High Court Division
(Civil Revisional Jurisdiction)
Shiekh Abdul Awal J
Judgment
April 9th, 2014
Mohsin-al-Mehedi (Md)
and another …. Pre-emptee-Petitioners
Vs
Khukumoni Khatun and
another……..Pre-emptor-Opposite Parties
State Acquisition & Tenancy Act (XXVIII of 1951) Section 96
All the co-sharers must be impleaded to a preemption proceeding and when this mandate was not complied with the right of pre-emption conferred under Section 96 of the Act then it is not available. . ….. (20)
M Ashraf Ali, Advocate-For the Petitioners.
Zainul Abedin and Taj Mohammad Sheikh, Advocates-For the Opposite Party Nos.1 & 2
Judgment
This Rule was issued calling upon the opposite party Nos.1 & 2 to show cause as to why the judgment and order dated 8-2-2011 passed by the learned Joint District Judge, 1st Court, Bogra in Miscellaneous Appeal No. 225 of 2008 allowing the appeal and setting-aside the judgment and order dated 13-11-2008 passed by the learned Assistant Judge, Sherpur, Bogra in Pre-emption Case No.17 of 2004 disallowing the pre-emption should not be set-aside.
2. Relevant facts, in-short, are that on 18-9-2004 the opposite party Nos.1-2 as pre-emptors filed Pre-emption Case No. 17 of 2004 in the Court of the Assistant Judge, Sherpur, Bogra under Section 96 of the State Acquisition and Tenancy Act, 1950 for pre-empting the case land as described in the schedule of the application for pre-emption on the allegation that the vendor- opposite party Nos.3-5 without serving any notice upon them transferred the case land to the preemptee-opposite party Nos.1-2 (present petitioners), who are strangers to the case jote, the preemptors are co-sharers to the case jote and hence, the case on making the statutory deposit.
3. The vendee-opposite parties (present petitioners) resisted the pre-emption application by filing written statement denying all the material allegations made in the application stating, inter-alia. that the pre-emption case is not maintainable in its present form and manner inasmuch as the case is bad for non-joinder of necessary parties. ,
4. At the trial both the parties led evidence to prove their respective cases.
5. The learned Assistant Judge, Sherpur, Bogra after closing of the evidence and hearing argument of the parties by his judgment and order dated 13-11-2008 disallowed the pre-emption on the finding that the pre-emption proceeding was bad for non-joinder of necessary parties.
6. The unsuccessful pre-emptors, thereupon, preferred Misc. Appeal No.225 of 2008 before the learned District Judge, Bogra, which was eventually transmitted to the Court of Joint District Judge, 1st Court, Bogra for disposal, who by the impugned judgment and order dated 8-2-2011 allowed the appeal and set-aside the judgment of the trial Court below on the finding that in the facts and circumstance of the case the trial Court below committed illegality in holding that’ the pre-emption case was bad for non-joinder of necessary parties and the instant Revision application is directed against that judgment.
7. Mr M. Ashraf Ali, the learned Advocate appearing for the petitioners submits that admittedly a number of co-sharers were not impleaded in the pre-emption proceeding and, as such, the trial Court below was perfectly justified in disallowing the pre-emption on the clear finding that the pre-emption case was bad for non-joinder of necessary parties. He next submits that the intention of legislature according to provisions of Section 96 of the State Acquisition and Tenancy Act, 1950 is very clear that to shout the door of stranger but in this case it is apparent from the record that earlier on two occasions ‘the’ land in t; question was transferred to stranger purchasers while the present pre-emptor-opposite parties kept silent which alter the character and status of the pre-emptors.
8. Finally, Mr Ashraf submits that the impugned judgment is not a proper judgment of reversal and, as such, the same is liable to be set-aside.
9. Mr Zainul Abedin, the learned Advocate appearing for the pre-emptor-opposite parties
contested the Rule. He submits that during trial in spite of Court’s order the pre-emptee did not supply the name of the necessary parties in time and, as such, the Court of appeal below rightly came to a finding that the trial Court in the facts and circumstances of the case committed illegality in holding that the case was bad for defect of parties.
He further submits that the learned Joint District Judge was perfectly justified in setting aside the judgment of the trial court on the clear ‘ finding that the case was not bad for non-joinder of necessary parties and, as such, the same should not be disturbed.
10. Drawing support for his submission, the learned Advocate referred to a decision reported in 2006 BLD (AD) 53.
11. I have heard the learned Advocates for both the sides at length and perused the Revision application, judgments of two Courts below, deposition of witnesses and other materials on record. The main point for consideration is, as already , noticed, whether the Court of appeal below was justified in holding that the pre-emption case was not bad for defect of parties.
12. It appears that in the instant case the written objection was filed by the pre-emptee-petitioners contending, inter alia, that the case was not maintainable due to defect of parties, as many of the co-sharers by inheritance in the holding were omitted and the pre-emptees subsequently, supplied the names of the co-sharers beyond the date fixed for giving the names of the necessary parties.
13. In this connection I like to quote the material portion of the application dated 6-6-2006, which reads as follows :
†h mg¯Í e¨w³MY‡K cÿ Kwi‡Z nB‡e Zvnv‡`i bvg, avg I wVKvbv|
(K) †gvt byiæj Bmjvg, wcZv g„Z wiqvR DÏxb fu~Bqv
(L) †gvt jZxd †Rveevi (mK‡ji wcZv g„Z †gvdvRyj †Rveevi|)
(M) †gvt kvnRvgvj Ó
(N) †gvt Kvgvj Ó
(O) †gvt †ejøvj Ó
(P) †gvQvt †Mvjvcx wewe RI‡R evejy|
(Q) †gvQvt gvdzRv wewe RI‡R Rvjvj miKvi
(R) †gvQvt gv‡R`v wewe RI‡R Av: †Rveevi
(S) †gvQv t Uwc wewe RI‡R Avjvwgb|
(T) †gvt nvweei ingvb wcZv Avt Avjxg|
(U) †gvQvt iwngv LvZzb RI‡R Aveyj Kv‡kg|
(V) †gvt AveevQ Avjx wcZv `ywZqv †kL|
(W) kªx wbZvB P›` `vm wcZv iænx `vm|
14. On receipt of the said application the trial Court on the same day passd an order which reads as follows :
Ó6-6-2006 Bs A`¨ SD Gi Rb¨ w`b avh© Av‡Q| cÖv_©K nvwRiv `vwLj Kwiqv‡Q| 1/2 bs wjwLZ BP `vwLj Kwiqv‡Q Aci GKwU `iLv¯Í w`qv BP MÖnY Kwievi cÖv_©bv Kwiq‡Q| bw_ †ck Kiv nBj| †`wLjvg h_vmg‡q `iLv¯Í `vwLj bv Kivq cÖv_x© cÿ‡K 1,000 UvKv LiP cÖ`vb mv‡c‡ÿ 1/2 bs cÖwZc‡ÿi `vwLjv `iLv¯Í ïbvbx| cÖv_x©c‡ÿi Aci `iLv¯Í bw_¯’ ivLv †nvK|Ó
(To be continued)
15. It is found that the trial court by its order dated 9-6-2006 kept the prayer for acceptance of BP. on record inasmuch as the opposite party Nos. 1-2 did not deposit Taka 1,000 as cost.
16. The learned Assistant Judge on the facts of the case and on consideration of the legal position by his judgment and order dated 13-11-2008 disallowed the preemption on the finding which reads as follows :
ÒAÎ †gvKÏgvi gyj ÎæwU nB‡Z‡Q Bnv cÿ‡`v‡l evwiZ| †h‡nZz AvBbvbyhvqx cÖ‡qvRbxq cÿMY‡K wcÖ‡qgkb †gvKÏgvq cÿ Kiv mandatory Ges †Kvb †Kvb e¨w³‡K AÎ †gvKÏgvq cÿ Kiv DwPZ Zvnv cÖv_©Kc‡ÿi Áv‡bi g‡a¨ _vKv AvBbvbyhvqx AÎ †gvKÏgv iÿYxq bq Ges cÖvw_©Kcÿ AMÖµq Av‡`k cvB‡Z nK`vi b‡n|Ó
17. This being purely a finding of fact based on assessment of the evidence on record that the case was bad for non-joinder of necessary parties.
18. The Court of appeal below in its turn set-aside the judgment of the trial Court on the finding that the trial Court committed illegality in holding that the pre-emption case was bad for defect of parties.
19. As I have already noticed that in the present pre-emption proceeding all the co-sharers were not impleaded as parties. The proposition of law is by now well settled that omission to implead a co-sharer in the application renders the pre-emption application liable to be dismissed for defect of party. Therefore, I find no difficulty whatever in holding that the Court of appeal below was plainly wrong in setting-aside the judgment of the trial court on the ground that the pre-emption case was not bad for defect of party. The finding of the Court of appeal below on the point of defect of party, is, in fact, perverse being contrary to law and facts.
20. It is the requirement of law that all the Co-sharers must be impleaded to a preemption proceeding and when this mandate was not complied with the right of pre-emption conferred under Section 96 of the State Acquisition and Tenancy Act, 1950 is not available.
21. Another aspect of the case must not be overlooked. It is found from the record that petitioners themselves claimed co-sharers by purchase in the case jote as they have purchased 2 decimals of land in plot No. 400, pre-emptor as PW 1 himself admitted that the present petitioners are owners of plot No. 400 though, both the Courts below having failed to consider such admitted fact in accordance with law.
22. Further, at the end of the day the contention raised by Mr M Ashraf Ali, that the preemptors became co-sharers by purchase deed dated 18-1-1993 and thereafter, the case land was transferred to the vendor of the petitioners on 25-8-98 but the preemptors did not pray for pre-emption against that deed and thus, the pre-emptees have acquired the same rights of their vendor, the present pre-emption application is clearly barred by the principles of acquiescence and estoppels in the facts and circumstance of the case does not appear to be without any substance.
23. Here it may further be mentioned that the decision relied upon by the preemptor opposite parties has also 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 the cited case.
24. For the reasons stated above, I am inclined to hold that the learned Joint District Judge, 1st Court, Bogra seriously erred in law in passing the impugned judgment and order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice.
25. The Rule is, therefore, made absolute. The impugned judgment and order dated 8-2-2011 passed by the judgment and order dated 13-11-2008 passed by the learned Assistant Judge, Sherpur, Bogra in Pre-emption Case No. 17 of 2004 is restored.
(Civil Revisional Jurisdiction)
Shiekh Abdul Awal J
Judgment
April 9th, 2014
Mohsin-al-Mehedi (Md)
and another …. Pre-emptee-Petitioners
Vs
Khukumoni Khatun and
another……..Pre-emptor-Opposite Parties
State Acquisition & Tenancy Act (XXVIII of 1951) Section 96
All the co-sharers must be impleaded to a preemption proceeding and when this mandate was not complied with the right of pre-emption conferred under Section 96 of the Act then it is not available. . ….. (20)
M Ashraf Ali, Advocate-For the Petitioners.
Zainul Abedin and Taj Mohammad Sheikh, Advocates-For the Opposite Party Nos.1 & 2
Judgment
This Rule was issued calling upon the opposite party Nos.1 & 2 to show cause as to why the judgment and order dated 8-2-2011 passed by the learned Joint District Judge, 1st Court, Bogra in Miscellaneous Appeal No. 225 of 2008 allowing the appeal and setting-aside the judgment and order dated 13-11-2008 passed by the learned Assistant Judge, Sherpur, Bogra in Pre-emption Case No.17 of 2004 disallowing the pre-emption should not be set-aside.
2. Relevant facts, in-short, are that on 18-9-2004 the opposite party Nos.1-2 as pre-emptors filed Pre-emption Case No. 17 of 2004 in the Court of the Assistant Judge, Sherpur, Bogra under Section 96 of the State Acquisition and Tenancy Act, 1950 for pre-empting the case land as described in the schedule of the application for pre-emption on the allegation that the vendor- opposite party Nos.3-5 without serving any notice upon them transferred the case land to the preemptee-opposite party Nos.1-2 (present petitioners), who are strangers to the case jote, the preemptors are co-sharers to the case jote and hence, the case on making the statutory deposit.
3. The vendee-opposite parties (present petitioners) resisted the pre-emption application by filing written statement denying all the material allegations made in the application stating, inter-alia. that the pre-emption case is not maintainable in its present form and manner inasmuch as the case is bad for non-joinder of necessary parties. ,
4. At the trial both the parties led evidence to prove their respective cases.
5. The learned Assistant Judge, Sherpur, Bogra after closing of the evidence and hearing argument of the parties by his judgment and order dated 13-11-2008 disallowed the pre-emption on the finding that the pre-emption proceeding was bad for non-joinder of necessary parties.
6. The unsuccessful pre-emptors, thereupon, preferred Misc. Appeal No.225 of 2008 before the learned District Judge, Bogra, which was eventually transmitted to the Court of Joint District Judge, 1st Court, Bogra for disposal, who by the impugned judgment and order dated 8-2-2011 allowed the appeal and set-aside the judgment of the trial Court below on the finding that in the facts and circumstance of the case the trial Court below committed illegality in holding that’ the pre-emption case was bad for non-joinder of necessary parties and the instant Revision application is directed against that judgment.
7. Mr M. Ashraf Ali, the learned Advocate appearing for the petitioners submits that admittedly a number of co-sharers were not impleaded in the pre-emption proceeding and, as such, the trial Court below was perfectly justified in disallowing the pre-emption on the clear finding that the pre-emption case was bad for non-joinder of necessary parties. He next submits that the intention of legislature according to provisions of Section 96 of the State Acquisition and Tenancy Act, 1950 is very clear that to shout the door of stranger but in this case it is apparent from the record that earlier on two occasions ‘the’ land in t; question was transferred to stranger purchasers while the present pre-emptor-opposite parties kept silent which alter the character and status of the pre-emptors.
8. Finally, Mr Ashraf submits that the impugned judgment is not a proper judgment of reversal and, as such, the same is liable to be set-aside.
9. Mr Zainul Abedin, the learned Advocate appearing for the pre-emptor-opposite parties
contested the Rule. He submits that during trial in spite of Court’s order the pre-emptee did not supply the name of the necessary parties in time and, as such, the Court of appeal below rightly came to a finding that the trial Court in the facts and circumstances of the case committed illegality in holding that the case was bad for defect of parties.
He further submits that the learned Joint District Judge was perfectly justified in setting aside the judgment of the trial court on the clear ‘ finding that the case was not bad for non-joinder of necessary parties and, as such, the same should not be disturbed.
10. Drawing support for his submission, the learned Advocate referred to a decision reported in 2006 BLD (AD) 53.
11. I have heard the learned Advocates for both the sides at length and perused the Revision application, judgments of two Courts below, deposition of witnesses and other materials on record. The main point for consideration is, as already , noticed, whether the Court of appeal below was justified in holding that the pre-emption case was not bad for defect of parties.
12. It appears that in the instant case the written objection was filed by the pre-emptee-petitioners contending, inter alia, that the case was not maintainable due to defect of parties, as many of the co-sharers by inheritance in the holding were omitted and the pre-emptees subsequently, supplied the names of the co-sharers beyond the date fixed for giving the names of the necessary parties.
13. In this connection I like to quote the material portion of the application dated 6-6-2006, which reads as follows :
†h mg¯Í e¨w³MY‡K cÿ Kwi‡Z nB‡e Zvnv‡`i bvg, avg I wVKvbv|
(K) †gvt byiæj Bmjvg, wcZv g„Z wiqvR DÏxb fu~Bqv
(L) †gvt jZxd †Rveevi (mK‡ji wcZv g„Z †gvdvRyj †Rveevi|)
(M) †gvt kvnRvgvj Ó
(N) †gvt Kvgvj Ó
(O) †gvt †ejøvj Ó
(P) †gvQvt †Mvjvcx wewe RI‡R evejy|
(Q) †gvQvt gvdzRv wewe RI‡R Rvjvj miKvi
(R) †gvQvt gv‡R`v wewe RI‡R Av: †Rveevi
(S) †gvQv t Uwc wewe RI‡R Avjvwgb|
(T) †gvt nvweei ingvb wcZv Avt Avjxg|
(U) †gvQvt iwngv LvZzb RI‡R Aveyj Kv‡kg|
(V) †gvt AveevQ Avjx wcZv `ywZqv †kL|
(W) kªx wbZvB P›` `vm wcZv iænx `vm|
14. On receipt of the said application the trial Court on the same day passd an order which reads as follows :
Ó6-6-2006 Bs A`¨ SD Gi Rb¨ w`b avh© Av‡Q| cÖv_©K nvwRiv `vwLj Kwiqv‡Q| 1/2 bs wjwLZ BP `vwLj Kwiqv‡Q Aci GKwU `iLv¯Í w`qv BP MÖnY Kwievi cÖv_©bv Kwiq‡Q| bw_ †ck Kiv nBj| †`wLjvg h_vmg‡q `iLv¯Í `vwLj bv Kivq cÖv_x© cÿ‡K 1,000 UvKv LiP cÖ`vb mv‡c‡ÿ 1/2 bs cÖwZc‡ÿi `vwLjv `iLv¯Í ïbvbx| cÖv_x©c‡ÿi Aci `iLv¯Í bw_¯’ ivLv †nvK|Ó
(To be continued)
15. It is found that the trial court by its order dated 9-6-2006 kept the prayer for acceptance of BP. on record inasmuch as the opposite party Nos. 1-2 did not deposit Taka 1,000 as cost.
16. The learned Assistant Judge on the facts of the case and on consideration of the legal position by his judgment and order dated 13-11-2008 disallowed the preemption on the finding which reads as follows :
ÒAÎ †gvKÏgvi gyj ÎæwU nB‡Z‡Q Bnv cÿ‡`v‡l evwiZ| †h‡nZz AvBbvbyhvqx cÖ‡qvRbxq cÿMY‡K wcÖ‡qgkb †gvKÏgvq cÿ Kiv mandatory Ges †Kvb †Kvb e¨w³‡K AÎ †gvKÏgvq cÿ Kiv DwPZ Zvnv cÖv_©Kc‡ÿi Áv‡bi g‡a¨ _vKv AvBbvbyhvqx AÎ †gvKÏgv iÿYxq bq Ges cÖvw_©Kcÿ AMÖµq Av‡`k cvB‡Z nK`vi b‡n|Ó
17. This being purely a finding of fact based on assessment of the evidence on record that the case was bad for non-joinder of necessary parties.
18. The Court of appeal below in its turn set-aside the judgment of the trial Court on the finding that the trial Court committed illegality in holding that the pre-emption case was bad for defect of parties.
19. As I have already noticed that in the present pre-emption proceeding all the co-sharers were not impleaded as parties. The proposition of law is by now well settled that omission to implead a co-sharer in the application renders the pre-emption application liable to be dismissed for defect of party. Therefore, I find no difficulty whatever in holding that the Court of appeal below was plainly wrong in setting-aside the judgment of the trial court on the ground that the pre-emption case was not bad for defect of party. The finding of the Court of appeal below on the point of defect of party, is, in fact, perverse being contrary to law and facts.
20. It is the requirement of law that all the Co-sharers must be impleaded to a preemption proceeding and when this mandate was not complied with the right of pre-emption conferred under Section 96 of the State Acquisition and Tenancy Act, 1950 is not available.
21. Another aspect of the case must not be overlooked. It is found from the record that petitioners themselves claimed co-sharers by purchase in the case jote as they have purchased 2 decimals of land in plot No. 400, pre-emptor as PW 1 himself admitted that the present petitioners are owners of plot No. 400 though, both the Courts below having failed to consider such admitted fact in accordance with law.
22. Further, at the end of the day the contention raised by Mr M Ashraf Ali, that the preemptors became co-sharers by purchase deed dated 18-1-1993 and thereafter, the case land was transferred to the vendor of the petitioners on 25-8-98 but the preemptors did not pray for pre-emption against that deed and thus, the pre-emptees have acquired the same rights of their vendor, the present pre-emption application is clearly barred by the principles of acquiescence and estoppels in the facts and circumstance of the case does not appear to be without any substance.
23. Here it may further be mentioned that the decision relied upon by the preemptor opposite parties has also 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 the cited case.
24. For the reasons stated above, I am inclined to hold that the learned Joint District Judge, 1st Court, Bogra seriously erred in law in passing the impugned judgment and order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice.
25. The Rule is, therefore, made absolute. The impugned judgment and order dated 8-2-2011 passed by the judgment and order dated 13-11-2008 passed by the learned Assistant Judge, Sherpur, Bogra in Pre-emption Case No. 17 of 2004 is restored.
