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
Miscellaneous Case No. 15/2011 (Pre-emption)
Mr.
Akbor Ali and Others (Petitioners)
Versus
Mrs. Nurjahan Bibi 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 RS khatian No.
253 was Ghukra Molla, Kolim Molla, and Chhobiron Beowa. Chhobiron Beowa died
leaving behind two sons Ghukra Molla, Kolim Molla. Ghukra Molla died leaving
behind three sons, namely Mokbul Hosen, Akbor Ali, and Shoriful Islam, as well
as four daughters, Johra, Jahanara, Aklima, and Sowkotara. Here, Akbor Ali and
Shoriful Islam are petitioners and others are impleaded as O.P. Nos. 2-5. While the Petitioner pre-emtors and the
seller (proforma) O.P. Nos. 2-5 are co-sharers by inheritance, the opposite
party No. 01 is a stranger to the holding in question. Suddenly, the opposite
party No. 02 surreptitiously sold the scheduled lands in question to the opposite
party No. 01 without serving any notice whatsoever. Subsequently, the petitioners
came to know about the disputed sale from village gossip on 14/03/2011 and
definitely on 15/03/2012 after obtaining the certified copy of the disputed
sale. Although the deed in question is shown as a gift deed, the same is not a
gift deed, insteed an out and out sale deed. 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) 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 suffers from the defect of parties. The contesting Opposite Party stated that The recorded tenant of the RS khatian No. 253 was Ghukra Molla, Kolim Molla, and Chhobiron Beowa. Chhobiron Beowa died leaving behind two sons Ghukra Molla, Kolim Molla. Ghukra Molla died leaving behind three sons, namely Mokbul Hosen, Akbor Ali, and Shoriful Islam, as well as four daughters, Johra, Jahanara, Aklima, and Sowkotara.
Here, Akbor Ali and Shoriful Islam are
petitioners and others are impleaded as O.P. Nos. 2-5. The O.P. No. 02
transferred the case lands to the O.P. No. 01 and thereafter, the latter had
built houses on thereon and improved the landscape by expending TK. 50,000. The
O.P. also stated that the Petitioners were aware and cognizant of the disputed deed
from the very inception. Additionally, since the Petitioners filed the case for
unlawful gain, basing on the 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 01-02, 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 01-02 and put forward documents marked exhibit Nos. Ka-Cha.
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 lands in question [RS khatian No. 253] 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 decided in the Petitioners’ favor.
Point for Determination No. 03:
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 disputed 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.
07. In evidence, it occurs on record that the petitioners came to know about the disputed deed in people's mouths on 14/03/2011 and definitely on 15/03/2011 after obtaining the certified copy of the disputed sale [PW-01]. Although the petitioners just said that they heard about it from the crowd, they specifically mention a person’s name [Islam] in the cross-examination of the PW-01. The PW-02 [Islam] deposed in support of the petitioner on the date of knowledge in the same sense and manner. In addition, it is evident that exhibit No. 02 demonstrates that the certified copy of the impugned sale deed was obtained on 15/03/2011 from the concerned Sub-Registry Office; and the instant miscellaneous case (pre-emption) was filed on 28/03/2011. So, the intervening time between these two dates is clearly within the prescribed period of time: two months from the date of so-called knowledge. Consequently, it prima facie appears that the petitioners’ date of knowledge regarding the disputed deed should be reckoned from when the certified copy of the impugned sale deed was obtained by them.
08. Conversely, the opposite side robustly objected to the reckoning of the limitation on account of the date of knowledge. Although the O.P. in her pleading underscores that she was gifted with the lands in the case jote stated in RS khatian No. 253; she declined to substantiate such claim in her testimony as the OPW-01. Her other witness OPW-02 additionally did not support the fact that the petitioners had prior knowledge about the disputed deed. As such, it appears that the petitioner's witness here supported them but the opposite parties' case is not supported so far as the date of knowledge is concerned. As a result, it cogently transpires that the petitioners have come before the court with more weighty evidence than the opposite party in this respect so far. The court, therefore, finds no reason for not being satisfied with the standard of proof led by the petitioners with regard to the date of knowledge about the disputed deed. Considering all of the points discussed above, it is decided that the petitioners had no prior and full knowledge about the disputed deed till obtaining the certified copy of the same.
09. 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 application for pre-emption was clearly filed within two months of the date of the knowledge about the deed 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 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 Petitioners.
Point
for Determination No. 04:
Although the O.P. No. 01 robustly claimed in her pleading that the pre-emptors are not co-sharers in the holding in question, she otherwise admitted that the recorded tenants of the RS khatian No. 253 was Ghukra Molla, Kolim Molla, and Chhobiron Beowa. Chhobiron Beowa died leaving behind two sons Ghukra Molla, Kolim Molla. Ghukra Molla died leaving behind three sons, namely Mokbul Hosen, Akbor Ali, and Shoriful Islam, as well as four daughters, Johra, Jahanara, Aklima, and Sowkotara. Here, it is evident that Akbor Ali and Shoriful Islam are petitioners and others are impleaded as O.P. Nos. 2-5 [vide PW-01, DW-01].
11. Moreover, it further appears that the
materials on record 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. Accordingly, 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 while the petitioner pre-emtors are co-sharers by
inheritance in the tenancy of the holding in question, the opposite party
No. 01 is a stranger to the same.
Point for Determination No. 1 & 5:
This is an application under section 96 of the State Acquisition and Tenancy Act, 1950 and the petitioners filed the case for getting the case lands by way of pre-emption as described in the schedule to the application. It appears that the plaintiff filed the suit before this court having jurisdiction with paying proper court fees and seeking a decree for pre-empting the suit lands. However, it manifestly appears that it is the defendant’s robust defence of plea that the impugned transaction poses as an out and out a gift on the apparent face of the record. The Ext. 02 itself conspicuously shows that the impugned deed is apparently not a sale deed, but rather a deed of gift.
As per section 96(1) of the 1950 State Acquisition and Tenancy Act, a pre-emption case is allowable only in the case of the sale transaction. So, an application for pre-emption will be barred in cases of non-sale transactions. It is now well-established that sale excludes in such a context any other modes of transfer and now; pre-emption shall lie only against a transfer of sale. In the pre-emption application, the petitioners ostensibly claim that although the deed in question is shown as a deed of gift, the same is a sale deed in disguise. As a result, the question of colorable transactions comes into play. Surprisingly, such a colorable transaction contention is somehow supported by statements disclosed in the written objection. But, it is more surprising that the OPW No. 01, the transferee, deposed in denial of the fact set out in her pleading, which could also be taken as setting out a concise summary of the facts and matters upon which the O.P. relies in support of her claim for the relief sought by her.
It indeed occurs that there is no innuendo either in written objection or in oral testimony regarding how the alleged gift had become complete by the acceptance of the offer of gift and the delivery of possession of the case property. However, there is no denying that the scheduled property is now in the possession of the opposite party No. 01. On record, it also transpires that the transferor is the petitioner’s sister who deposed as DW-02 in ways that she made a gift to the O.P. No. 01 and transferred the property in question to the transferee. She tried to reiterate the fact of a gift, instead of a sale but did not provide sufficient implications for how that gift was offered, accepted, and became complete. However, she (OPW-02) underscored, justified, and clarified the background of the gift transaction she made to the O.P. No. 01. In fact, such a justification is tenable in law; because, our case is not an outcome of an oral gift, where the offer and acceptance of gift may be made orally and the delivery of possession follows that oral agreement. Rather, the instant case results from a registered deed, statutorily presumed to be a gift deed. As a result, documentary evidence excludes oral evidence led by the petitioners in this respect so far, and thus, carries them nowhere.
The OPW-01 specifically mentioned that the petitioners have also transferred some lands at times [admitted], as well as the land in question is situated just adjacent to the transferee, O.P. No. 01. In fact, the OPW-02 poses to be a critical witness for her competence as a witness and social relations with the party. She faced cross-examination and replied that no local investigation is made to figure out the location of the case property. On the contrary, it also occurs that in the pleading or evidence, the petitioner does not mention anything that denies the current state or the location of the case property as their counter has maintained. Having being commonplace, it is cogently assuming that, although that does not appear as a broad daylight transaction, the delivery of possession follows an offer and acceptance of gift between donor and donee because of their close affinity and social relation.
As a result, since the land under pre-emption has already been transferred to the pre-emptee petitioners, the court is of view that such a plea of mere paper or colorable transaction advanced by the petitioners finds little value in determining whether the transaction was nothing but “a give and take”. So, it could be argued that the pre-emption right might have prevailed if it was otherwise proved that the deed in question was basically a paper transaction or a sale deed in camouflage. Considering the case from that premise, it appears to the court that the plea that the deed is nothing but a colorable transaction for the purpose of defeating the right of pre-emptor holds no water. And in consequence, this application for pre-emption is not maintainable; and thus, there existed no cause of action for the pre-emptors for filing the pre-emption case as such.
More specifically, as per section 96(3) of the 1950 State Acquisition and Tenancy Act, the pre-emptor must deposit, at the time of making the application, in the Court the amount of the “consideration” money of the sold holding or portion or share of the holding as stated in the notice under section 89 or in “the deed of sale”, as the case may be; and “compensation” at the rate of twenty-five per centum of the referred amount. No doubt, the amount mentioned in the deed in question is not the “consideration” money of the holding in question; instead, that is just the property price. In fact, on careful perusal of the materials available on record, the court finds no convincing elements that could be taken into consideration in assessing the consideration money for the disputed deed. The onus was upon the petitioner to come up with such kind of sufficient convincing elements to assess the best possible consideration money for the transaction, if it is proved to be a mere paper or colorable transaction.
It would be verbose to reiterate that section 96 was substituted by section 2 of the State Acquisition and Tenancy (Amendment) Act, 2006 (Act No. XXXIV of 2006), and now, a complete sale with consideration money is only preemptible under the current regime. Nothing appears to the contrary to it on materials on record. So, if there is no gross misreading or non-reading or non-consideration of any material piece of evidence, the court is confident enough to hold that since the transfer in question is not a complete sale with manifest consideration money advanced by the parties to the case, the instant case is statutorily barred and thus, not maintainable in its present form. Consequently, it provably appears to the Court that the instant case is clearly barred by the provision of section 96(1) of the 1950 State Acquisition and Tenancy Act.
In view of all of the points discussed
above, it is decided that despite having some good points and merits, such as the
petitioners are held to be co-sharer of holding in the tenancy, and the
pre-emption case was not barred by limitation as the pre-emptor filed the case
within the time from the date of his knowledge, the instant case appears to be legally
barred and accordingly, not maintainable in the present form and manner. As
such, the instant case is barred by law and thus, they may not get relief as
prayed for. As such, these issues are not settled in the petitioners’ favor. 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 ex parte against the rest without any order as to costs. The petitioners are hereby permitted to withdraw their deposited money into the court.
(Composed and corrected by me)