HEADING OF JUDGEMENT IN ORIGINAL SUIT/CASE
District: Rajshahi
In the Court of the Assistant Judge, Mohonpur, Rajshahi
Present: Senior Assistant Judge
Sunday, October 31, 2021
Other Class Suit No. 24/2013 (Pre-emption)
In the presence of........
And having stood for consideration to this day, the Court delivered the following judgment: This is an application filed under Mohammedan law for getting the lands by way of pre-emption as described in the schedule to the application.
The plain in the nutshell:
The suit property described in schedule 'A' is the disputed land of this suit. The R.S. Recorded tenants of the disputed R.S. khatian no. 100 were Mekur Pathan being ten annas, thirteen gondas, one kora and one kranti and Bibizan Nessa being five annas, six gondas, two koras and two kranties. Thereafter, Mekur Pathan died leaving one son, the plaintiff, two daughters and a wife defendant nos. 02-04 respectively and they got the respective lawful shares to the land of their predecessor. Thereafter, Bibizan Nessa died leaving behind a daughter defendant no. 05 namely Motizan Bewa. As such, the plaintiff is the co-sharer by inheritance to the suit land, i.e. he is a shafi-i-sharik to the suit land. Moreover, the plaintiff bears the next two characteristics, i.e. shafi-i-khalit and shafi-i-jar. The defendant No. 01 has no title to a single inch to the suit land. As such, he is a stranger to the suit land. He is not at all shafi of any kind to the suit land in any way.
Defendant No. 01 is the stranger to the suit lands. Suddenly, on 16.02.2013 in the morning, defendant No. 01 came to the suit land revealed that defendant No. 02 sold the disputed land to him by deed No. 383 dated 03.02.2013 beyond the knowledge of the plaintiff. Hearing this news, the plaintiff became very surprised and instantly stood up and frequently claimed the disputed land-based on pre-emption under Mohammedan Law in presence of the present local people. Then in presence of the local people, the plaintiff told defendant No. 01 to execute and register a sale deed of the said disputed land in favor of the plaintiff taking the deed value. Nevertheless, defendant No. 01 refused to do so. It is claimed that defendant No. 01 or 02 did not give notice about the sale to the plaintiff. The plaintiff was totally unknown about the sale of the disputed land. The sale in between the parties that is in between vendor and purchaser was done very secretly. The plaintiff did not know of the matter of sale till they revealed the matter on 16.02.2013. Then, the plaintiff collected the certified copy of the said disputed deed on the same day i.e. on 17.02.2013, and became certain about the collusive sale. Thereafter, the plaintiff is filing this suit for pre-emption under Mohammedan Law of the land in question.
The plaintiff also claims that the suit land is very essential for the plaintiff. The plaintiff has been in possession over a part of the suit lands of the R.S. plot no. 578 that is over the plot in question. The plaintiff and his family members are residing there on the suit land making their doweling houses for more than 60 years. There lies the grave of the father of the plaintiff and some other relatives of the plaintiff and a bamboo clam over the suit lands. Therefore, the suit is necessary for the plaintiff to get back by way of pre-emption under Mohammedan. The plaintiff performed the legal formalities like, "Talab-iMoasibat" and "Talab-i-Ishad". The plaintiff is interested to get back the disputed land at the price of the said deed or as the court deems proper. Under this situation, the plaintiff claims that he is entitled to get back the disputed land by way of pre-emption under Mohammedan law.
Written Statement in brief:
On the other hand, defendant No. 01 contested the case by filing written objections denying the material averments made in the pre-emptors’ petition. He contended, inter alia, that the very petition is legally untenable, barred by limitation, and hit by a defect of parties. The contesting defendant stated that he purchased some lands in the case jote scheduled from defendant No. 02 who requested and made known all the co-sharers, including the petitioner, about the sale prior to the sale is accomplished. But, no one except the defendant. No. 01 expressed willingness to purchase the same and took possession over case jote scheduled as such after the purchase was done. However, it was also expressed in the written statement that he is now willing to compromise the case with the petitioner and want to take back the consideration money deposited as such and thus, the petitioner could get back the case lands as they prayed for.
Issues:
Considering the petitions and written objections of the parties, the issues are fixed with modifications for discussions in the following way:
1. Whether the Suit is maintainable in the present form and manner.
2. Whether the suit is barred by limitation.
3. Whether the suit is bad for defect of parties.
4. Whether the plaintiff is entitled to pre-empt the suit land.
5. Whether the petitioner may get relief as prayed for.
Discussions and the Decision
In proof of the claims, the plaintiff examined himself as PW. 01 on behalf of himself; adduced oral witnesses examined as PW. 02-03, and produced some documents marked as exhibit: 1-04. On the other side, the defendant side examined himself as DW 01 and produced no documentary evidence on his behalf.
Issue No. 2:
The issue at hand is whether the case is barred by limitation. The plaintiff claims that the cause of action arose firstly on 16.02.2013 AD while the defendant No. 01 firstly coming into the disputed land revealed about the disputed sale of the land in front of the plaintiff and thereafter, on 17.02.2013 while the plaintiff obtained the certified copy of the disputed deed.
As per article 10, 1st schedule, the 1908 Limitation Act, a pre-emption suit is to be filed within one year of the purchaser taking possession of the property, or otherwise, within one year of the registration of the instrument of sale. So, a suit for pre-emption of this kind under Mohammedan Law will not be barred if it is filed within one year from the date of transfer of possession. The PW 01 stated both in examination-in-chief and cross-examination that the possession in the suit land is transferred to defendant No. 01 after the sale is made. On perusal of the materials on record, it vividly appears that the suit is brought within one year of the purchaser’s alleged taking possession of the property in question. Conversely, the defendant did not prove anything contrary to it. In view of the above propositions of law and facts, it is, therefore, found that the suit has been filed within the period of time prescribed in law. Hence, this issue is decided in favor of the plaintiff.
Issue No. 3:
The issue at hand is whether the suit is bad for the defect of parties. All the co-shares are necessary parties in a pre-emption case. In a pre-emption proceeding, all co-sharers must be impleaded as parties to the proceedings. Provisions for impleading parties are mandatory and not a directory; because the cause of action for pre-emption of any transfer accrues to those all who are entitled to file an application for pre-emption against the transferee. This right is not absolute but subject to the right of other co-sharers. So, in order to get relief by way of pre-emption, the other interested persons must be impleaded by the applicant to enable the Court to adjudicate the claim of the respective parties completely; and the relief cannot be given in the absence of such parties. The Omission did not absolve the pre-emptor of her mandatory duty to implead their by ascertaining necessary particulars. So, the omission of a necessary party is vitiating and fatal to pre-emption cases.
On perusal of the case record, it appears before the Court that with regard to the plea of defect of parties for the instant case, the defendant’s pleading neither produced any discourse as to the omission of a necessary party nor proved the same with any unimpeachable testimony. For ‘the omission of parties is to be pointed out at the earliest point of time by the contesting defendant, any failure to take such recourse is here considered fatal to them. Surprisingly, the plaintiff in his cross-examination said that some co-sharers in the RS Plot No. 578 is left out, but later on, he clarified that RS plot No. 578 is also included in the RS khatian No. 47 and 116, which are not included in the schedule to the plaint. RS khatian No. 47 and 116 are marked exhibited as 04. Accordingly, considering exhibit No. 04 and the deposition given by the PW. 01, it is found that the suit is free from the defect of parties. Hence, this point is also decided in favour of the plaintiff.
Issues No. 1, 4 & 5:
Right of pre-emption is known in Muslim Law as 'SHUFA'. It is the right, which the owner of a share in the immovable property possesses to acquire another's share in immovable property for the price for which it has been sold to another person. The right of SHUFA can be claimed by three different classes of persons and one of them is co-sharer ('shafe-e-sharik'), the other two classes are those, who claim the right by way of being owner of adjoining property. The Mohammedan Law relating to demand before filing a suit for pre-emption is of a highly technical nature. It is stated in the Principles of Mohammedan Law by Mulla (16th Edn.) that the talab-i-mowasibal is spoken of as the first demand and the talab-i-ishad as the second demand. The third demand consists of the institution of suit for pre-emption. Both the talabs are conditions precedent to the exercise of the right of pre-emption.
Firstly, this right arises only out of valid, complete and bona fide sale. The suit deed (Ext: 02) advocates for the plaintiff in this regard. So, the plaintiff’s right of pre-emption vividly arises in the suit so far as the deed in question is solely concerned for the transaction was a bona fide, valid and complete sale. As aforesaid, both the talabs (demands) are conditions precedent to the exercise of the right of pre-emption. On perusal of the PW 01-03 and RS khatian No. 100 (Ext: 01), it becomes a decisive fact that the plaintiff was co-sharer (shafe-e-sharik), and thus, had a right of pre-emption in the suit land. The defendant as DW-01 also admitted in his evidence that the plaintiff is co-sharer (shafe-e-sharik) to the suit holding. Therefore, it is decided that the plaintiff has the right to claim the property on his own standing to be pre-empted for the defendant, who is a stranger to the suit land.
Secondly, it is time to examine whether the plaintiff had exercised this pre-empting right by way of making two talabs (demands) to exercise the right of SHUFA called as talab-i-mowasibat, when the first demand was spoken, and the talab-i-ishhad as second demand. Both the Talabs are conditions precedent and found to be exercised in accordance with law. So, the next point resounds that strict compliance with all the requirements of the two demands which are necessary before a pre-emptor can succeed in a suit for pre-emption under the Mahommedan Law. The first talab (demand) should be made as soon as the fact of the sale is known to the claimant. Apart from the pleading, the plaintiff is found to prove on record that the first talab was also made without any delay and that the second talab was also made in the presence of two witnesses. He is also found to demonstrate the third demand by way of the institution of the present suit of pre-emption.
In fact, the Mohammedan Law relating to demand before filing a suit for pre-emption is of a highly technical nature. Any unreasonable or unnecessary delay will be construed as an election not to pre-empt, particularly, on the question of the promptness and avoidance of delay with regard to the first demand. The materials on record do not show that the plaintiff made any unreasonable or unnecessary delay, which will be construed as an election not to pre-empt. Although the defendant as DW 01 stated that no sharer of the suit land was willing to purchase the suit land, such a plea is not substantiated by evidence on record.
The materials on record thus show that there is sufficient and unimpeachable evidence to on the fact that the plaintiff had made 'talab-i-mowasibat' and thereafter, without any unreasonable delay, 'talab-i-ishhad' in the presence of two witnesses. There are other highly technical rules about the presence of witnesses and the nature of the evidence that they should give with regard to the second demand. This requirement is also found to be met with sufficient evidence on record. On the other hand, the defendant's side led no convincing evidence on the sheer fact that the plaintiff did not make the requisite talabs required to enforce the right of pre-emption. As a result, nothing contrary evidence is available on record to such propositions. Accordingly, it is held that where there has been no such delay, for which the pre-emptor was not entitled to sustain his claim for pre-emption.
Moreover, on perusal of the materials on record, it appears that the plaintiff also claims that the suit land is very essential for the plaintiff. The plaintiff has been in possession over a part of the suit lands of the R.S. plot no. 578 that is over the plot in question. The plaintiff and his family members are residing there on the suit land making there doweling house for more than 60 years. There lies the grave of the father of the plaintiff and some other relatives of the plaintiff and a bamboo clam over the suit lands. Therefore, as the claim goes on, the suit is necessary for the plaintiff to get back by way of pre-emption under Mohammedan. Besides, the plaintiff claims that he has no more land than 8/10 bighas. Therefore, as nothing contrary is proved as such, there appears no legal bar or otherwise legal disqualification to get the disputed land by the plaintiff. Furthermore, in this suit for pre-emption, the whole of the interest is claimed; not a part of the estate sold against the pre-emptor. Hence, he is also not found to be hit by any other legal disqualifications.
Considering all of the points discussed above, it is decided that the suit is maintainable in the present form and manner. As such, the plaintiff may get relief as prayed for. Therefore, all these issues are decided in the plaintiff’s favor. In consideration and cognizance of the petitions, facts, surrounding circumstances, submitted evidence both oral and documentary on record and relevant laws, it appears to the Court that the suit deserves to be decreed on the contest.
The court fee paid is correct.
Hence, it is ordered that the suit be decreed in preliminary on contest against the defendant No. 01 and ex parte against the rest without any order as to costs. It is hereby ordered that the pre-emptor will get the suit land described in the schedule to the plaint by way of pre-emption upon depositing the purchased money amounting to TK as specified in the suit deed into the court without delay. In case the plaintiff fails to make said deposit, the suit shall stand dismissed.
(Composed and corrected by me)