High Court Division
(Civil Revisional Jurisdiction)
Bhabani Prashad
Singha J
Ismail Hossain .
………..Petitioner
vs
Hanif Mia and others
…………… Opposite partics
Judgment
July 21st, 2013
Transfer of Property Act (IV of 1882) Section 52
During pendency of a case no property can be transferred as per the provision of section 52 of the Act and that reconveyance made during pendency of a pre-emption proceeding cannot take away the right of pre-emption by the co-sharer. (15)
Golam Rabbani, Advocate-For the petitioner.
Khalilur Rahman, Advocate-For the Opposite Parties.
Judgment
This Rule was issued calling upon the opposite party No.1 to show cause as to why the impugned judgment and order dated 20-11-2008 passed by the learned Joint District Judge, 2nd Court, Lalmonirhat in Miscellaneous Appeal No. 15 of 2007 affirming the judgment and order dated 20-2-2007 passed by the learned Assistant Judge, Patgram, Lalmonirhat in Miscellaneous Case No.9 of 2005 for pre-emption 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 relevant for the purpose of disposal of this Civil Revision Case are as follows:
3. The pre-emptor-opposite party No.1 filed Miscellaneous Case No. 9 of 2005 for pre-emption of the case land.
4. The case of the pre-emptor is that the case land belonged originally to Pashar Uddin, Soleman Ali, Fashor Uddin and that SA record was prepared in their name and that Pashar Uddin died leaving behind the pre-emptor and the predecessor of the opposite party Nos. 3-10 namely, Fatima Khatun and thus the pre-emptor has become co-sharer by inheritance in the case holding and that the pre-emptor also purchased some land of the holding from some co-sharers on various dates and thus, he is also co-sharer by purchase in the case holding. The seller opposite party No.3 sold out the case land in favour of the pre-emptee by the case kabala dated 7-1-2004.
No notice was served to the pre-emptor in respect of the sale and that the pre-emptee purchaser took possession of the land on 8-6-2005. On that date the preemptor came to know about the case transfer and got certified copy of the case kabala on 26-4-2005 and filed the case under section 96 of the State Acquisition and Tenancy Act, 1950.
5. The opposite party No.3 contested the case by filing suit written objection.
6. The case of the opposite-party No.3 is that the case land originally belonged to Kashor Uddin, Soleman, Mozammel Haque and Khoder Uddin. Kashem Uddin died leaving behind 2 sons, the pre-emptor and the opposite party No.3 and 3 daughters, the opposite party Nos. 4-6.
Thus the opposite party No.3 has become a co-sharer by inheritance in the case holding. By opening separate holding he has been possessing the case land. The opposite party Nos. 1 and 2 took mortgage of the case land at a consideration of Taka 6,500. But he executed a kabala deed on 23-6-2004.
There was an agreement that the suit land would be returned when the same would be demanded by the opposite party No.3 and accordingly, the opposite party Nos. 2 and 3 returned the mortgage money on 20-6-2005. So, the opposite party Nos. 2 and 3 returned the case land by the kabala dated 28-6-2005. There is no cause of action of the pre-emption case. The case is liable to be missed.
7. After trial, the trial court allowed the Pre-emption Miscellaneous Case No. 09 of 2005 of 2006 by his judgment and order dated 25-4-2007 against which the opposite party No.3 preferred Miscellaneous Appeal No. 15 of 2007 which was disallowed vide judgment and order dated 20-11-2000.
8. Being aggrieved by and dissatisfied with the impugned judgment and order passed in Miscellaneous Appeal No.12 of 2007, the petitioner took this Civil Revision Case.
9. Advocate Mr Md Golam Rabbani representing the pre-emptee-petitioner submits that the courts below committed error of law resulting in an error in not finding that the case land has already gone back to its original owner; that both the courts below committed error of law resulting in an error in the decision failure of justice in not finding that the case deed was not a sale deed, rather, a mortgage deed and that by passing the impugned judgment and order, the appellate court below committed error of law resulting in an error in the decision occasioning failure of justice.
10. Advocate Mr Md Khalilur Rahman representing the pre-emptor-opposite party No.1 submits that the appellate court below rightly passed the impugned judgment and order; that there is no merit in the Civil Revision Case; that the impugned judgment and order warrants no interference by this court and that the Rule is liable to be discharged.
11. The only point to be decided in this case is whether the impugned judgment and order is tenable in the eye of law.
12. Heard the submissions of the learned Advocates and perused the record and materials on record.
13. In this Revision Case, the matters with regard to defect of parties and limitation are not required to be discussed inasmuch as these points are not agitated by the parties.
14. In this case, the main contention of the opposite party No.3 of the Miscellaneous Case No. 9 of 2005 for pre-emption in the way of the pre-emptor in getting the case land by way of pre-emption is the case kabala No. 3533 dated 3-6-2004 is no’ a sale deed, rather, it is a mortgage deed; that vide kabala No.3889 dated 28-6-2005, the opposite party No.1 transferred the case land to the seller, the opposite party No.3 and, as such, the pre-emptor cannot get the case land by way of pre-emption as per the provision of the Section 96 of the State acquisition and Tenancy Act. On perusal of the case kabala, it transpires that no where in the said Kabala it is stated that it is a mortgage deed. It is also not mentioned therein about returning the case land to the seller on receipt of the consideration money by the seller from the purchaser. The consideration money of the case kabala is Tk 6,500 whereas, the consideration money of the kabala dated 28-6-2005 is Taka 9,000. Had the kabala dated 28-6-2005 was executed in view of any mortgage, the consideration money thereof definitely would have been same as in the case kabala. In the said kabala as well nothing has been mentioned with regard to any mortgage.
The OPW 1 says in his cross that when the talks about mortgage took place in the house of the OPW 2 Md Noor Islam (Beai); that he cannot recollect as to on which date talks of mortgage took place; that nothing about mortgage has been stated in the case deed; that he cannot recollect as to on which date he returned Taka 6,500; that the return kabala was executed at a consideration money of Tk 6,500.
The statement of the OPW 2 as to the consideration money of the kabala dated 28-6-2005 is not correct in view of the fact that the consideration money of the said kabala is Taka 9,000. If the case kabala as per the claim of the opposite party No.3 was a mortgage deed, its consideration money and that of the kabala dated 28-6-2005 would have been same. The OPW 2 Md Noor Islam says in his cross that at the time of giving proposal for mortgage he was not present which falsifies the statement of the OPW 1 that in the house of the OPW 2 the discussion as regards mortgage took place.
In his evidence the PW 1, the pre-emptor categorically denies that case kabala dated 23-6-2004 is a mortgage deed. The PW 2 Md Abdul Mannan categorically says in his evidence that the opposite party Nos.1 and 2 possess the case land; that the opposite party No.3 does not possess the case land. If as per the kabala dated 28-6-2005, the case land was reconveyed to the opposite party No.3, he would have possessed the case land but he does not.
15. To this case the kabala dated 28-6-2005 was created after filing of Miscellaneous Case No.9 of 2005 for pre-emption. It is the established principle of law that during pendency of a case no property can be transferred as per the provision of Section 52 of the Transfer of Property Act and that reconveyance made during pendency of a pre-emption proceeding cannot take away the right of pre-emption by the co-sharer (References: 13 ELT (A D) at page 20).
16. In view of the discussion made here above, this court finds that the case kabala is an out and out sale deed and that the kabala dated 28-6-2005 is nothing but a colourable transaction created for the purpose of frustrating the pre-emption right of pr-emption.
17. Admittedly. the pre-emptor is a co-sharer by inheritance in respect of the case holding. The opposite party No.3 contends that the case holding being separated by mutation, the pre-emptor is no more a co-sharer in the case holding. But in respect of said mutation, the pre-emptee-opposite party filed no document which makes the claim of the opposite party No.3 baseless.
18. In the light of discussion made here above, the irresistible bindings of this Court is that the appellate court below rightly passed the impugned judgment and order and is tenable in the eye of law and the aforesaid judgment and order, the appellate court below has not committed any error of law resulting in any error in the said judgment and order occasioning any failure of justice which warrants no interference by this Court.
19. In the result, the Rule is discharged without any order as to costs.
20. The impugned judgment and order dated 20-11-2008 passed by the learned Joint District Judge, 2nd Court, Lalmonirhat in Miscellaneous Appeal No. 15 of 2007 is hereby upheld and confirmed.
Let the lower Court’s records along with a copy of this judgment be sent down at once.
