The New Nation - Internet Edition

Appellate Division

(Civil)

Mohammad Fazlul Karim-J

Md. Joynul Abedin-J.

Md. Hassan Ameen-J.

CIVIL APPEAL No.133 of 2003.

(From the judgment and order dated 30.6.2002 passed. by the High Court Division in Civil Revision No.1727 of 1995.)

Md. Dewan Ali ………….Appellant.

Vs.

Md. Jasim Uddin and others

tttt. ..Respondents.

For the Appellant : Mr. Afsar Uddin Ahmed Khan, Advocate, instructed by Mr. AK.M. Shahidul Huq, Advocate-on-Record.

For Respondent No.1 : Mr. Md. Nawab Ali, Advocate-on-Record.

Respondent

Nos. 2-7 : Not represented.

Judgment: January 6, 2008

State Acquisition and Tenancy Act, 1950-

Section 96- Right of pre-emption-Whether extinguishes by waiver, acquiescence and estoppel-

The right of pre-emption arises on the date of the transfer of the disputed land. Therefore there cannot be waiver of the right before its accrual. When not specifically proved by clear evidence on record the contention of waiver of the right of pre-emption cannot be accepted. The apex Court confirmed the decision of the lower appellate Court and the High Court Division and dismissed the appeal.

Careful scrutiny reveals that the evidence available on. record on the point as to whether the pre-emptor had the knowledge of the sale of the case land to the purchaser-pre-emptee is contradictory. Moreover, the purchaser-pre-emptee has failed to examine some important witnesses who, according to the purchaser pre-emptee, were present when the preemptor was offered to buy the case land and he refused to do so and consented to the sale of the same to the purchaser pre-emptee. The purchaser pre-emptee therefore could not prove that the preemptor was offered to buy the case land in the first place and he not only refused to buy the same but also consented to the same being sold to and purchased by the purchaser pre-emptee ….(Para 10)

Right of pre-emption acmes on the date of registration of the sale deed. The preemptive right of purchase of the case land accrued to the pre-emptor only after the case land was sold to the purchaser pre-emptee by its owner and not before. Preemptive right does not exist before sale and so it is not enforceable before sale. Any such right before sale is an inchoate and immature right. Hence no conduct of the pre-emptor before sale of the case land refusing to purchase the same or consenting sale thereof to another can constitute waiver, acquiescence or estoppel demolishing his right of preemption. The bare requisite for extinction or demolition of pre-emption right lies in the accrual or existence of such right. In the instant case, the facts and circumstances proved on evidence do not establish that the conduct of the preemptor amounted to waiver, acquiescence or estoppel affecting his right of pre-emption ………(Para 14)

JUDGMENT

MD. JOYNUL ABEDIN-J: This appeal by leave is directed against the judgment and order dated 30.6.2002 passed by a Single Bench of the High Court Division in Civil Revision No.I727 of 1995 discharging the Rule.

2. Relevant facts are that Mizanur Rahman and Yakub Ali owned and possessed .42 acres of land of Plot No. 31 of S.A. Khatian No. 40 of Mouza Kaernpur under Police Station-Araihazar, District Narayanganj. The S.A. Khatian was prepared in their names. Mizanur Rahman sold his .21 acres of land to Akkas All. Akkas ali died leaving his son Abdur Rashid as his only heir. Abdur Rashid sold the said land by two registered deeds on 6.5.1987 to Md. Jasimuddin (the preemptor) now respondent. Said Yakub Ali sold his 21 acres of land to his wife Salehe Bibi on 27.2.1965. Saleha Bibi on 28.1.199: sold the said land, which is the case land, Md. Dewan Ali (the pre-emptee) now appellant. Jasimuddin obtained certified copy of the sale deed of the case land on 11.4.1993 and came to bearn definitely about the said sale and filed pre-emption Miscellaneous Case No.6 1993 of against the. appellant Md. Dewan claiming him. as the co-sharer in the holding alleging that said Md. Dewan, as a stranger purchaser and Saleha Bibi sold the case land to him (Md. Dewan Ali) without serving notice under section 89 of the State Acquisition and Tenancy Act upon him.

3. Md. Dewan Ali and Saleha Begum contested the preemption case by filing a joint written objection contending, inter alia, that Akkas AIi admittedly was the owner of .21 acres of land and he died leaving one son Abdur Rashid and two daughters and they were necessary parties in the case, but they not having been made parties the case was bad for non-joinder of necessary parties. Saleha Begum in the month of Agrahayan 1397 BS. mortgaged the case land for Tk. 8,000/- to the pre-emptor Jasimuddin on the basis of an unregistered agreement on condition that on re-payment of the said money the pre-emptor Md. Jasimuddin would restore possession of the case land to her. Later on, Saleha Bibi being in need of cash money to clear up the bank debt of her deceased husband Yakub Ali offered to sell the case land to Jasimuddin as it was earlier mortgaged with him. But the pre-emptor Md. Jasimuddin refused to purchase the same. Thereafter, within the full knowledge of the pre-emptor Md. Jasimuddin the case land was sold to the pre-emptee Md. Dewan Ali. It is also contended in the written objection that the pre-emptor Md. Jasimuddin in presence of respectable persons of the locality including Mohammad Ali, O.P.W.2, refused to purchase the case land and pressed for refund of his mortgage money of Tk.8,000/- by Saleha Bibi through O.P.W.2 Mohammad Ali. Accordingly, Saleha Bibi refunded the aforesaid amount of mortgage money to pre-emptor Md. Jasimuddin and sold the case land to pre-emptee Md. Dewan Ali by a registered sale deed and the pre-emptor Md. Jasimuddin delivered possession of the case land to the pre-emptee Md. Dewan Ali.

(To be continued)