District: Rajshahi
In
the Court of the Senior Assistant Judge, Mohonpur, Rajshahi
Present: Md. Abdul Malek, Senior Assistant Judge
Miscellaneous Case No. 21/2010 (Pre-emption)
Mr.
Nader ALi and Others....................…...Petitioners
Versus
Mr. Md. Saidur Rahman and Others.......Opposite Parties
The
suit/case’s trial ended and arguments are heard
In the presence of.................
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 SA khatian No. 211 were Chhader Ali, Nader Ali, Jaber Ali, Korimon Bibi, and Arimon Bibi. The RS khatian No. 345 was also prepared in their names. Chhader Ali died leaving behind 5 sons and 2 daughters; and Nader Ali died leaving behind the petitioners as heirs. The Petitioner pre-emtors and the seller proforma opposite parties are co-sharers by inheritance. Suddenly, the opposite party No. 03 surreptitiously sold the scheduled lands in question to the opposite party No. 01-02 without serving any notice upon the petitioners whatsoever. Subsequently, the petitioners came to know about the disputed sale from village gossip on 05/05/2010 and definitely on 11/05/2010 after obtaining the certified copy of the disputed sale. The petitioners prayed for pre-empting the lands scheduled to the petition and hence is the case.
Written
objections in short:
The Purchaser Opposite Party (hereinafter, OP) Nos. 01 and 02 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 Parties stated that the recorded tenant of the SA khatian No. 211 were Chhader Ali, Nader Ali, Jaber Ali, Korimon Bibi, and Arimon Bibi. The RS khatian No. 345 was also prepared in their names. They purchased some lands in the case jote stated in RS Khatian No. 345 from Karimon Bibi, one of the RS recorded tenants; and have already 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. They also stated that the Petitioners were aware of the disputed sale and cognizant of the disputed deed from the very inception. 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 petitioners examined four oral witnesses as PW 01-04, and produced documentary evidence marked as exhibit Nos. 01-03). On the other side, the Opposite Party No. 01-02 also examined oral witnesses as OPWs 01-04 and put forward documents marked exhibit Nos. Ka-Ga.
Point
for Determination No. 02:
All the co-shares are necessary parties in a pre-emption case. 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 neither produced any discourse as to the omission of a necessary party in pleading nor proved the same through any documentary testimony. To consider the exhibited deeds and the depositions given in examination-in-chief as PW- 01, it appears that all co-sharer tenants of the RS Khatian No. 345 are impleaded as parties to the instant case. It is, therefore, decided that the Petitioners have successfully impleaded all the necessary parties in the case, and thus, the case seems to imply that the same is free from the defect of parties. Hence, this point is also decided in favor of the Petitioners.
Point
for Determination No. 04:
It is admitted that the recorded tenants of the SA khatian No. 211 and RS khatian No. 345 were Chhader Ali, Nader Ali, Jaber Ali, Korimon Bibi, and Arimon Bibi. Recorded tenant Nader Ali instituted the case as a co-sharer; and after Nader Ali’s demise during the pending of the case, the petitioners as his legal representatives adopted the petition for pre-emption and thus, are contesting the case.
03. On perusal of the RS Khatian No. 345 and the pleading of the parties, it further appears that since the transferor Karimon Bibi and the petitioners’ father Nadir Ali are the recorded tenants in the same Khatian, the original petitioner Nader Ali is held to be a co-sharer to the tenancy in question. It also appears that since after Nader Ali’s had died during the case’s pendency, his legal representatives, the current petitioners, turns into coherer tenants of the holding by inheritance. 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. The reasons are simple: no partition is proven to be complete so far, as well as the tenancy of the holding is yet to be split up regarding the lands in question before the institution of this case. Surprisingly, the Opposite Party No. 01, Md. Saidur Rahman, is also found to be a nephew of Karimon Bibi and Nadir Ali. But [DW-02], there is no evidence that whether the father of Md. Saidur Rahman has already died. Rather, as per the DW-01’s particulars, his father is still alive. Accordingly, he appears to be a stranger to the disputed tenancy in holding.
04. However, the OPs 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. 01-02, and on the basis of which, rents are being paid by them. In evidence, it appears that separate holding No. 463 was opened and a proposed Khatian No. 456 prepared in the name of the OP No. 01-02. The Exhibit No. Kha and Ga are these documentary pieces of evidence, which are found to be in support of the OP’s case in this respect. But, the petitioner denied such dissolution of the petitioners’ co-shareship due to the alleged separate holding.
05. 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 are now amenable to minutely be scrutinized for our purposes. On scrutiny of such documents submitted as such, it appears that a separate holding has been opened with regard to the lands disclosed in the deed in the question of pre-emption. Accordingly, thanks to the deed No. 1153/07 is now under examination of the instant pre-emption proceeding, the said fact of splitting up of the tenancy of the holding holds no water in legal parlance, no matter whether the same is done before the case is instituted or not.
06. 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 in the holding in question.
Point for
Determination No. 1, 3 & 5:
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 of this kind is not worth-considering. Rather, the date of definite knowledge is to be considered hereinafter.
08. In evidence, it occurs on record that the petitioners came to know about the disputed sale from village gossip on 05/05/2010 and definitely on 11/05/2010 after obtaining the certified copy of the disputed sale [PW-01]. Evidently, the exhibit No. 02 demonstrates that the certified copy of the impugned sale deed was obtained on 11/05/2010 from the concerned Sub-Registry Office; and the instant miscellaneous case (pre-emption) was filed on 06/06/2010. So, the intervening time between these two dates is clearly within the prescribed period of time- two months of the date of knowledge of the sale. Consequently, it prima facie appears that the petitioners’ date of knowledge regarding the disputed sale deed should be reckoned from when the certified copy of the impugned sale deed was obtained by them on 11/05/2010. However, conversely, the opposite side robustly objected to the reckoning of the limitation on account of the date of knowledge.
09. In pleading, the O.P. underscores that they purchased the lands in the case jote stated in RS Khatian No. 345; and have already mutated the same lands after they had purchased it. Accordingly, separate holding is opened and taxes are being paid, as well as an improvement is also made to the case lands subsequently. They claim that the petitioners had known about the disputed sale and when they declined to purchase the case lands, they (OPs) did it by paying the consideration money, even in the presence of “Nader Ali” (the original petitioner). In evidence, the OPW-01 concurred with the same propositions and OPW 02-04 supported such claims. As a witness of the disputed deed, the OPW-03 identified himself and highlighted that “Nader Ali” was present at the time of registration along with Saidur, Karimon, and Mojam. Here, Mojam is an identifier of the disputed sale deed. The OPW-02 additionally supported the fact that the petitioners had prior knowledge about the disputed sale and narrated a particular fact relating to it.
10. Surprisingly, the petitioners’ witness PW-04 stated in his cross-examination that he is a co-sharer of the case lands and was conversant about the disputed sale from the very beginning. He also added that “Nader Ali” and his son “Kasem Ali” also knew about the disputed sale from when the disputed deed was executed and registered: meaning that a petitioner's witness here supported the opposite parties' case as to the prior knowledge of the sale. As a result, it cogently transpires that the petitioners could not come before the court with more weighty evidence than the opposite party did as to the knowledge of the sale. In addition, the opposite party submitted documents, including prostabito khatian No. 456 [ext.: kha], rent receipt [ext.: Ga] before the court for inspection. On the close scrutiny of such a documentary piece of evidence, it appears that the land scheduled to the disputed deed has already been mutated against the name of the opposite parties No. 01-02.
11. It is now trite to pinpoint that, in addition to oral evidence discussed hereinbefore, the opposite parties come up before the court with documentary shreds of evidence that exclude the petitioners’ mere oral piece of evidence. To exemplify, since the process of separation or sub-division of holding shall have to be done only after observing the procedure as laid down in section 117c of the State Acquisition and Tenancy Act of 1950, serving a reasonable notice to the parties concerned is a pre-requisite for a mutation proceeding. Because mutation is done, prostabito khatian is prepared, as well as rents are being paid, it is cogently presumed that the requirement of section 117c of the State Acquisition and Tenancy Act of 1950 is complied with, as nothing is proved to the contrary. To demystify, mere non-production of the concerned volume of the mutation proceeding in question does not disentitle the opposite parties from reaping the benefits of such presumption. The court, therefore, finds no reason for not being satisfied with the standard of proof led by the opposite parties. Considering all of the points discussed above, it is decided that the petitioners had prior and full knowledge about the disputed sale, from the very initiation of the talk about the disputed sale, and definitely, from when the lands in question were “officially” mutated against the names of the opposite parties in the last of 2007.
12. As aforesaid, an application for pre-emption must be filed within “two months” of the date of the knowledge of the sale. As such, the whole fabric of the evidential edifice convinces the court to hold that since the petitioners had prior knowledge about the disputed sale deed, for the year of the deed’s execution in the last of 2007, and the instant application has been lodged in the middle of 2010, it is evidently decided that this application for pre-emption was clearly not filed within two months of the date of the knowledge about the sale in question [vide section 96 (1), the SAT Act]. In view of the above propositions of law and facts, it is, therefore, found that the case has not been filed within the period of time prescribed in law; and thus, the same is barred by law. Hence, this point for determination No. 03 is not decided in favour of the Petitioners. As a result, since the application is barred by limitation, the instant case is not maintainable in the present form and manner. As such, although the petitioners are held to be co-sharer of holding in the tenancy, they may not 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.
The court fee paid is correct.
Hence,
it is ordered
that the pre-emption application be disallowed on contest against the Opposite Party No.1 and 2 without any order as to costs.
(Composed and corrected by me)