah. son of Alhaj Syed Tofazzal Ahmed of 155/A Madrasa Bhaban, Hazari Lane, Chittagong-4000 at present 8/2-1 Purana Paltan Syed Nazrul Islam Sharani as applicant filed an application for leave to proceed with the revision in place of opposite party No.3 Shamim Akter alias Rosy under Order 22, Rule 10 of the Code of Civil Procedure stating, that he has purchased the share of opposite party No.3 by a registered deed No. 3669 dated 18-07-2005 and thus she exhausted her share and since she has no subsisting interest and her share devolved upon the application who got right, title and interest on that from 18-07-2005 and for ends of justice be allowed to take legal steps.

Perused the application filed by Syed Mohammad Monirullah, the representative of the opposite party No.3 Sharmim Akter @ Rosy praying for leave to proceed with this revision on behalf of the opposite party No. 3. Heard the learned Advocate for the applicant, no objection raised by any party and for end of justice I am inclined to allow the application of the applicant to represent the opposite party No. 3 as prayed for.
Accordingly, application to represent the opposite party No. 3 by applicant is allowed.

Pursuant to the service of the Rule the learned Advocate Mr. Mahbubey Alam and Mr. Md. Mozammel Hossain entered appearance on behalf of the opposite party while the learned Advocate Mr. A. J. Mohammad Ali appearing on behalf of the petitioner.

The learned Advocate for the petitioner submits that the learned trial court committed an error of law resulting in an error in such order occasioning failure of justice in dismissing the Miscellaneous Case No. 725 of 1989 upon misreading and Non-consideration of material evidence on record. The share of the dwelling house belonging to an undivided family of the petitioner since being transferred to the opposite party No. 1, who is none but a stranger-purchaser only. It was the duty of the court to allow the case filed under Section 4 of the partition Act to protect the family from the unexpected entry and possession of the opposite party No.1. as the land was sold to stranger purchaser opposite party No.1, the dwelling house is owned by an undivided family and the petitioner undertakes to buy the share sold to opposite party No.1 but the learned court below failed to appreciate this aspect of the case and wrongly dismissed the same thus the Rule may be made absolute.

The learned Advocate on behalf of opposite party No.1 submits that the learned trial court upon proper perusal of the pleadings as well as appreciation of evidence, particularly PW-3 and the application rightly dismissed the case since the material ingredient that the subject-matter must be a dwelling house belonging to an undivided family is unfounded in the pleading and evidence. The learned court below committed no error of law occasioning failure of justice in dismissing the case. The petitioner failed to prove that suit property is an undivided homestead, in the application it is asserted that there is homestead and also commercial installation in the circumstances the application under Section 4 is misconceived and a device to delay the decree in  partition.

He further submits that the pleadings and evidence show that there is no existence of any joint undivided family to construe the case of dwelling house within the meaning of Section 4 of the Partition Act. In paragraph 3 and 5 of the original application the petitioner himself admitted that the opposite party No.1 has got no construction in the suit plot thus it transpires that the land purchased by opposite party No. 1 was never part of the dwelling house as claimed by the petitioner and it has not been proved that the transferred land forms part of the homestead and no attempt was made to prove the same nor Abidullah was claimed to be a member of alleged joint family.

He further submits that the original application does Not disclose definite identification of the dwelling house as to the quantum of land covering such dwelling house appertained to such plot and khatian number in order to make the distinction as to whether the land sold by opposite party No.2 opposite party No.1 is how and if connected to the dwelling house specially when it is admitted in the application and evidence that there are many shops let out to different tenants. The petitioner maintains Aloka Hotel and the son of the petitioners is conducting a restaurant and it is not the case of the petitioner that the suit plot only contains a dwelling house.

He lastly submits that according to Section 4 of the Partition Act the most essential condition among the 4 conditions that there must be a dwelling house and the same shall belong to an a dwelling house and the same shall belong to an undivided family since having not been proved and unfounded in evidence the application in the present case under Section 4 does not lie and must fail.

Heard the learned advocates, perused the findings of the impugned order, pleadings and evidence and other materials on record.

It appears that Section 4 of the Partition Act was enacted to afford a special opportunity to a co-sharer of an undivided homestead or dwelling house against a stranger purchaser for buying up his share through the Court. The object of this legislation is to preserve the sanctity of an undivided dwelling house against the intrusion of a stranger on the basis of purchase of a portion of such a dwelling house from a co-sharer or some of the co-sharers. This was obliviously to safeguard the interest of the existing co-sharer, co-sharers against forcing entry into an undivided dwelling house by a stranger by providing an opportunity to buy up the share purchased by a stranger thereto. This is indeed a beneficial legislation for the co-owners of an undivided homestead or dwelling house against the onslaught of an outsider.

The object of this legislation is reasonable and it is quite consonance with the principle of equity, justice and good conscience. Since in the instant case the plaintiff petitioners opted to purchase the share of the purchaser in the undivided homestead in question immediately after the purchase of the same by the stranger defendant, we are of the view that the proper question to determine whether the property is dwelling hut or not when the petitioner plaintiff ostensibly opted to buy up the share of the stranger purchaser in the undivided dwelling house but it-appears that the property in question is not a dwelling house belonging to on undivided family. This principle of law enunciated by their Lordships in  the case of Sayesta Bibi –versus Juma Sha reported in 42 DLR (AD) 53 fully applies to the facts and circumstance of the present case and we are bound to be in respectful agreement with the view taken therein.

Proper safeguard have been provided for the exercise of the statutory discretion. The partition Act also confers the valuable right of the pre-emption on a co-sharers. Besides, under its provisions, a stranger who has purchased a share in an unclaimed dwelling house and seeks partition, can be compelled to sell his share to the members of the family who are the owners of the rest of the house, and this prevents the instruction of the stranger into the circle of the co-owners and thus preserves the santity of the family dwelling house.

Relief under Section 4 of the Partition Act is available to an original co-sharers of the dwelling house of an undivided family as Sub-Section 1 of Section 4 runs as follows:
“Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is Not a member of such family and such transferee sues for partition, the court shall, if any member of the family being a share-holder shall undertake to buy the share of such manner as it thinks fit an direct the sale of such share to such share-holder, and may give all necessary and proper directions in that behalf.”

From reading of the above provision of law, the pleading and evidence of P. W. 1 it appears that defendant Nos. 2-17 of the original suit are admittedly the tenants under the petitioner and P. W. 2 stated that the suit land is situated adjacent to the pavement adjoined to North-South Road. P. W. 3 stated in chief that the petitioner lives in a separate building with his family. In paragraph 2 of the application it is disclosed that the suit land is not a dwelling house but includes many shops and restaurant.

Dwelling house in Section 4 includes the land and appurtenances which are ordinarily and reasonably necessary for its enjoyment and thus it includes garden, courtyard, orchard but a commercial public area can not become a part of the dwelling house, The expression “dwelling house belonging to an undivided family” appearing in Section 4 has been borrowed form Section 44 of the Transfer of Property Act and bears the same meaning, a commercial business place cannot be termed as a dwelling house under Section 4 of the Partition Act.

It is admitted and apparent on record that instant application under Section 4 of partition Act does not show any definite identification of the dwelling house that the same covers the specific area of the suit plot or khatian and from reading of the application it does not appear that a specific and definite case on dwelling house was either made out. On the other hand it discloses that there are many shops and restaurant in the suit plot and many of the co sharers have got no constant residing in the suit plot. In one hand the suit land is claimed to be a dwelling house and on the other hand it is claimed to be commercial property including restaurant and shops in occupation of tenants years after years and on such fact cannot invoke the said Section 4 of the Partition Act.

The learned trial court has arrived at a correct decision upon proper appreciation of pleading and evidence that the case of dwelling house is not proved in evidence and the property is a commercial one. Thus there is nothing to interfere with the impugned order.

I find no substance in the submission made by the learned advocate for the petitioners in this Rule. The learned trial Court committed no error of law occasioning failure of Justice in dismissing the case and the impugned order does not call for any interference. The learned advocate for the petitioner could not show any misreading and non-consideration of material evidence affecting the merit of the case.  Thus I find no merit in the Rule.

Accordingly, the Rule is discharged without any order as to cost. Stay granted at the time of issuance of Rule stands vacated. Connected C. R. No. 1226 of 2000 and C. R. No. 4673 have already been disposed on 08.3.2003 and 13.3.2008 respectively.

The order dated 05-09-2000 passed by the learned Subordinate Judge, 3rd Court, Dhaka passed in Miscellaneous Case No. 725 of 1989 is hereby affirmed.

Send down the lower Court’s record.

Ed.