IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Zafar Ahmed

Civil Revision No. 2184 of 2017 In the matter of:

Md. Rahim Uddin Gain

...Pre-emptee-petitioner -Versus-

Md. Mozibar Rahman Molla and others

…Opposite parties

Mr. Md. Amimul Ehsan, with Mr. Md. Ali Hassan, Advocates

...For the petitioner

Ms. Rona Nahrin, Advocate

....For the pre-emptor-opposite party No. 1

Heard on: 11.11.2024, 20.11.2024, 27.11.2024, 04.12.2024 and 05.12.2024

Judgment on: 10.12.2024

The pre-emption case being Miscellaneous Case No. 41 of 2004 filed under Section 96 of the State Acquisition and Tenancy Act, 1950 (S A & T Act) was rejected by the learned Senior Assistant Judge, Manda, Naogaon on 06.09.2010. Miscellaneous Appeal No. 115 of 2010  was  allowed  by  the  learned  Joint  District  Judge,  2nd  Court, Naogaon on 08.05.2017. Being aggrieved, the pre-emptee filed the instant civil revision and obtained Rule on 09.07.2017. The Rule has been contested by the pre-emptor-opposite party No. 1.

Section 96 of the S A & T Act was substituted by Act No. XXXIV of 2006. The instant pre-emption case was filed in 2004. Therefore, the former Section 96 shall apply to the case in hand.

The  present  opposite  party  No.  2  transferred  the  case  land consisting of 20 decimals out of 80 decimals, nature of the land being a  pond,  to  the  pre-emptee-purchaser  (present  petitioner)  by  a registered  deed  of  exchange  No.  10532  dated  31.10.2004  for  12 decimals of the land which was 500 meters away from the case jote. The pre-emptor’s case is that the deed of exchange was in fact a sale deed. The trial Court held that it was not a sale deed rather a deed of exchange and as such, the application for pre-emption of the case land was not maintainable under Section 96(10)(b). The trial Court further observed that the pre-emptor became a co-sharer in the case jote by dint of a registered heba-bil-ewaj deed No. 14832 dated 13.12.1978. The said heba-bil-ewaj deed was executed by the pre-emptor’s father in favour of the pre-emptor and his brother (present opposite party No. 2) who sold the case land to the pre-emptee-purchaser. The trial Court held that the pre-emptor was not a co-sharer in the case jote. This was another ground for rejection of the pre-emption case.

The appellate Court below, on the other hand, held that the pre- emptor was a co-sharer in the case jote by inheritance and that the deed of exchange was a sale deed. The appeal preferred by the pre- emptor was allowed accordingly.

Now,  the  pre-emptee-purchaser  is  the  petitioner  before  this Court. The learned Advocate appearing for the pre-emptee-purchaser submits that the pre-emptor was not a co-sharer in the case jote rather his interest accrued in the case jote by way of heba-bil-ewaj deed which does not confer co-shareship in the case jote. The next point argued  by  the  learned  Advocate  is  that  the  impugned  deed  of exchange was wrongly considered by the appellate Court below as a sale deed.

The learned Advocate appearing for the pre-emptor-opposite party No. 1 at the outset, candidly submits that the finding of the appellate Court that the pre-emptor was a co-sharer in the case jote by inheritance was wrong. The learned Advocate, however, submits that admittedly the pre-emptor became a co-sharer in the case jote by dint of heba-bil-ewaj deed executed by his father.

Now, the first question is whether pre-emptor became a co- sharer in the case jote whose right, title and interest accrued in the same by the heba-bil-ewaj deed. The former Section 96(1) states, “If a portion or share of a holding of a raiyat is transferred, one or more co- sharer tenants of the holding, may within four months of the service of the notice given under section 89, or, …”. Under Section 96(5)(a)(i), the mode of accrual of interest in the case jote of a co-sharer tenant is of three types, namely (a) by inheritance, (b) by purchase and (c) tenant  holding  land  contiguous  to  the  land  transferred.  Section

96(5)(a)(i) concludes that the applicant or applicants shall have the prior right to purchase under this section in order which they have been mentioned above.

The learned Advocate appearing for the pre-emptor-opposite party No. 1 refers to the case of Elahi Boksa@ Hedo and another vs. Maqbul Hossain Sarker and others, 10 BLC 535 and submits that in the reported case the pre-emptee admitted in amended written objection that the pre-emptors are co-sharers in the case jote by deed of heba executed by their father. This Division held at para 14 of the reported case that admission of the pre-emptee establishes that the pre-emptors are co-sharers in the case jote and the findings of the Courts below that the pre-emptors are not co-sharers being contrary to the materials on record are not maintainable and are liable to be set aside. The learned Advocate submits that since a tenant can become a co-sharer in the case jote by dint of heba deed, in the case in hand, the pre-emptor has become co-sharer tenant of the holding based on the heba-bil-ewaj deed.

Upon perusal of the above-mentioned reported case, it appears that the main issue in the said case was whether the pre-emptors could prove their alleged dated of knowledge of sale and, on the other hand, whether the pre-emptees could prove that the pre-emption case was hit by the principle of waiver and acquiescence. In other words, whether the pre-emption case was time barred (para 16). The observations

made in the reported case as to becoming a co-sharer in the case jote by deed of heba based on the written admission of the pre-emptee, in my view, is not the ratio of the case. In the instant case, the pre- emptee in his written objection did not make such admission, rather denied the case of the pre-emptor. Admittedly, the pre-emptor became a  tenant  in  the  case  jote  by  a  deed  of  heba-bil-ewaj.  The  legal implication  of heba-bil-ewaj deed  for the  purpose  of pre-emption, therefore, requires a brief discussion.

In Liakat Ali Sheikh and others vs. Mahatabuddin and others, 8 BLC 302, it was held:

“It is a settled principle of law that a Hiba-bil-ewaz executed in favour of the donee in exchange of prayer mat, a cap and a copy of the Holy Quran is a document carrying no pecuniary consideration. This point has been made clear in the case reported in 11 DLR 353 of which I made mention earlier. In 20 DLR 433 it was held, "The word pecuniary means money and money alone. Therefore, the prayer  mat,  however  valuable  is  not  pecuniary  consideration. Similar view appears to have been taken in the decision reported in 44 DLR 228”.

Referring to the above-quoted decision, the learned Advocate appearing  for  the  pre-emptee-petitioner  submits  that  ownership  of property obtained through heba-bil-ewaj deed is not a sale within the meaning of sale defined in Section 54 of Transfer of Property Act, 1882 which states that ‘sale’ is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

The Transfer of Property Act has not defined the term ‘price’. Clause (10) of Section 2 of the Sale of Goods Act, 1930 has defined ‘price’ as the money consideration for a sale of goods. In the case reported in AIR 1967 SC 200, the Indian Supreme Court held that the presence  of  a  money  consideration  is  an  essential  element  in  a transaction of sale; if the consideration is not money, but some other valuable consideration, it may be an exchange or barter, but not a sale.

In view of the above discussions as to the meaning of heba-bil- ewaz  and sale,  it  is  crystal  clear  that heba-bil-ewaz  does  not fall within the meaning of sale and as such, the same does not come within the ambit of 3 categories of co-sharer tenant laid down in Section 96(5)(a)(i) of the S A & T Act. Admittedly, the pre-emptor is a co-sharer in the case jote, but his interest accrued in the same by dint of heba-bil-ewaz deed. Therefore, he has no locus standi to file the pre-emption case as co-sharer tenant of the case jote.

The next point is whether the impugned exchange deed No. 10532 dated 31.10.2004 was for all practical purposes an exchange deed or a sale deed. The appellate Court below held that the deed in question was in fact a sale deed. The appeal Court observed:

“ থেমই আেলাচনা করা যাক- নািলশী ১০৫৩২ নং দিলল  out

and out a sale deed িক না। …নািলশী দিলেল    েরর ২০

শতক স  ি র সিহত িবেলর ১২ শতক স  ি র িবিনময়  দখােনা হইয়ােছ। ১নং  িতপ  িড.ডি উ-২ িহসােব  জরায়  ীকার কিরয়ােছন  য, " য জিম

আমােক দয়  সই জিম হেত নিজবেরর (দাতা) বািড় হাফ িকেলািমটার  ের z Bj¡­cl Hm¡L¡l h¡¢sl S¢jl c¡j ®hn£z ¢h­ml S¢jl c¡j Ljz” e¡¢mn£

c¢mm Hhw fË¢afr f­rl p¡rÉ fkÑ¡­m¡Qe¡u ®cM¡ k¡u ®k 2ew fË¢afr

¢L­pl ü¡­bÑ ¢L m¡­i l L¡l­Z a¡q¡l fL¤­¥ll c¡j£ 20 naL S¢j 1ew

f¢Ëafr ­L R¡¢su¡ ¢cu¡ a¡q¡l h¡¢s qC­a q¡g ¢L­m¡¢jV¡l c§­l িবেলর

জিম যাহা বছেরর  বশী ভাগ সময় পািনর িনেচ থােক এইরকম ১২ শতক

স  ি   িবিনময় কিরেব তাহা  বাধগ   নেহ। আইেনর িবধান হইল

িবিনময় ত স  ি   িবিনমেয়র উভয় প ই িবিনময় মািনয়া লইয়া     

দখেল থা েব। িক  অ s  মাক মায়  িতপে র দাবী ত িবিনময় দিলেলর

দাতা  মাঃ নিজবর রহমান  মা  া  িতপ   পে   সা  d  দান কিরয়া

িবিনমেয়র িবষয়    িতি ত কেরন নাই। ১নং  িতপে র িবিনময় ত ১২

শতক  ডাবা জিমর দখল ২নং  িতপ    িঝয়া পাইয়ােছন িক না তাহা

মািনত হয় নাই।  তরাং দিলল  out and out a sale deed

মেম  আদালেতর িনকট  তীয়মান হয়। িব  িন  আদালত তাহার আেলাচনায়

নািলশী দিলল  out and out a sale deed নেহ  মেম    য িস া 

দান কিরয়ােছন তাহা আেদৗ  ি      ও স ক হয় নাই”।

Exchange has been defined in Section 118 of the Transfer of Property Act. Section 118 is quoted below:

“118. When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an exchange.

A transfer of property in completion of an exchange can be made only in manner provided of the transfer of such property by sale.”

Admittedly, the impugned deed No. 10532 dated 31.10.2004, on the face of it, is  an  exchange deed. Since  the pre-emptor has challenged the said deed as being out and out a sale deed, the onus lies upon him to prove his contention as per Sections 101 and 103 of the

Evidence  Act.  In  the  instant  case,  none  of  the  PWs,  who  were examined by the pre-emptor, supported his case on the point. On the other  hand,  OPW1  (pre-emptee)  OPW2  and  OPW3  categorically deposed  that  the  respective  parties  took  the  possession  of  the properties which were exchanged by the impugned deed No. 10532 dated 31.10.2004. Therefore, I have no hesitation to hold that the appellate Court’s finding that the impugned deed was an out and out a sale  deed  is  based  on  misreading  of  evidence  and  also  non- consideration of material evidence. Therefore, the judgment and order passed by the appellate Court below cannot be sustained in law and facts. This being the position, I find merit in the Rule.

In the result, the Rule is made absolute. The judgment and order dated 08.05.2017 passed by the appellate Court below are set aside and those dated 06.09.2010 rejecting the pre-emption case passed by the trial Court are affirmed.

Send down the L.C.R.

Mazhar, BO