Appellate Division :
(Civil)
Md Abdul Wahhab Miah J
Md Imman Ali J
AHM Shamsuddin Choudhury J
Hazi Mohammad Abdul Malek
…………………Appellant
vs
Jamal Hossain and others….
…………….Respondents
Judgment
July 28th, 2015
State Acquisition & Tenancy Act (28 of 1951)
Section 96
The pre-emptive right to purchase can accrue to the pre-emptor only after the case land is sold to the pre-emptee, not before that and that the pre-emptive right does not exist before the sale, and therefore, such a right is not-enforceable before the sale. .. …. (11)
Fazaruddin vs Mayezuddin, 44 DLR (AD) 62 ref.
Awlad Ali Senior Advocate, instructed by Syed Mahbubar Rahman Advocate-on-Record-For the Appellant (in both cases).
AKM Jaglul Haider Agric, Advocate, instructed by Madhu Malati Chowdhury Barua, Advocate-on-Record-For Respondent No.1 (in both cases).
None Represented-Respondent Nos. 2-3.
Judgment
Md Imman Ali J : These two civil appeals by leave are directed against the judgment and order dated 28-11-2006 passed by a Single Bench of the High Court Division in Civil Revision Nos. 1005 and 1006 of 1995, making the Rules absolute. The appeals, being based on similar facts and law points, were heard together and are disposed of by this single judgment.
2. The appellant before us challenges the judgment and the order passed by the High Court Division by which it reversed the judgment and order dated 30-1-1995 passed by the District Judge, Barisal in Miscellaneous Appeal No. 104 of 1993, reversing the order dated 15-8-1993 passed by the Assistant Judge, Mehendigonj in Miscellaneous Case No. 28 of 1992, rejecting the miscellaneous case.
3. The appellant before us, as pre-emptor filed the above case invoking Section 96 of the State Acquisition and Tenancy Act 1950, for pre-emption of the case land on the averments that he is a co-sharer of the case Khatian by purchase of 67 decimals of land and the case holding originally belonged to Monesshor, Hari Narayan, Haripada, Hari Das, Hari Shadhan, and Harilal. Monesshor separated his Khatian No. 212. Haridas having died as a celibate, his share devolved to his brothers. Hari Narayan on 20-3-1986 by registered Kabala transferred his 8 decimals land to the appellant and Hari Narayan also transferred his remaining land to the opposite parties Nos. 8-13 and 14-26 and Hari Pada and Hari Shadhan also transferred their land to opposite parties No. 10-13 and others. Harilal also transferred his share to opposite parties No. 14, 18-20 and Arun Kumar. Barun Kumar on 27-2-1986 also transferred 20 decimals land to the appellant and Barun Kumar also transferred on 27-2-1986, 20 decimals land to the appellant. Arun and Barun also transferred their remaining land to Jalil Rari and Khorshed Alam and both of them transferred their shares to Rajia Begum and Shamsul Haque Molla and then Rajia transferred 16 decimals land on 19-7-1990 to the appellant, and opposite party No. 32 transferred 5 decimals land to opposite party No.4.
4. Shamsul Haque Molla died, leaving behind 2 sons and 3 daughters and his wife, the opposite parties No. 2-7 and also father Mafizuddin Molla, who transferred his 3 decimals land to the appellant and thus the appellant is owning and possessing 67 decimals land in khatian No. 200 on mutating his name and paying rent to the government.
5. On 7-6-1992, the appellant came to know from one Ashrab Ali Hawlader, in presence of A Qader Sarder that opposite party No.1 purchased land in the khatian from opposite parties Nos. 2-3 and thereafter he obtained copy of the impugned kabala on 16-6-1992 which was registered on 12-2-1992 beyond his knowledge, and hence the instant pre-emption case.
6. The case of the pre-emptee, the respondent No.1 herein, is that the recorded owners sold the land of suit SA Khatian No. 200 to Arun Kumar, Barun Kumar and others, and thereafter said Arun and Barun sold the same to Jalil and Khorshed, who sold the same to Shamsul and Rajia, and on Shamsul’s death, his 2 sons, 3 daughters and wife got the same and thereafter the opposite parties Nos. 2 and 3 who got the case land in their saham, sold the same to the pre-emptee vide kabala dated 12-2-1992. Before the execution of the said kalala, the pre-emptee and his vendors made an offer to the preemptor to purchase the case land, but he declined. The pre-emptee, after purchase of the same, developed the land and erected residential house thereon and has been owning and possessing the same and living there and he is also a co-sharer of the case land and he has no other land.
7. The trial Court dismissed the case on the ground of defect of parties and also estoppels as the appellant refused to purchase the land.
8. On appeal, however, the appellate Court allowed the appeal. The pre-emptee then moved the High Court Division by way of a civil revision, with success as the High Court Division made the Rule absolute.
9. The pre-emptor then filed Civil Petition for Leave to Appeal Nos. 683 and 684 of 2007.
10. Leave was granted to consider the following submissions of the learned Advocate for the petitioner in both the petitions.
“For that the High Court Division fell in error of law in not holding that the pre-emptive right of purchase of the case land can accrue to the pre-emptor only after the case land is sold to the pre-emptee by its owner and not before that and the preemptive right is not enforceable before sale and the above proposition of law is supported by the case of Fazaruddin vs Mayezuddin, 44 DLR (AD) 62.”
11. As we took up the appeals, together, Mr Awlad Ali, the learned Senior Advocate for the appellant argued that the High Court Division erred in not holding that the pre-emptive right to purchase can accrue to the pre-emptor only after the case land is sold to the pre-emptee, not before that and that the pre-emptive right does not exist before the sale, and therefore, such a right is not enforceable before the sale.
12, Mr AKM Jaglul Haider Afric, the learned Advocate for the respondent in both the cases, however, argued that the pre-emptor himself admitted that he refused to buy the land as it was owned by a minor, and buying a minor’s property could cause problem, and, as such, the doctrine of estoppels applied. He also argued that the case was time barred and that the appellate Court was wrong to hold that the case was filed within 4 months from the date of registration, on the erroneous finding that the kabala was registered on 22-3-1992, though it was ex facie registered on 11-2-1992, as also admitted by the pre-emptor himself. He also argued that the pre-emptee is a co-sharer in the khatian and that the case is bad for defect of parties.
13. The High Court Division founded is reasoning on the fact that that the pre-emptor admittedly refused to buy a minor’s property to avoid complication. In this respect, the Single Bench of the High Court Division was wrong because the legal position, as envisaged by Section 96 of the State Acquisition and Tenancy Act, 1950 is that right to pre-emptive purchase accrues only after the property is sold, not before that, and that pre-emptive right does not exist, and is not enforceable before the sale, which principle is supported by the decision of this Division in Fazaruddin vs Mayejuddin, 44 DLR (AD) 62.
14. On the question of limitation, the legal position is that the period begins not from the date of execution, but from the date it appears in the volume. So, the case was not time barred either.
15. The facts in Civil Appeal No. 336 of 2008 are similar and the law involved is also same, hence both stand on equal footing and must rise or fall together.
For the reasons assigned, both the appeals are allowed, without any order as to costs. The impugned Judgment is here by set aside.
(Civil)
Md Abdul Wahhab Miah J
Md Imman Ali J
AHM Shamsuddin Choudhury J
Hazi Mohammad Abdul Malek
…………………Appellant
vs
Jamal Hossain and others….
…………….Respondents
Judgment
July 28th, 2015
State Acquisition & Tenancy Act (28 of 1951)
Section 96
The pre-emptive right to purchase can accrue to the pre-emptor only after the case land is sold to the pre-emptee, not before that and that the pre-emptive right does not exist before the sale, and therefore, such a right is not-enforceable before the sale. .. …. (11)
Fazaruddin vs Mayezuddin, 44 DLR (AD) 62 ref.
Awlad Ali Senior Advocate, instructed by Syed Mahbubar Rahman Advocate-on-Record-For the Appellant (in both cases).
AKM Jaglul Haider Agric, Advocate, instructed by Madhu Malati Chowdhury Barua, Advocate-on-Record-For Respondent No.1 (in both cases).
None Represented-Respondent Nos. 2-3.
Judgment
Md Imman Ali J : These two civil appeals by leave are directed against the judgment and order dated 28-11-2006 passed by a Single Bench of the High Court Division in Civil Revision Nos. 1005 and 1006 of 1995, making the Rules absolute. The appeals, being based on similar facts and law points, were heard together and are disposed of by this single judgment.
2. The appellant before us challenges the judgment and the order passed by the High Court Division by which it reversed the judgment and order dated 30-1-1995 passed by the District Judge, Barisal in Miscellaneous Appeal No. 104 of 1993, reversing the order dated 15-8-1993 passed by the Assistant Judge, Mehendigonj in Miscellaneous Case No. 28 of 1992, rejecting the miscellaneous case.
3. The appellant before us, as pre-emptor filed the above case invoking Section 96 of the State Acquisition and Tenancy Act 1950, for pre-emption of the case land on the averments that he is a co-sharer of the case Khatian by purchase of 67 decimals of land and the case holding originally belonged to Monesshor, Hari Narayan, Haripada, Hari Das, Hari Shadhan, and Harilal. Monesshor separated his Khatian No. 212. Haridas having died as a celibate, his share devolved to his brothers. Hari Narayan on 20-3-1986 by registered Kabala transferred his 8 decimals land to the appellant and Hari Narayan also transferred his remaining land to the opposite parties Nos. 8-13 and 14-26 and Hari Pada and Hari Shadhan also transferred their land to opposite parties No. 10-13 and others. Harilal also transferred his share to opposite parties No. 14, 18-20 and Arun Kumar. Barun Kumar on 27-2-1986 also transferred 20 decimals land to the appellant and Barun Kumar also transferred on 27-2-1986, 20 decimals land to the appellant. Arun and Barun also transferred their remaining land to Jalil Rari and Khorshed Alam and both of them transferred their shares to Rajia Begum and Shamsul Haque Molla and then Rajia transferred 16 decimals land on 19-7-1990 to the appellant, and opposite party No. 32 transferred 5 decimals land to opposite party No.4.
4. Shamsul Haque Molla died, leaving behind 2 sons and 3 daughters and his wife, the opposite parties No. 2-7 and also father Mafizuddin Molla, who transferred his 3 decimals land to the appellant and thus the appellant is owning and possessing 67 decimals land in khatian No. 200 on mutating his name and paying rent to the government.
5. On 7-6-1992, the appellant came to know from one Ashrab Ali Hawlader, in presence of A Qader Sarder that opposite party No.1 purchased land in the khatian from opposite parties Nos. 2-3 and thereafter he obtained copy of the impugned kabala on 16-6-1992 which was registered on 12-2-1992 beyond his knowledge, and hence the instant pre-emption case.
6. The case of the pre-emptee, the respondent No.1 herein, is that the recorded owners sold the land of suit SA Khatian No. 200 to Arun Kumar, Barun Kumar and others, and thereafter said Arun and Barun sold the same to Jalil and Khorshed, who sold the same to Shamsul and Rajia, and on Shamsul’s death, his 2 sons, 3 daughters and wife got the same and thereafter the opposite parties Nos. 2 and 3 who got the case land in their saham, sold the same to the pre-emptee vide kabala dated 12-2-1992. Before the execution of the said kalala, the pre-emptee and his vendors made an offer to the preemptor to purchase the case land, but he declined. The pre-emptee, after purchase of the same, developed the land and erected residential house thereon and has been owning and possessing the same and living there and he is also a co-sharer of the case land and he has no other land.
7. The trial Court dismissed the case on the ground of defect of parties and also estoppels as the appellant refused to purchase the land.
8. On appeal, however, the appellate Court allowed the appeal. The pre-emptee then moved the High Court Division by way of a civil revision, with success as the High Court Division made the Rule absolute.
9. The pre-emptor then filed Civil Petition for Leave to Appeal Nos. 683 and 684 of 2007.
10. Leave was granted to consider the following submissions of the learned Advocate for the petitioner in both the petitions.
“For that the High Court Division fell in error of law in not holding that the pre-emptive right of purchase of the case land can accrue to the pre-emptor only after the case land is sold to the pre-emptee by its owner and not before that and the preemptive right is not enforceable before sale and the above proposition of law is supported by the case of Fazaruddin vs Mayezuddin, 44 DLR (AD) 62.”
11. As we took up the appeals, together, Mr Awlad Ali, the learned Senior Advocate for the appellant argued that the High Court Division erred in not holding that the pre-emptive right to purchase can accrue to the pre-emptor only after the case land is sold to the pre-emptee, not before that and that the pre-emptive right does not exist before the sale, and therefore, such a right is not enforceable before the sale.
12, Mr AKM Jaglul Haider Afric, the learned Advocate for the respondent in both the cases, however, argued that the pre-emptor himself admitted that he refused to buy the land as it was owned by a minor, and buying a minor’s property could cause problem, and, as such, the doctrine of estoppels applied. He also argued that the case was time barred and that the appellate Court was wrong to hold that the case was filed within 4 months from the date of registration, on the erroneous finding that the kabala was registered on 22-3-1992, though it was ex facie registered on 11-2-1992, as also admitted by the pre-emptor himself. He also argued that the pre-emptee is a co-sharer in the khatian and that the case is bad for defect of parties.
13. The High Court Division founded is reasoning on the fact that that the pre-emptor admittedly refused to buy a minor’s property to avoid complication. In this respect, the Single Bench of the High Court Division was wrong because the legal position, as envisaged by Section 96 of the State Acquisition and Tenancy Act, 1950 is that right to pre-emptive purchase accrues only after the property is sold, not before that, and that pre-emptive right does not exist, and is not enforceable before the sale, which principle is supported by the decision of this Division in Fazaruddin vs Mayejuddin, 44 DLR (AD) 62.
14. On the question of limitation, the legal position is that the period begins not from the date of execution, but from the date it appears in the volume. So, the case was not time barred either.
15. The facts in Civil Appeal No. 336 of 2008 are similar and the law involved is also same, hence both stand on equal footing and must rise or fall together.
For the reasons assigned, both the appeals are allowed, without any order as to costs. The impugned Judgment is here by set aside.
