Appellate Division (Civil) :
Md Abdul Wahhab Miah
Nazmun Ara Sultana J
Md Imman Ali J
Md Nizamul Huq J
J Ruhul Amin (Md)
and others .. Appellant
Md Forkan Ullah and
another ......... Respondents
Judgment November 29th, 2016
State Acquisition & Tenancy Act (:XXVIII of 1951) Section 96(3)
When admittedly the pre-emptors did not deposit the value of the exchange deed which they claim to be the sale deed and the statutory compensation thereon, the pre-emption application was not at all maintainable and the case was liable to be dismissed in view of the provisions of sub-section (3) of section 96 of the Act. ......... (15)
Probir Neogi, Senior Advocate, instructed by Nurul Islam Bhuiyan, Advocate-on-Record-For the Appellants.
MA Quayum, Senior Advocate, instructed by Sufia Khatun, Advocate-on-Record-For Respondent Nos. 1-2.
None Represented- For Respondent Nos. 3-5.
Md Abdul Wahhab Miah J : This appeal, by leave, is from the judgment and order dated 3-2-2009 passed by the High Court Division in Civil Revision No. 2159 of 1998 making the Rule absolute.
2. Shorts facts, necessary to dispose this appeal are that the appellants as the pre-emptors filed Miscellaneous Case 74 of 1987 in the Court of Assistant Judge, Begumganj for pre-emption of the case land under Section 96 of the State Acquisition of Tenancy Act, 1950, in short, the Act, 1950 claiming themselves to be co-sharers by inheritance in the case holding.
3. After filing the miscellaneous case for pre-emption, the pre-emptors as the plaintiffs instituted Title Suit No. 129 of 1987 in the same Court for declaration that the registered deed of ewaznama dated 18-6-1987 (which was the subject matter of pre-emption) was an out and out sale deed and not an ewaznama. Subsequently the suit and the miscellaneous case having been transferred to the Court of Assistant Judge, Senbag were renumbered as Title Suit No.4 of 1995 and Miscellaneous Case No. 1 of 1995 respectively.
4. The pre-emptees contested the suit and the miscellaneous case by filing writtert statement and written objection respectively contending, inter alia, that the plaintiffs/ the pre-emptor's were not co-sharers by inheritance in the case holding and that they (the pre-emptees) were the co-sharers in the case holding inasmuch as on 29-11985, pre-emptee No.2 acquired 0.03 acre land by a registered deed of ewaznama dated 29-1-1985, from Makhon Lal Das, vendor No.3. Thereby, he has been exercising his right, title and possession over the said portion of the land as a co-sharer. Vendor Makhon Lal Das and his wife Dipali Rani by a registered deed of ewaznama dated 18-6-1987 exchanged their 3.891/2 acres land as described in schedule-'Ka' with 0.0581/2 acre land of the pre-emptees as described in schedule-'Khai' to the pre-emption application. There was a tin shed dwelling house with putca wall over 'Ka' scheduled land which was also sold to the pre-emptees at Taka 2,00,000. Subsequently, possession of the respective exchanged land was delivered pursuant to the terms of the ewaznama. After exchange the locals threatened to kill the vendors who then decided to settle elsewhere and transferred 'Kha' scheduled land to defendant No.3, Most. Amina Khatun, by a registered kabala dated 19- 6-1988 at, a consideration of Taka 2,90,000. Virtually, the transfer was made not by a registered kabala but by a registered waznama, showing consideration for Taka 25,000 only instead of the actual valuation prevailed at that time. Therefore, the suit and the miscellaneous case were liable to be dismissed.
5. The suit and the miscellaneous case were heard analogously by the learned Assistant Judge, Senbag and he, by a common judgment dated 31-8-1996 dismissed the suit, and disallowed the miscellaneous case. Against the judgment and the order respectively of the learned Assistant Judge two appeals being Title Appeal No. 184 of 1996 and Miscellaneous Appeal No. 38 of 1996 were filed before the District Judge, Noakhali. Both the appeals were allowed by the learned Subordinate Judge (now the Joint District Judge) by a common judgment dated 12-1-1998.
6. Against the judgment of the Appellate Court, in the title appeal as weIl as in the miscellaneous appeal, the pre-emptees who were defendants in the suit, filed one revision application, before the High Court Division being Civil Revision No. 2159 of 1998 and a Single Bench by the impugned judgment and order made the Rule absolute with the finding that the deed in question was a deed of ewaznama and not a deed of sale.
7. Against the impugned judgment and order, the appellants (they were plaintiffs in the suit) filed Civil Petition for Leave to Appeal No. 837 of 2009 before this Court and leave was granted to consider the submissions of their learned counsel as under:
"Mr Mahmudul Islam, learned Counsel, appearing for the petitioners submitted that having regard to the facts and circumstances of the case, both the trial Court and the Court of Appeal below came to the finding that the impugned document, Ext. No.3, though executed in the form of exchange, is in reality a sale deed and the High Court Division executed (sic) its jurisdiction in disturbing the concurrent finding of fact and arrived at by the Courts below. The learned counsel further submitted that respondent Nos. 4 and 5 having transferred 3.891/2 acres in exchange of 0.581/2 acre by Ext. No.3 and within two days transferred the said, 0.581/2 acre to respondent Nos. 1 and 2 in the benami of their mother, respondent No, 3, and having regard to the fact that the stamps for the sale deed and the exchange deed were purchased on the same day from the same stamp vendor, the Courts below rightly held the exchange deed to be a sham document and the High Court Division was wrong in reversing the said finding of fact in revision".
8. Mr Probir Neogi, learned counsel for the appellants has reiterated the submissions on which leave was granted.
9. Mr Abdul Quayum, learned Counsel for pre-emptee-respondent Nos. 1 and 2, on the other hand, has supported the impugned judgment and order.
10. Before we proceed to consider the submissions on which leave was granted, we feel it obligatory on our part to dwell upon a point that very much disturbed our mind, namely, that how one revision application could be filed before the High Court Division challenging the judgment and decree passed in the title appeal as well as the judgment and order passed in the miscellaneous appeal. More interesting thing is that in the cause title even the number of the miscellaneous appeal was not mentioned and in place of miscellaneous appeal, it was wrongly mentioned as other appeal and in case of Miscellaneous Case No. 1 of 1995, it was written as Other Suit No. 1 of 1995. We were a bit perplexed and astonished to see the cause title of the revision application and to be sure what was the actual cause title in the original revision application (in the paper book the photostat copy of the revision, application has been filed), we brought the records of the civil revision from the High Court Division and found the cause title as mentioned in the photostat copy of the revision application included in paper book and in the original civil revision exactly the same. The cause title reads as follows:
In the matter of:
Judgment and decree dated 12-1-1998 and respectively passed by Sub-ordinate Judge, Court No. ~, Noakhali in Title Appeal No. 184 of 1996 and Other Appeal No. 38 of 1996 arises out of Title Suit No.4 of 1995 and Other Suit No. 1 of 1995 by which learned appellate court allowed the appeal by setting aside the judgment and decree dated 31-81996 and 10-9-1996 respectively passed by the Assistant Judge Court, Senbag in the above mentioned suits,"
(the number of the miscellaneous appeal was 38 of 1996)
11. The prayer in the revision application was couched keeping conformity with the cause title. Be that as it may, we have no hesitation to say that one revision application was not maintainable though the two appeals (the title appeal and the miscellaneous appeal) were disposed of by a common judgment. And the Rule issuing Bench was absolutely in error in entertaining one revision application against the judgment passed in the two appeals and that again with wrong description of the miscellaneous appeal and the miscellaneous case and then in issuing the Rule. The same error has also been committed by the single Bench which heard the revision and disposed the same finally. In the context, it is very pertinent to state that the Single Bench while passing the impugned judgment and order failed to notice that the judgment passed in miscellaneous Appeal No. 38 of 1996 setting aside the order of the learned Assistant Judge passed in Miscellaneous Case No. 1 of 1995 was not at all impugned in the revision application, but in the ordering portion, it stated that
"The impugned judgment and decree dated 12-1-1998 passed by the learned Sub-ordinate Judge, Second Court Noakhali, in Title Appeal No. 184 of 1996 analogously heard with Miscellaneous Appeal No. 38 of 1996 are here by set aside. Accordingly both Title Suit No.4 of 1995 and Miscellaneous Case No.1 of 1995 (miscellaneous case arose out of the pre-emption application) stand dismissed."
12. Since the judgment and order passed by the Appellate Court in Miscellaneous Appeal No. 38 of 1996 was not at all impugned in the revision that could not be the subject matter of-any sort of adjudication in revision. In this regard, it may be stated that the learned Subordinate Judge who disposed the appeals (the title appeal, and the miscellaneous appeal) by the common judgment in unequivocal term allowed both the appeals, i.e. decreed the suit and allowed the miscellaneous case. The ordering portion of the Appellate Court reads as follows:
“আদেশ হইল যে,
অত্র দেওয়ানী আপীল ১৮৪/৯৬ মোকদ্দমা এবং বাজে আপীল ৩৮/৯৬ নং মোকদ্দমা দোতরফা সূত্রে প্রতিদ্বন্দ্বিকারী বিবাদী/প্রতিপক্ষ রেসপনডেন্টের বিরুদ্ধে এবং অন্যান্য অনুপস্থিত বিবাদী/প্রতিপক্ষ রেসপনডেন্টের বিরুদ্ধে একতরফা সূত্রে বিনা খরচায় মঞ্জুর করা হইল বিজ্ঞ নিম্ন আদালতের ৩১-৮-৯৬ তারিখের রায় ও ১০-৯-৯৬ইং তারিখের ডিক্রি রদ ও রহিত করা হইল। নিম্ন আদালতের দেওয়ানী ৪নং মোকদ্দমা দোতরফা সূত্রে ১/২ নং বিবাদীর বিরুদ্ধে এবং অন্যান্য অনুপস্থিত বিবাদীদের বিরুদ্ধে একতরফা সূত্রে বিনা খরচায় ডিক্রি দেওয়া হইল। ২৮-৪-৮৭ইং তারিখের সম্পাদিত ও ১৮-৬-৮৭ইং তারিখে রেজিষ্ট্রিকৃত এওয়াজ দলিলকে সাফকবলা বলিয়া ঘোষণা দেওয়া হইল। বাজে ১/৯৫ নং মোকদ্দমা দোতরফা সূত্রে ১/২নং প্রতিপক্ষের বিরুদ্ধে বিনা খরচায় মঞ্জুর করা গেল। প্রার্থীপক্ষ এওয়াজ দলিলের বক্রীগণ মূল্য ১৫,০০০ টাকা সহ ক্ষতিপূরণের মূল্য চালান মূলে ১/২নং প্রতিপক্ষের নামে অত্র আদেশ জারি হওয়ার তারিখ হইতে ৩০ দিনের মধ্যে অত্র আদালতে জমা দিবে অন্যথায় অত্র মোকদ্দমা ডিসমিস বলিয়া গণ্য হইবে।
13. The above facts clearly show the total non-wapplication of mind by the High Court Division which is very much unfortunate and disturbing as well. We hope that the Benches, both the Rule issuing Bench and the hearing Bench, shall apply their judicial mind and see whether a revision application is at all in form and the cause title and the prayer of a revision application are properly framed and coulched with correct description and number of the suit and the case. Since the defendant-respondents filed one revision application and the same was decided against the plaintiff-pre-emptors, they had no option put to file one civil petition for leave to appeal giving rise to this appeal as stated hereinbefore.
14. In the context, we must state the law that the pre-emptors were not at all required to file a separate suit for the declaration that the deed in question was not an ewaj deed, but it was an out and out sale deed, as the question could very well be raised and decided in the miscellaneous case itself filed for pre-emption of the land transferred by the deed in question. And it appears to us that the suit was filed on misconception of law by the Bar at the woe of the pre-emptors.
Now coming to the merit of the appeal:
15. The pre-emptor filed the miscellaneous case claiming the deed in question (dated 18-6-1987) as a deed of sale and not a deed of exchange. The document has been valued at Taka 25,000. But the pre-emptor filed the miscellaneous case for pre-emption of the land transferred by the deed showing the same valued at Taka 10,000 and accordingly deposited Taka 10,000 + 1,000 as statutory compensation on that amount only. In the context it is also necessary to state that the pre-emptors filed Other Suit No. 129 of 1996 for declaration that the said deed (dated 18-6-1987) was not a deed of exchange but an out and out sale deed and in that suit the suit valuation was shown Taka 25,500. From the pre-emption application, it appears that the pre-emptors fixed the valuation of the application at Taka 10,000 by giving reference to a subsequent sale deed dated 19-6-1987 by which opposite No. 18 in the miscellaneous case purchased the same land at Taka 10,000 claiming that Taka 10,000 was the actual value of the land transferred by the deed in question. When the pre-emptors claimed pre-emption against the deed dated 18-6-1987 being valued at Taka 25,000, they were obliged to file pre-emption application by depositing the said amount along with 10% compensation as required by sub-Section (3) of Section 96 of the Act, 1950 as was prevalent at the relevant time. And by no logic or reason they could value the pre-emption application at 10,000. Sub-section (3) of Section 96 of the Act, 1950 has clearly provided that an application under sub-section (I) shall be dismissed unless the applicant or applicants, at the time of making it, deposit 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 transfer, as the case may be together with compensation at the rate of ten per centum of such amount. So, when admittedly the pre-emptors did not deposit the value of the exchange deed which they claim to be the sale deed and the statutory compensation thereon, the pre-emption application was not at all maintainable and the case was liable to be dismissed in view of the provisions of sub-section (3) of Section 96 of the Act, 1950. The Appellate Court clearly found that the pre-emptor without depositing the value of the ewaj deed of Taka 25,000 filed the pre-emption application by depositing the value of the kabala dated 19-6-1987, i.e. Taka 10,000 and compensation of Taka 1,000 on the said valuation though that was not the value of the deed under pre-emption. Facing with these difficulties of non-compliance with the requirement of sub-Section (3) of Section 96 of the Act, 1950, the Appellate Court directed the preemptors to deposit Taka 15,000 along with the compensation thereon (as Taka 10000 along with compensation was deposited at the time of filing the pre-emption application). And in passing such order the Appellate Court clearly violated the mandate of the law. The Appellate Court failed to consider that a Court has no power to come in aid of a party guilty of non-compliance with the requirement of the statute and allow such a defaulting party chance to comply with the requirement of a provision of the statue after the expiry of the period of limitation.
16. When confronted with the above factual and legal position of the case Mr Neogi found it difficult to support the case of the pre-emptors.
17. Though the findings of the Courts below that the deed in question, in fact, was a deed of sale and not a deed of exchange, that the pre-emptors were co-shares in the case holding, the miscellaneous case was filed within time, there was no defect of party were all based on proper sifting of the evidence and the High Court Division was totally wrong in holding that the deed in question was a deed of ewaz nama and not a deed of sale, the pre-emption application must fail for non deposit of the value of the deed under pre-emption and the statutory compensation thereon as discussed above and accordingly, we find no merit in the appeal and the same is dismissed.
There will be no order as to cost.