LEX/BDAD/0058/2018

Equivalent Citation: 16ADC (2019)26, 26BLC (AD)(2021)23

IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)

Civil Appeal No. 481 of 2015
Decided On: 30.10.2018
Appellants: Md. Chand Miah and Ors.
Vs.
Respondent: Al-haj Alauddin Sarker and Ors.
Hon'ble Judges:
Syed Mahmud Hossain, C.J., Muhammad Imman Ali, Hasan Foez Siddique, Mirza Hussain
Haider, Zinat Ara, Abu Bakar Siddiqee and Md. Nuruzzaman, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Mahbubey Alam, Senior Advocate instructed by Syed
Mahbubar Rahman, Advocate-on-Record
For Respondents/Defendant: M. Qumrul Haque Siddique, Advocate instructed by Nurul
Islam Bhuiyan, Advocate-on-Record
JUDGMENT
Zinat Ara, J.
1. This appeal, by leave, is directed against the judgment and order dated 12.02.2013
passed by the High Court Division in First Miscellaneous Appeal No. 45 of 2011 allowing
the Appeal and thereby setting aside the judgment and order dated 26.08.2010 passed
by the learned Joint District Judge, 2nd Court, Narayanganj in Pre-emption
Miscellaneous Case No. 26 of 2006.
2 . Facts necessary to dispose of this appeal, in a nutshell, are that Md. Chand Miah,
predecessor of the appellants Md. Moktar Hossain and others, as pre-emptor filed Pre-
emption Miscellaneous Case No. 26 of 2006 under section 96 of the state Acquisition
and Tenancy Act, 1950 (hereinafter mentioned as the Act) in the Second Court of Joint
District Judge, Narayanganj for pre-emption of the land measuring an area of 8.25
decimals under District-Dhaka, at present-Narayangonj, Mouza Hariharpara, Sub-
Register office Fatulla, appertaining to C.S. khatian No. 30, S.A. khatian No. 7, R.S.
khatian No. 31 and R.S. Plot No. 483, C.S. and S.A. Plot No. 55, bounded on the North
by Majhar Mia, South by Khitish Chandra Devnath, East by Road, West by Plot No. 53,
owned by Jashimuddin (hereinafter stated as the case land).
3. The land of C.S. Khatian No. 16 originally belonged to Titu and Mannan. Eventually,
Aman Ullam Molla, Hafiz Ullah Molla, Abdul Karim Molla and Abdul Rahim Molla became
the owners and possessors of land of the said Khatian by way of inheritance.
Subsequently, by amicable family partition among the owners of the said Khatian,
Abdur Rahim Molla, Abdul Karim Molla got .44 decimals of land of C.S. Plot No. 54.
Thereafter, Abdur Rahim Molla and Abdul Karim Molla sold the said .44 decimals of land
by registered deed No. 6170 dated 27.06.1996 in favour of Mohammad Munshi and
delivered possession to him. Mohammad Munshi gifted .22 decimals of land out of it to
his sons Shamsuddin Munshi and Nazimuddin Munshi by registered Heba Bil-Ewaj deed

22-02-2022 (Page 1 of 6) www.manupatra.com University of Dhaka

dated 31.12.1962. Mohammad Munshi then by registered deed No. 2604, dated
23.04.1965 transferred .22 decimals of land of C.S. Plot No. 54 in favour of Esektor Bibi
and delivered possession to her. Esektor Bibi by registered deed No. 4105 dated
01.06.1965 sold the said .22 decimals of land of C.S. Plot No. 54 in favour of Md.
Chand Mia, who had been in possession of the said land. On the other hand,
Shamsuddin Munshi son of Mohammad Munshi by deed No. 6246 dated 14.09.1965
transferred 11 decimals of land of C.S. Plot No. 54 in favour of the said Chand Miah and
delivered possession to him. Nazim Uddin Munshi son of Mohammad Munshi, while in
possession of the rest 11 decimals of land of C.S. Plot No. 54, by virtue of Heba-Bil-
Ewaj, died leaving behind Mohammad Munshi, Alik Bibi, Hafeza Khatun, Abdul Hannan,
Khodeza Begum, Hamida Begum and Kharija Begum as heirs, being father, mother, sons
and daughters respectively. The said heirs sold the said 11 decimals of land to Chand
Miah by registered deed No. 7132 dated 14.10.1968 and delivered possession to him. In
the said manner, Chand Miah became the owner of 44 decimals of land of C.S. Plot No.
54 and his name was correctly recorded in RS khatina No. 192 for the said 44 decimals
of land. On 08.09.2006 pre-emptor Chand Miah came to know that Nuru Uddin, Md.
Badsha Miah, Md. Shamsul Haque and Md. Zakir Hossain sold the case land, which is
contiguous south to his 44 decimals of land of plot No. 54 in favour of one Ali Uddin
Sarder by a sale deed dated 07.09.2006.
4 . Thereafter, the pre-emptor obtained a copy of the kabala and came to know
definitely about the sale on 07.09.2006. Then, he offered the pre-emptee-purchaser to
give the case land in his favour on receiving the price of the land with 10%
compensation thereon but he refused. Therefore, Chand Miah filed Pre-emption Case
No. 26 of 2006 for pre-emption of case land as contiguous land owner of southern side
of the case land.
5. The pre-emptee-purchaser contested the case by filing written objection, denying the
pre-emptors case and claiming that the petitioner is not legally entitled to preempt the
case land.
6. The learned Joint District Judge, 2nd Court, Narayangonj after recording statements
of two witnesses for the petitioner and three witnesses for the opposite parties passed
the judgment and order dated 26.08.2010 allowing the pre-emption case and thereby,
declaring title of the case land in favour of the pre-emptor and directing the pre-
emptee-purchaser to hand over possession of the case land in his favour.
7. Whereupon, the opposite party-respondent i.e. The pre-emptee-purchaser filed First
Miscellaneous Appeal No. 45 of 2011 before the High Court Division and the High Court
Division by the judgment and order dated 12.02.2013 allowed the Miscellaneous Appeal
and thereby, set aside the order passed by the learned Joint District Judge, resulting in
dismissal of Pre-emption Miscellaneous Case No. 26 of 2006. Thereupon, the heirs of
Chand Miah (the pre-emptor) filed Civil Petition for Leave to Appeal No. 1553 of 2013
before this Division and leave was granted by order dated 5th July, 2015 on the
following two grounds:
"I. Because, as per provisions of section 6 of the General Clauses Act, 1897 the
right of pre-emption of the petitioners as contiguous land holder will not be
affected, since the preemption application having been filed before amendment
of section 96(1) of the State Acquisition and Tenancy Act, the High Court
Division committed error of law in not considering the aforesaid provision of
law and as such the judgment and order of the High Court Division is liable to
be set aside. II. Because, the alleged kabala was executed on 07.09.2006 and

22-02-2022 (Page 2 of 6) www.manupatra.com University of Dhaka

 the preemption has been filed on 18.09.2006 i.e. before amendment of section
96(1) of the State Acquisition and Tenancy Act, effected from 20.09.2006 and
as such the amended provision will not be applicable in the instant case, rather
section 6 of the General Clauses Act, 1887 (sic, it would be 1897) has full
application to the facts and circumstances of the instant case, the High Court
Division committed error of law in not considering the aforesaid provision of
law and as such the judgment and order of the High Court Division is liable to
be set aside."
8. Mr. Mahbubey Alam, the learned Senior Advocate for the pre-emptor-appellants takes
us through the judgment and order of the Second Court of Joint District Judge,
Narayangonj as well as the High Court Division and submits that the High Court Division
allowed the miscellaneous appeal on the ground that the provision of section 96 of the
Act was amended with effect from 20.09.2006 and so, the contiguous land owners lost
their right of preemption for transfer of a contiguous land. He next submits that the pre-
emption case was filed by the pre-emptor as contiguous land owner before amendment
of section 96 on of the Act and therefore, as per provision of section 6 of the General
Clauses Act, 1897 the petitioner's right of preemption as a contiguous land owner was
not affected as the amendment was not given retrospective effect. But the High Court
Division committed an error of law in not considering the same. He further submits that
the kabala is dated 07.09.2006 and the pre-emption case was filed on 18.09.2006 i.e.
before amendment of section 96 of the Act and, as such, the judgment and order of the
High Court Division suffers from legal infirmity and liable to be set aside.
9 . In reply, Mr. M. Qumrul Haque Siddiqui, the learned Advocate for the respondent-
purchaser supports the judgment and order passed by the High Court Division and
contends that on consideration of the evidence on record as well as the relevant laws,
the High Court Division decided that the kabala under pre-emption was registered on
30.12.2007 under section 60 of the Registration Act, 1908 and therefore, the cause of
action to file the pre-emption case arose on 30.12.2007 and the amendment of section
96 came into operation on 20.09.2006. Therefore, the amended provision of section 96
of the Act is applicable in the instant case. He next contends that the High Court
Division rightly and legally allowed the appeal and thus, dismissed the pre-emption
case. He also submits that it is a settled principle of law that the cause of action for
filing a pre-emption case under section 96 of the Act arises from the date of registration
of the kabala under the Registration Act and therefore, the Appeal is liable to be
dismissed.
1 0 . In support of his contentions, Mr. Siddiqui has relied on the decisions of the
following cases:
(i) Ayesha Khatun (Musammat) Vs. Musammat Jahanara Begum & others,
reported in 43 DLR (AD) 9; and
(ii) Abdur Rahman @ Abdul Rahman Vs. Maklis Ali and another, reported in 31
DLR (AD) 118.
11. The fundamental question to be decided is, as to when the date of cause of action
arises in order to file a pre-emption case under section 96 of the Act. The provision of
section 6 of the General Clauses Act, 1897 was also mentioned in the leave granting
order. But, in fact, it is not at all relevant in deciding the merit of the legal question as
it is no bodies case that retrospective effect was given to the amended provision of
section 96(1) of the Act. Therefore, we shall confine ourselves about the question of

22-02-2022 (Page 3 of 6) www.manupatra.com University of Dhaka

cause of action for filing of a pre-emption case under section 96 of the Act.
12. In the instant case, it transpires from the materials on record that the pre-emptor
claimed pre-emption of the case land as contiguous land owner. Admittedly, the
provision of section 96 of the Act was amendment by the omitting the provision of pre-
emption by a contiguous land owner to the land transferred by a kabala.
13. The relevant provision of section 96(1) of the Act as amended reads as under:
"96. Right of Pre-emption-(1) if a portion or share of a holding of raiyat is sold
to a person who is not a co-sharer tenant in the holding, one or more co-sharer
tenants of the holding may, within two months of the service of the notice
given under section 89, or, if no notice has been served under section 89,
within two months of the date of the knowledge of the sale, apply to the Court
for the said portion or share to be sold to himself or themselves:
Provided that no application under this section shall lie unless the
applicant is-
(a) a co-sharer tenant in the holding by inheritance; and
(b) a person to whom sale of the holding or the portion or
share thereof, as the case may be, can be made under section
90:
Provided further that no application under this section shall lie
after expiry of three years from the date of registration of the
sale deed............."
1 4 . It appears from the statement of P.W. 1, pre-emptor, Md. Chand Miah (now
deceased), that he categorically stated in his cross examination that,
Thus, it is evident that P.W. 1 himself admitted that it
was endorsed and registered in the Balam Book on 30.12.2007. This clearly shows that
the document was registered under section 60 of the Registration Act, 1908 on
30.12.2007.
15. In this context the provision of section 60 of the Registration Act may be quoted
below:
"60. Certificate of Registration-(1) After such of the provisions of sections 34,
35, 58 and 59 as apply to any document presented for registration have been
complied with, the registering officer shall endorse thereon a certificate
containing the word "registered", together with the number and page of the
book in which the document has been copied.
2) Such certificate shall be signed, sealed and dated by the registering officer,
and shall than be admissible for the purpose of proving that the document has
been duly registered in manner provided by this Act, and that the facts
mentioned in the endorsements referred to in section 59 have occurred as
therein mentioned".
(Bold, emphasised)
1 6 . Thus, it is evident that a document cannot be treated as registered before the
certificate is endorsed thereon and signed, sealed and dated in terms of section 60 of

22-02-2022 (Page 4 of 6) www.manupatra.com University of Dhaka

the Registration Act.
17. In the case reported in 43 DLR (AD) 9, it has been decided by the Apex Court as
under:
".......................................It is now a settled principle of law that the cause
of action under section 96 of the State Acquisition and Tenancy Act accrues on
the date of the registration of the deed of sale, when registration is compulsory
see Abdur Rahman Vs. Maklis Ali 31 DLR (AD) 118. This is because the right of
preemption arises on the completion of the transfer. It could not be said to
have completed earlier by reason of section 47 of the Registration Act though
hereunder the instrument of transfer commences to operate from earlier date. If
however, an application for pre-emption is filed before the completion of the
transfer i.e. The registration of the sale, as in the appellant's case, it is not to
be dismissed on the ground of prematurity if the deed of transfer is registered
during the pendency of the pre-emption proceeding."
(Bold, to supply emphasis)
18. In the case reported in 31 DLR (AD) 118 by referring to the High Court Division
cases of Md. Meher Ali Mandol Vs. Muhammad Karam Ali Sarkar, LEX/HEPK/0051/1964 :
(1965) 17 DLR 365 and Abdur Rahman Vs. Baser Ali, (1969) 21 DLR 99; it has been
decided by the Appellate Division as under:
.......................................In these decisions it has been held that the cause
of action for pre-emption accrues on the date of the registration of the kabala
where registration is compulsory. As a proposition of law, no exception can be
taken to this view, but where the learned Judge fell into an error in holding that
the prematurity of the cause of action, if, matured during the pendency of the
proceeding is not curable............."
(Underlined by us)
19. From the aforesaid cases, it is clear that the date of cause of action in a preemption
case arises when the kabala concerned is registered under the Registration Act and not
on the date of execution thereof. However, if a case is filed prior to registration but is
registered during pendency of the said case, the prematurity would be cured. Thus, the
cause of action of a preemption case actually arises from date of registration of a
document under section 60 of the Registration Act.
20. The main argument of Mr. Mahbubey Alam, learned Senior Advocate, is that the
pre-emption case was filed on 18.09.2006 before amendment of section 96 of the Act,
which came into operation on 20.09.2006 and so, the pre-emptor is entitled to pre-
emption of the case land.
21. In the instant case, the cause of action for filing the pre-emption case arose on
30.12.2007 i.e. the date when the kabala under pre-emption was registered under
section 60 of the Registration Act, 1908 and the amended provision of section 96 of the
Act came into operation on 20.09.2006 by Act No. XXXIV of 2006. Therefore, through
the pre-emption case was filed on 18.09.2006, it was before the actual date of cause of
action. Thus, filing of the pre-emption case by contiguous land owner having not in
existence on the date of cause of action, Chand Miah had no legal right of pre-emption
to the case land transferred by the kabala concerned as a contiguous land owner.
22. In the above facts and circumstances, we find that the High Court Division lawfully

22-02-2022 (Page 5 of 6) www.manupatra.com University of Dhaka

allowed the appeal and thereby, set aside the judgment and order passed by the learned
Joint District Judge, 2nd Court, Narayangonj.
23. We find no ground for interference with the impugned judgment and order passed
by the High Court Division.
24. Accordingly, the appeal is dismissed and the impugned judgment and order dated
12.02.2013 passed by the High Court Division in First Miscellaneous Appeal No. 45 of
2011 is hereby affirmed.
© Manupatra Information Solutions Pvt. Ltd.

22-02-2022 (Page 6 of 6) www.manupatra.com University of Dhaka