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Official Citation: 1963 PLD 939
Court / Jurisdiction: DHAKA-HIGH-COURT
Parties: SYED ABDUL KARIM AND ANOTHER vs HARENDRA CHANDRA DHUPI AND OTHERS
This judicial decision was delivered by the DHAKA-HIGH-COURT. The matter involves proceedings between SYED ABDUL KARIM AND ANOTHER and HARENDRA CHANDRA DHUPI AND OTHERS, officially reported as 1963 PLD 939. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
P L D 1963 Dacca 939
P L D 1963 Dacca 939
Before Chowdhury C. J. and M. R. Khan, J
Syed ABDUL KARIM AND ANOTHER----Petitioners
versus
HARENDRA CHANDRA DHUPI AND OTHERS ----Opposite‑Parties
Civil Revision No. 838 of 1959, decided on 28th April 1961.
East Bengal State Acquisition and Tenancy Act (XXVIII of 1951), S. 96, (2) (4) (5)‑‑Right of pre‑emption for co‑sharer tenants and not for co‑sharer of land‑Contiguity in respect of all land sold, not necessary‑All contiguous holders to be imp leaded‑Subsection (2), mandatory and not directory‑Priority arises according to subsection (5)‑Under subsection (4) time runs from date of knowledge of transfer‑Imp leading as party against whom time had expired‑Not allowed.
M. Behtar All for Petitioners.
B. C. Das for Opposite‑parties.
Syed Mohsin Ali for the Deputy Registrar.
JUDGMENT
CHOWDHURY, C. J.‑This rule is directed against the order of the lower appellate Court in Miscellaneous Appeal No. 428 of 1958 in the Third Court of the Subordinate Judge, Barisal, which arose out of Miscellaneous Case No. 159 of 1957 in the First Court of the Munsif, Patuakhali, for pre‑emption under section 96 of the East Bengal State Acquisition and Tenancy Act.
2. The petitioners in this rule filed an application for pre emption under section 96 of the East Bengal State Acquisition and Tenancy Act for pre‑emption of the portion of a raiyari holding transferred by a registered kabala dated 1st March 1958, by opposite parties Nos. 48, 49 and 50 in favour of opposite party No. 1 for a sum of Rs. 4,000. The petitioners claimed pre‑emption under that section both as co‑sharer tenants and as tenants holding land contiguous to the land transferred. The petitioners Syed Abdul Karim and Syed Daliluddin also imp leaded the transferor and the transferee besides 46 others as holders of the adjacent land. Although the opposite parties Nos. 2, 19, 34, 36, 27, 43 and 46 have become co‑petitioners Nos. 3 to 9 and opposed the petitioners' claim on all the points, at the same time they themselves claim pre‑emption as holder of land contiguous to the land sold. Opposite parties Nos. 20 and 35 also became co‑petitioners Nos. 10 and 11. and they also claim pre‑emption as contiguous tenants in respect of plots Nos. 6993, 6935 and 6922.
3. It also appears that the petitioners in course of trial abandoned their claim of pre‑emption in respect of three plots, namely, plots Nos. 6933, 6938, and 6994 as they were not in a position to prove that they are holders of lands contiguous to those plots. Therefore, they had to confine their claim to the rest of land of the kabala though they claimed pre‑emption in respect of the entire land transferred and deposited the entire consideration money of Rs. 4,000 with statutory damages.
4. The trial Court found that the co‑petitioners, who also claimed pre‑emption, came late to be out of time under sub section (4) of section 96 of the East Bengal State Acquisition and Tenancy Act which provides for filing an application "with in the period referred to in subsection (1) or within two months of the date of the notice of the application under clause (b) of subsection (3), whichever be earlier". As the learned Munsif found that they were aware of the transfer from long before and did not file the application for pre‑emption within the time allowed to them, he granted pre‑emption to the petitioners in respect of the remaining 7 plots of the kabala land which constitute 2/3rd of the land transferred after excluding the three plots in respect of which the petitioners abandoned their claim, and accordingly granted refund of 1/3rd of the consideration money deposited by them and 10 per cent. compensation.
5. Against this decision there was an appeal by the opposite party No. 1. The only question pressed before the appellate Court was that some of the tenants holding land contiguous to the land transferred not having been imp leaded within the time during which application for pre‑emption is to be filed under subsection (1) of section 96 of the East Bengal State Acquisition and Tenancy Act, 1.950, the original application was bad for defect of parties and subsequent addition of those as parties, made the application barred by limitation.
6. It may be mentioned that the land sold by the kabala, the subject‑matter of pre‑emption, consists of 10 plots, namely, R. S. plots Nos. 6906, 6933, 6938, 6970, 6985, 6990, 6994, 7002, 8 annas of 6984 and 8 annas of 6984/7222 of R. S. A kharian No. 747. The petitioners claimed pre‑emption as co -sharer tenants as they are co‑sharers in respect of 8 annas share of plots Nos. 6984 and 8 annas share of 6984/7222. Eight annas of each of these 2 plots along with other plots con stitute the disputed raiyati recorded in khatian No. 747, and the remaining 8 annas share of each of these two plots along with some other plots constitute raiyati of petitioner' khatian No. 745. Therefore, petitioners claimed pre‑emption in respect of this 8 annas of plot No. 6984 and 8 annas of plot No. 6984/ 7222 of khatian No. 747 as co‑sharers, because the remaining 8 annas share appertains to their khatian No. 745. Section 96 of the East Bengal State Acquisition and Tenancy Act allows pre emption not to a co‑sharer of a land but to co‑sharer of a tenancy or holding or rather to a co‑sharer tenant. The peti tioners cannot be said to be co‑sharer tenants of the tenancy recorded in khatian No. 747, though portions of the land of plots Nos. 6984 and 6984/7222 appertain to their tenancy recorded in khatian No. 745. Therefore, as co‑sharer tenants the peti tioners are not entitled to claim pre‑emption as they are not cotenants or co‑sharers in the tenancy of khatian No. 747. If they could maintain their application for pre‑emption as co‑sharers of the holding, there would not have arisen any question of imp leading the holders of land contiguous to the land transferred on account of priority given to the co‑sharer of the holding under subsection (5) of section 96 and no question of limitation also would have arisen in that case. Subsection (5) of section 9 of the East Bengal State Acquisition and Tenancy Act gives priority first to (i) the co‑sharer tenant whose interest accrued by inheritance, then to (ii) a co‑sharer tenant whose interest has accrued by purchase, and lastly to (iii) tenant or tenants holding land contiguous to the land transferred; first class excludes both the second and the third class, and the second excludes the third. So, in a claim for pre emption by a co‑share of a first category, he need not imp lead any of the other 2 cate gories. In case of pre‑emption by any of the 2nd or 3rd category he is to imp lead not only all of the same category but also those of the higher category or categories, as parties in order to give them an opportunity to claim pre‑emption, and if they also claim pre‑emption, the land pre‑empted, are to be allotted according to the convenience of the respective claimants of the same category as provided in subsection (6) (b) of section 96 of the East Bengal State Acquisition and Tenancy Act, "the Court shall apportion the holding or the portion or share of the holding among them in such manner as it deems equitable ; and the applicant or applicants under subsection (1), if found to be entitled to a refund of any money, shall get the refund from the amount deposited by the applicant or applicants under clause (b) of subsection (6)".
7. Now, coming to consider the case of the petitioners on the basis of "tenant holding land contiguous to the land trans ferred", the trial Court in dealing with issue No. 5, namely, whether the co‑petitioners are entitled to pre‑emption propor tionately with the petitioners, has come to the finding that 2 sets of the co‑petitioners have applied for pre‑emption long after 4 months of their knowledge, and observed:
"The law is that the co‑petitioners must come within months of their knowledge or within 2 months of the service of notices whichever is earlier. In this case, both the groups of co‑petitioners had earlier knowledge on receipt of notices from Barisal and that was more than 4 months before they applied here. Moreover, they could not prove suppression of the notices after the case was filed here."
There is another group of persons, namely, Aminuddin, Maminud din and Halim Gazi who were subsequently added to the pre emption petition as Nos. 51, 52 and 53 on 22nd June 1957, on the objection of the opposite parties, though the petition for pre‑emption was filed of 15th August 1956, on the allegation that the petitioners came to know of the transfer on 9th July 1956: The learned Subordinate Judge is of the view that the provision in subsection (2) of section 96, viz., "all the co‑sharer tenants of the holding and all the tenants holding land contiguous to the land transferred and the transferee shall be made parties" is mandatory, and as the opposite parties Nos. 51, 52 and 53 were not added as parties in this application when it was filed on 15th August 1956, the application was not properly constituted. Subsequently, when the opposite parties Nos. 51, 52 and 53 were added on 22nd June 1957, with the permission of the Court it was out of time; therefore, the application when properly constituted on 22nd June 1957, was barred by limitation. In support of this view, the learned Sub ordinate Judge relied on the decision of Nasim Ali, J., in the Division Bench case of Dinesh Chandra Chowdhury and others v. Rajendra Chandra Kar and others (42 C W N 316).
8. The question is whether the provision of subsection (2) of section 96 of the East Bengal State Acquisition and Tenancy Act quoted above is mandatory. This subsection consists of two parts. The first part deals with an application filed under subsection (1) by a co‑sharer tenant or tenants in which all other co‑sharer tenants of the holding and the transferees are to be made parties. The second part deals with an application filed by a tenant or tenants holding land contiguous to the land transferred. In that case all the co‑sharer tenants of the holding and all the tenants holding land contiguous to the land transferred and the transferees are to be made parties.
9. Then subsection (5) (b) of the Act provides that if more than one tenant holding land contiguous to the land transferred apply under this section, the Court shall determine that order of priority as among such tenants having regard to the circums tances mentioned in this subsection. Further, subsection (7) provides that when orders of pre‑emption are passed in favour of more than one applicant, the Court shall apportion the holding or the portion or share of the holding among them in such manner as it deems equitable; and the applicant or applicants under subsection (1) if found to be entitled to a refund of any money, shall get the refund from the amount deposited by the applicant or applicant under clause (b) of sub section (6).
10. It is to be noted that in subsection (1) of section 96, it is provided that the application for pre‑emption is to be made within four months from date of notice under section 89, and if no notice has been served then within four months from the date of the knowledge. Section 89 provides for serving notice on the co‑sharer tenant, but there is no provision for serving notice on the tenant holding land contiguous to the land trans ferred. So, it is provided in subsection (1) of section 96 that) such a tenant may file an application within four months from the date of the knowledge of such transfer. Subsection (4) provides that when an application has been made under sub section (1) any of the remaining co‑sharer tenants including the transferee and the tenants holding land contiguous to the land transferred may within the period referred to in subsection (1) or within two months of the date of the service of the notices of the application under clause (b) of subsection (3), whichever be earlier, apply to join in the said application for pre‑emption, Bat those who have not applied either under subsection.(t) or under subsection (4) shall not have any further right to purchase under this section. All these provisions clearly indicate that the provision that all the co‑sharer tenants of the holding and all tha tenants holding land contiguous to the land transferred shall be made‑parties are mandatory and not directory ; because the cause of action for pre‑emption of any transfer accrues to those who are entitled to file an application for pre‑emption and against the transferee, but this right of the applicant or applicants is not absolute, but subject to the right of other co‑sharers and other holders of land contiguous to the land transferred, as the case may be, so, in order to get relief in the shape of pre‑emption by the applicant, the other interested persons must be imp leaded to enable the Court to adjudicate the claim of the respective parties completely, and relief cannot be given in the absence of any such party. The principle embodied in Order I, rule 9 of the Code of Civil Procedure seems to have no application because the right of pre‑emption given under section 96 is not absolute and independent right, but subject to the right of other co‑sharers or other holders of lands contiguous to the land sold. Order I, rule 9 of the Code runs as follows:
"No suit shall be defeated by reason of the misjoinder or non‑joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it."
11. In the case of pre‑emption because of the special pro vision of the Act, rights of the parties cannot be determined without considering the right of others. The principle of Order 1, rule 9 of the Code cannot be made applicable. In the circumst ances, it cannot be said that the tenants holding lands contiguous to the lands transferred are not necessary parties as they are persons whose presence is necessary for the proper constitu tion of the pre‑emption application. Their presence is not only a matter of convenience but of absolute necessity to enable the Court to adjudicate more effectively and completely. Order 1, rule 9 of the Code does not apply when a cause of action arises against a number of persons jointly because when one . of such persons is eliminated no cause of action subsists against other as in the suit for partition. In the case of pre‑emption under section 96 of the Act, the cause of action arises not only against the transferee but also against the co‑sharer and other holders of contiguous lands. We must say that there is no distinction between an application for pre‑emption by a tenant holding land contiguous to the land transferred and an application by a co‑sharer tenant except in that in the case of an application by a tenant holding land contiguous to the land transferred he cannot maintain his application without imp leading all the co‑sharer tenants, though in case of an application by a co -sharer, it can be maintained without imp leading the holder of land contiguous to the land transferred because of the priority of the co‑sharer tenant over the tenant holding land contiguous to the land transferred. The position, therefore, comes, to this:
(i) In the case of an application by a co‑sharer by inheri tance all other co‑sharers by inheritance are to be imp leaded;
(ii) In the case of an application by a co‑sharer by purchase all other co‑sharers whether by inheritance or by purchase are to be imp leaded;
(iii) In the case of an application by a holder of land con tiguous to the land transferred, all co‑sharer tenants, either by inheritance or by purchase, as well as other holders of land contiguous to the land transferred must be imp leaded.
12. In these circumstances, particularly in view of the fact that the applicants are not co‑sharer tenants, we think the view taken by the learned Subordinate Judge that opposite parties Nos. 51, 52 and 53 subsequently added as parties are necessary parties, and without them the application was not properly constituted within time is correct, and his view is amply supported by the decision of Nasim Ali, J., in the case of Dinesh Chandra Chowdhury and others v. Rajendra Chandra Kar and others. There the right of pre‑emption was given to the landlord and cause of action was not to any individual landlord, but to the whole body of the landlords. Under the Bengal Tenancy Act as it stood then there was no provision for pre‑emption by one of the several landlords without imp leading the others under section 148 of the Bengal Tenancy Act. So it has been held in that case that without imp leading the other landlords the application for pre‑emption filed by one of the landlords against the transfer of a raiyati holding or a portion of it by the raiyal to a stranger was not properly constituted and not maintainable, and the subsequent addition of the other co‑sharer landlords brought the case within the meaning of section 22 of the Limitation Act read with section 29 (2) of the Limitation Act. The principle laid down in that case is applicable to the facts of the present case.
13. Another question is whether on account of the surrender of the claim of pre‑emption by the petitioner in respect of the three plots mentioned in the judgment, the petitioner is entitled to get pre‑emption which would practically mean a partial pre emption which law does not generally allow, as has been held to the case of Khoka Bairagi and others v. Bhahani Dasi others (49 C W N 242), as well as in the case of Behari Lal Roo and others v. Pulin Behary Paul and another (38 G W N 654).
14. The learned Advocate for the petitioners. Mr. Behtar Ali, contends that the petitioners claimed pre‑emption of the whole of the land transferred, but as there was some doubt a, to the interpretation of section 96 of the Act whether pre‑emption is allowed to a holder of land contiguous to the land transferred, means, contiguous to each and every plot of land transferred; and as the petitioners could not produce his deed of exchange at the time of hearing of the case, he, under a misconception, had to waive his right of pre‑emption in respect of the three plots mentioned above under the impression that their claim on contiguity is at least maintainable to the extent of land con tiguous to their land. In support of his contention, he referred to the evidence of P W. 1.
15. We find considerable force in the argument of Mr. Behtar Ali, the learned Advocate for the petitioners. He deposited the entire amount of consideration money claiming pre‑emption in respect of whole of the land; but as he failed to prove contiguity of his land to the three plots, he thought it was better for him to give up those plots, apprehending that he may not get pre‑emption in respect of those lands. But that is not the position in law, It is no doubt true that pre‑emption must be for the whole of the land transferred and there cannot be any partial pre‑emption. But so far as the holder of the land contiguous to the land transferred is concerned, the section, nowhere says that he must be contiguous to all the lands or plots of land transferred, particularly, in view of the constitution of holding in this part of the country which generally does not form a compact block but consists of different parcels of land scattered over a field or fields in one or more villages. The Legislature could not have intended that contiguous holder on whom right of pre‑emption has been given should have contiguity in respect of all the lands sold. It is clear from the fact that it has been made incumbent that all the contiguous holders of land should be imp leaded as parties to the pre‑emption proceeding so that every contiguous holder may get their legitimate share in the pre‑emption. But suppose the other contiguous holder; are trot claiming any pre‑emption or they failed to claim any pre emption within the time allowed as in the present case, then does it necessarily follow that the claim of pre‑emption of the whole of the land transferred by a holder of land contiguous to only a portion of the land transferred should fail or should it fail in respect of the other lands transferred? In that case, would it not be a partial pre‑emption which is contrary to law and principle of pre‑emption? On the other band, if it is held that lands contiguous to the land transferred means contiguity to the whole of the land transferred then one who has contiguous to one side or one of several plots of land transferred shall have no right of pre‑emption. This would be against the provision of section 96 of the Last Bengal State Acquisition and Tenancy Act, 1950. From the construction of the whole section this cannot be inferred, until and unless we read something which is not in the section
16. The petitioners did not claim proportionate refund of the money though the Munsif has granted him a refund to the extent of 1/3rd. Suppose, the petitioners after obtaining full pre‑emption abandon any portion of it in favour of the trans feree, is there anything wrong? If he has abandoned three plots on a mis‑conception of the law, not of fact, we do riot think that should stand on the way of his getting pre‑emption of the whole land on the basis of the entire consideration money he has already deposited.
17. There is still a further question left. It is no doubt true that opposite parties Nos. 51, 52 and 53 were said to be holders of land contiguous to the land transferred in the objection filed by the opposite party No. 1 in the trial Court and they were imp leaded by the petitioners "to meet the objection of the opposite party No. 1". There has been no investigation whether opposite parties Nos. 51, 52 and 53 are holders of land conti guous to the land transferred or not. We think this question should be investigated before it is held that the application filed by the petitioners for a pre‑emption was not properly con stituted to their absence. If after investigation it is found that the opposite parties Nos. 52 to 53 are holders of land contiguous to the land transferred, it shall be necessary to determine a further question whether the independent right of the said opposite parties to seek pre‑emption under subsection (1) of section 96 within four months of the date of their own knowledge of the transfer became unenforceable by the date of presentation of the petitioner's application for pre‑emption on account of the lapse of the said period of four months. If so, the petition for pre‑emption shall be deemed to have been duly constituted, although the opposite parties No. 51 to 53 were added as parties beyond the period of four months of the petitioners' knowledge of the transfer. The simple reason for this is that even if the opposite parties Nos. 51 to 53 had been included in the original petition for pre‑emption at the time of its presentation, they could not have enforced their right of pre‑emption because of the expiry of four months from the date of their own knowledge of the transfer, and in that event, o the date of presentation of the application the petitioners' right of pre‑emption could not be subject to the right of the opposite parties Nos. 51 to 53. If the expression in subsection (4) of section 96 had been "whichever is later" instead of "whichever is earlier", different consideration would have arisen.
18. The result, therefore, is that though the reasons given by the learned Subordinate Judge is accepted, we set aside his judgment and order as he has not come to any finding on the two points mentioned above, and sent the case back on remand to the trial Court for determination of the questions mentioned above, after taking such evidence as the parties may choose to adduce on those points only, and to dispose of the case according to law, in the light of the observations made above.
There will be no order as to costs.
M. R. KHAN, J.‑---I agree with my Lord the Chief Justice.
S. B./A. H.
Case remanded.