Tuesday, January 23, 2018 | ePaper

Long lapse of time no valid ground for rejecting pre-emption petition

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Appellate Division
(Civil)
Md Abdul Wahhab Miah J
Nazmun Ara Sultana J
Md Imman Ali J
Md Nizamul Hoq J
Syed Emdad
Hussain and ors ... Petitioners
vs
Muzahar Ali Mallick and ors ...
...... Respondents
Judgment
January 22nd, 2017
State Acquisition & Tenancy Act (28 of 1951)
Section 96
That no application for pre-emption under Section 96 of the Act, can be rejected on the ground of long lapse of time, if the same is found to have been filed within the statutory period of limitation, making the statutory deposit and impleading all the necessary parties and of course subject to the fulfillment of other requirements of law as regards the right of pre-emption of the pre-emptors     (8)
Md Afzal Hossain, Advocate instructed by Zainul Abedin, Advocate-on-Record-For the Petitioners.
Hari Das Paul, Advocate-on-Record-For Respondent No.1(a).
None Represented-For Respondent Nos.2-17.
Judgment
Md Abdul Wahhab Miah J : This petition for leave to appeal has been filed against the judgment and order dated the 22nd day of May, 2013 passed by a Single Bench of the High Court Division in Civil Revision No.1695 of 1997 making the Rule absolute.
2. Facts necessary to dispose this petition are that the petitioners as the pre-emptors filed Miscellaneous Case No.78 of 1983 in the Court of Munsif, Nalcity, Barisal under Section 96 of the State Acquisition and Tenancy Act, 1950 for pre-emption of the case land claiming themselves to be the co-sharers in the case holding. The case was subsequently renum-bered as Miscellaneous Case No.139 of 1985.
3. The case of the pre-emptors, in short, was that the land of the case khatian was recorded in the name of Asimuddin and others. Asimuddin died leaving behind one son, two daughters and one wife and subsequently, they transferred their share in favour of the pre-emptors by registered kabala dated 4-5-1983 from Dag Nos. 53 and 54 of SA Khatian Nos.5 and 12 measuring an area of 0.06 acre land. Another recorded tenant, namely, Faku Jan alias Fakujan transferred her share in favour of her son, Sekander Ali by a registered deed of Hiba-bil ewaj on 8-5-1969, who subsequently sold the said land measuring an area of '3-25' decimals from Dag Nos.53 and 54 of the said khatian by a registered kabala dated 15-5-1983 in favour of the pre-emptors. Manikjan Bibi, one of the recorded tenants transferred her land in favour of her son, Abdul Khaleque who thereafter sold the same by registered kabala dated 21-3-1983 in favour of the pre-emptors to the extent of '3-50' decimals. Ayatun Bibi, another recorded tenant, died leaving behind dauohter-Azibunnessa and she transferred her land measuring an area of 3-3/4 decimals by a resistered kabala dated 7-9-1982 in favour of the pre-emptors by way of sale. Accordingly, the pre-emptors became the owners of 16-1/2 decimals land out of 18 decimals land from Dag Nos. 53 and 54 of the said khatian by way of purchase and possessing and enjoying the said land complying with the requirements of the law. Another tenant, Lal Banu @ Lalmon, the vendor of the impugned kabala sold 2 decimals land in favour of the pre-emptee by a registered kabala dated 23-2-1983 at a consideration of taka 2000 beyond the knowledge of the pre-emptors who were the co-sharers in the case khatian without serving any notice upon them under Section 89 of the Act. The pre-emptors came to learn about the impugned kabala on 8-6-1983, when the pre-emptee took measurement of the case land and thereafter obtained the certified copy of the kabala in question on 13-6-1983 and then filed the case on 9-6-1983.
4. The pre-emptee contested the miscellaneous case by filing written objection contending, inter alia, that the notice of transfer was served upon the co-sharers and it was not correct that the transfer in question was made secretly. The pre-emptors knew about the transfer in question and after transfer, the preemptee developed the case land by spending Taka 15,000 and as such, the case was liable to be dismissed.
5. At the trial, both the parties produced evidence. The trial Court by its order dated 13-6-1989 alloweti the miscellaneous case on the clear finding that the same was filed within time, there was no defect of party and that the pre-emptors were the co-sharers by purchase in the case holding. The trial Court having found that the pre-emptee developed the case land after purchase allowed development cost to the tune of Taka 5000. Against the order of the trial Court, the pre-emptee filed Miscellaneous Appeal No.24 of 1989 before the District Judge, Jhalakathi. The Appellate Court, namely the Subordinate Judge (now the Joint District Judge), 1st Court, Jhalakathi by his judgment and order dated 20-2-1997 affirmed the order of the trial Court. Being aggrieved by and dissatisfied with the judgment and order of the Appellate Court, the pre-emptee filed the above mentioned civil revision before the High Court Division. A Single Bench by the impugned judgment and order made the Rule absolute only on the ground that the pre-emption application could not be allowed after 30 years; hence this petition for leave to appeal.
6. Heard Mr Md Afzal Hossain, learned Advocate, for the petitioners and Mr Hari Das Paul, learned Advocate-on-record, who entered caveat on behalf of the pre-emptee-respondent.
7. As already stated hereinbefore, the High Court Division did not at all discuss and consider the evidence on record and did not also reverse the findings of the Courts below. Usually in a case of this kind of judgment and order, we send the revision back to the High Court Division for hearing afresh and for disposal, but in view of the fact that the case is a pretty old one, we are not inclined to send the revision back to the High Court Division for hearing afresh and for disposal. Since the High Court Division did not say anything about the finding of the Courts below as well as the case of the respective party. We ourselves have gone through the evidence on record and found that the findings of the trial Court as affirmed by the Appellate Court were based on correct appreciation of the evidence produced in the case as well as the relevant law.
8. In the context, we state the law that no application for pre-emption under Section 96 of the Act, 1950 can be rejected on the ground of long lapse of time, if the same is found to have been filed within the statutory period of limitation, making the statutory deposit and impleading all the necessary parties and of course subject to the fulfillment of other requirements of law as regards the right of pre-emption of the pre-emptors.. So, the impugned judgment and order cannot be sustained and that must be interfered with and since we have heard the learned Advocate and the Advocate on-Record respectively of the parties, we are inclined to interfere with the impugned judgment and order finally in a summary way without giving leave.
9. Accordingly, this petition is disposed of in the following terms:
The impugned judgment and order of the High Court Division is set aside and those of the Courts below are restored. 

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