BANGLADESH
FORM NO. 3701
HIGH
COURT FORM NO. (J) 2
HEADING OF JUDGEMENT IN ORIGINAL SUIT/CASE
District: Rajshahi
In
the Court of the Senior Assistant Judge, Mohonpur, Rajshahi
Present:
Md. Abdul Malek, Senior Assistant Judge
13
July, 2022
Miscellaneous Case No. 35/2015 (Pre-emption)
Mr.
Sri Aujoy Sarkar....................…...Petitioner
Versus
Mr. Sri Bipod Chandro Shaha and Others.......Opposite Parties
The
suit/case’s trial ended and arguments are heard
In
the presence of
Mr...........................…………….……Learned
Advocate for the Petitioner
Mr.....................................…. Learned Advocate for the Opposite Party
And having stood for consideration to this day, the Court delivered the following judgment: This is an application under section 96 of the State Acquisition and Tenancy Act, 1950. The petitioner filed the case for getting the case lands by way of pre-emption as described in the schedule to the application.
The application
in the nutshell:
The recorded tenant of the RS khatian Nos. 253 and 254 was one Zogendronath Pramanik, who died leaving behind his spouse one Srimoti Khiroda Sundari. Srimoti Khiroda Sundari transferred 02.06 acres lands to the father of the petitioner Shushil Kumar via a deed No. 1250 dated 27.02.1983. Shushil Kumar died leaving behind the petitioner Aujoy Sarkar, Bijoy Kumar Sarkar (O.P. No. 02) and Aujit Kumar Sarkar as heirs. The O.P. No. 03 is a son of Aujit Kumar Sarkar. The Petitioner pre-emtors and the seller proforma opposite parties are co-sharers by inheritance. Suddenly, the opposite party No. 02 surreptitiously sold the scheduled lands in question to the opposite party No. 01 without serving any notice or furnishing any information upon the petitioners whatsoever. Subsequently, the petitioner came to know about the disputed sale when the O.P. No. 01 wanted to take possession of the lands in question 25/07/2015 and definitely on 30/07/2015 after obtaining the certified copy of the disputed sale. The petitioner prayed for pre-empting the lands scheduled to the petition and hence is the case.
Written
objections in short:
The Purchaser Opposite Party (hereinafter, O.P.) No. 01 contested the case by filing the written objection, denying the material averments made in the pre-emptors’ petition. They contended inter alia that the very petition is legally untenable, barred by limitation, and hit by the defect of parties. The contesting Opposite Party stated that the recorded tenant of the RS khatian Nos. 253 and 254 was one Zogendronath Pramanik, who died leaving behind his spouse one Srimoti Khiroda Sundari. Srimoti Khiroda Sundari transferred the lands to one Shushil Kumar, who died leaving behind the petitioner Aujoy Sarkar, Bijoy Kumar Karkar (O.P. No. 02) and Aujit Kumar Sarkar as heirs. Upon request by the O.P. No. 02, he purchased the lands in question in cognizance of the many others, including the petitioner.
He also stated that the Petitioners were
aware of the disputed sale and cognizant of the disputed deed from the very
inception. He has mutated the suit lands after the said purchase. Accordingly,
separate holding is opened and taxes are being paid accordingly, as well as an
improvement is also made to the case lands subsequently. Additionally, since
the Petitioners filed the case for unlawful gain and based the same on false
and fabricated statements; they (the Petitioners) are not entitled to get back
the case lands as they prayed for.
Points for Determination:
Considering the parties’ petition and written objection, the points for determination are fixed with a modification in the following way:
1)
Whether the case is maintainable in the present form and manner.
2)
Whether the case is
bad for the defect of parties.
3)
Whether the case is barred by limitation
4)
Whether the
petitioners are co-sharers by inheritance in the holding in question.
5)
Whether the petitioners may get relief as prayed for.
Discussions and the Decisions:
In proof of the claims, the petitioner examined two oral witnesses as PW 01-02, and produced documentary evidence marked as exhibit Nos. 01-03). On the other side, the Opposite Party No. 01 also examined oral witnesses as OPWs 01-03 and put forward documents marked exhibit Nos. Ka-Kha.
Point
for Determination No. 02:
All the co-shares are necessary parties in a pre-emption case. Waiver of the right is one thing, but defeating the right by deliberate omission in the pre-emption application is a different thing. So, pre-empting right is not absolute, but subject to the right of other co-sharers. Since the cause of actions for a pre-empting right accrues to those all who are entitled to file an application for pre-emption against the transferee, impleading necessary parties are considered as mandatory and not directory one. Consequently, the Omission does not absolve the pre-emptor of his mandatory duty to implead them by ascertaining necessary particulars [vide 4 BLD (AD) 27]. Thus, an 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 opposite parties produced discourses as to the omission of a
necessary party in pleading and particularly mentioned the name of some
purchasers not made party to the case. It is the plea of the O.P. No. 01 that
they (“purchasers”) are “necessary party” in this miscellaneous proceeding.
Point for Determination No. 04:
As aforesaid, it is admitted the O.P No. 01 in his pleading that the recorded tenant of the RS khatian Nos. 253 and 254 was one Zogendronath Pramanik, who died leaving behind his spouse one Srimoti Khiroda Sundari. Srimoti Khiroda Sundari transferred the lands to one Shushil Kumar, who died leaving behind three sons, Aujoy Sarkar, Bijoy Kumar Sarkar (O.P. No. 02) and Aujit Kumar Sarkar. Here, Aujoy Kumar Sarkar instituted the case as a co-sharer; and Bijoy Kumar Sarkar and the legal representative of Aujit Kumar are made parties to the case as O.P. No. 02-03. Even, on perusal of the pleading of the parties and the testimony of the DW-01 (vide cross-examination), it further appears that the instant petitioner turns into coherer tenants by inheritance of the holding. The PW-01 as well as DW-01 along with other witnesses supported this premise in many ways that the current petitioners are also co-sharers by inheritance.
05. However, the O.P. also bases his plea of defence in ways that after the demise of Shushil Kumar Sarkar, the share(s) of the case lands are allotted to his heirs on oral partition. But, what transpires on the materials on record reveals that no partition either through a registered deed or otherwise is proven to be complete so far, as well as the tenancy of the holding is yet to be split up through mutation regarding the lands in question before the institution of this case. Surprisingly, the O.P. No. 01 admittedly appears to be a stranger to the disputed tenancy in holding.
06. Moreover, the OPs further robustly claimed that the pre-emptor is not a co-sharer in the holding in question for a separate holding has been opened in the name of the OP No. 01 after his disputed purchase, and on the basis of which, rents are being paid by them. In evidence, it appears that the O.P. No. 01 places no documentary piece of evidence in support of his case in denial of the petitioners’ co-shareship due to the alleged separate holding. It is no denying that the process of separation or sub-division of holding is altogether a different thing and it shall have to be done only after observing the procedure as laid down in section 117c of the aforesaid Act of 1950. Besides, '[a] non-notified co-sharer of the holding which was divided would remain co shares of the holding as if there was no sub-division of holding relating to the claim.' As such, these premises require to minutely be scrutinized on our purposes.
07. On scrutiny of materials on records, it
appears that there is no proof of a separate holding opened with regard to the
lands disclosed in the deed in the question of pre-emption. Accordingly, the plea
of splitting up of the tenancy of the holding holds no water in legal parlance.
The relevant law is well-spoken that when separate Khatians are prepared in the
names of the original co-sharers, that co-sharer in whose names separate
Khatian have been prepared will cease to be co-sharers of the original holding.
[Vide 13 MLR (AD) 144]. Therefore, the court finds no convincing or
unimpeachable evidence that is independently led by the O.P. in support of the
alleged extinguishment of the petitioner’s co-shareship in the holding in
question. Therefore, it is the court’s
view that the Petitioners are “co-sharer tenants by inheritance” in the holding
in question.
Point for Determination No. 01, 03 & 05:
These issues are taken together for the sake of brevity, convenience, and interrelation. As per section 96(1) of the 1950 State Acquisition and Tenancy Act, a pre-emption case is to be filed within two months of the service of notice under section 89; or if no notice has been served under that section, within two months of the “date of knowledge” of the disputed sale. The relevant law envisages that the date of obtaining a certified copy of the sale deed will be considered as the 'date of knowledge' contemplated as a 'complete and definite date of knowledge as to the disputed sale' in case of non-service of notice [vide 15 MLR 207, 9 BLD 197]. On perusal of the materials on record, it appears that there is no proof in the support of the service of notice as aforesaid. Accordingly, this application for pre-emption will not be barred if it is filed within two months from the date of knowledge for no notice is served under section 89. Hence, the date of initial knowledge is to be relaxed; instead, the date of definite knowledge is to purposively be considered here.
09. In pleading, the petitioner claims that he came to know about the disputed sale when the O.P. No. 01 wanted to take possession of the lands in question on 25/07/2015 and he also definitely got informed of the same after making an educated person read over it to them after obtaining the certified copy of the disputed sale. In evidence, it occurs on record that the petitioners concurred with the same propositions with sufficient explanation as to how he came to know about the disputed sale [vide PW-01]. However, the opposite side objected to the reckoning of the limitation on account of the date of knowledge, both in pleading and in cross-examination. The O.P. underscores (OPW-01) that they purchased the lands in the case jote in the presence of Bijoy, Salam, Goutam, Aujoy, Mukul and Shahidul and made an improvement to the case lands subsequently. They claim that the petitioner had known about the disputed sale and when they declined to purchase the case lands in their presence.
On close perusal of the testimony led by the opposite parties, it seemingly appears that the OPW-01 reiterated the same in his cross-examination; but it also occurs that his other witnesses DW 02-03 did not convincingly support his testimony, simply because the OP did not particularly, on one hand, examine Bijoy, Salam, Goutam and Mukul, except Shahidul (OPW-02) who he himself went to Bijoy’s home with Apod. Here, Bijoy is the seller and Apod is the purchased of the case lands. As a result, it is deducible that the said event happened at Bijoy’s home, not at the home of the petitioner Ajoy Sardar. As a result, it cogently transpires that the petitioner has come before the court with more weighty evidence than the opposite party did as to the knowledge of the sale.
11. Moreover, the OP side additionally presented that the petitioner had prior knowledge about the disputed sale and narrated a particular fact: the marriage of Tripti Rani, a daughter of the seller, and a niece of the pre-emptor. But as it transpires on the materials on record that, although the very fact is ostensibly relevant, it did establish no robust connection to the propriety of the pre-emptor’s date of knowledge. The court, therefore, finds no reason for not being satisfied with the standard of proofs led by the petitioner on the point that the whole fabric of the evidential edifice convinces the court to hold that the instant miscellaneous case (pre-emption) was filed within the prescribed period of time. In view of the above propositions of law and facts, it is, therefore, found that the case has been filed within the period of time prescribed in law; and thus, the same is not barred by law. Hence, this point for determination No. 03 is decided in favor of the Petitioner.
12. Furthermore, it is also noticeable that the OP side clearly claims that the lands in question are not pre-emptible for they are not agricultural lands. But, it surprisingly occurs that the O.P. side also mentions in pleading that the land class is vita and there have been built betel field and cluster or clump of bamboos, and that is the improvement made by them therein. Besides, both side admitted in their testimony that there is a betel field and cluster or clump of bamboos on the case lands. So, such a plea holds no water.
13. Then, it is also noticeable that as a matter of expediency, section 96 (11) of the 1950 State Acquisition and Tenancy Act can be considered and discussed here for lawful adjudication of the instant case. Section 96 (11) articulates that ‘nothing in this section shall be deemed to apply to homestead land. Hopefully, the definition of the term ‘homestead’ is found in section 2(14) of the aforesaid Act. It runs as “homestead” means a dwelling house with the land under it, together with any courtyard, garden, tank, place of worship and private burial or cremation ground attached and appertaining to such dwelling house, and includes any out-buildings used for the purpose of enjoying the dwelling house or for purpose connected with agriculture or horticulture and such lands within well-defined limits, whether vacant or not, as are treated to be appertaining thereto. According to these provisions, it is unquestionable that homestead land is not pre-emptible. So, a vita having no connection to attributes mentioned in this definition is in no way homestead. The materials available on record suggest that the lands in question is not, in legal parlance, homestead. Besides, both side admitted in their testimony that there is a betel field and cluster or clump of bamboos on the case lands. So, the application stands outside the bar of the provisions enumerated in section 96 (16) of the 1950 State Acquisition and Tenancy Act.
As a result, since the application is barred by limitation, the instant case is not maintainable in the present form and manner. As such, since the petitioners are held to be co-sharer of holding in the tenancy and the application is not otherwise barred, they may get relief as prayed for. In consideration and cognizance of the petitions, facts, surrounding circumstances, submitted shred of shreds of evidence, both oral and documentary, on record, and relevant laws, it appears to the Court that the application deserves to be disallowed on contest.
Court
fee paid is correct.
Hence,
it is ordered
that the pre-emption application be allowed on contest against the Opposite Party No.1 without any order as to costs. The pre-emptor will get scheduled lands by way of pre-emption. The Opposite Party No. 1 is allowed to withdraw the money deposited in their credit. The OP No. 1 directed to execute and register a sale deed in respect of case lands in favour of the Petitioner within 60 days from this order provided that no tax, duty or fee shall be payable on such registration. In default, the Petitioner may get the same through Court in accordance with the law.
(Composed and corrected by me)