LEX/BDAD/0036/1978

Equivalent Citation: 33 DLR(AD) (1981) 305

IN THE SUPREME COURT OF BANGLADESH

(APPELLATE DIVISION)

Civil Appeal No. 122 of 1977

Decided On: 13.07.1978

Md. Mafizuddin Patwari being dead his heirs Md. Tafazzal Hossain Patwari and others
Vs.
Abdul Hakim Miazi being dead his heirs Mobarak Hossain Miazi and others

Hon'ble Judges:
F.K.M. Abdul Munim, Ruhul Islam and Badrul Haider Chowdhury, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: K.A. Bakr, Attorney General, instructed by A. Baset Majumder,
Advocate

For Respondents/Defendant: Md. Yasin, Advocate, instructed by Mohd. A. Aziz, Advocate-on-

Record

Subject: Land Laws

Catch Words

Mentioned IN

Relevant Section:
Bengal Tenancy Act - Section 88A; Bengal Tenancy Act - Section 88A(1)(a)

Prior History:
From the judgment and order dated 27-8-75 passed by the High Court in Civil Revision No. 505 of
1970

Citing Reference:

Discussed

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2

Mentioned
1

Case Note:
Property - Pre-emption right - Section 88A and 88A(a)(1) of Bengal Tenancy Act - Appeal
filed against grant of pre emption right to Respondent - Whether an order of sub-division of
tenancy under Section 88A of Act without proper compliance with proviso Section
88A(a)(1) of Act was without jurisdiction and could be treated to be so by a Civil Court in a
collateral proceeding - Held, evidence showed that finding of Trial Court that all co-sharers
accepted khariz and paid rent on basis of khariz was correct - Civil Court has found that
proper compliance of Section 88A(a)(1) of Act had been proved - Non-compliance with
Section 88A(a)(1) of Act would not render proceeding without jurisdiction as remedy has
been provided by way of appeal - Therefore Civil Court could not knock it out by holding it
as having been made without jurisdiction in a collateral proceeding - Appeal allowed. [7],
[11]

Disposition:
Appeal Allowed

JUDGMENT

Badrul Haider Chowdhury, J.

1. This appeal by special leave arises out of a judgment and order passed by High Court in Civil
Revision No. 505/1970 affirming those passed by the Addl. District Judge, Comilla in Misc. Appeal
No. 148/65 which reversed those passed by the Subordinate Judge, 3rd Court, Comilla in Misc.
Case No. 74/60 dismissing the petition under section 26(F) of the Bengal Tenancy Act. The pre-
emptor purchaser herein the respondent brought a Misc. Case for pre-emption under section 26(F)
of the Bengal Tenancy Act in respect of the disputed land measuring 2.23 acres out of Plot No.
227 of khatian No. 74 on the ground that he is a co-sharer in the kabala land that was executed on
26.3.58 without serving any notice of transfer and as such he is entitled to pre-empt the same.

2. The appellant-purchasers opposite party contested this case on the ground that the petitioner is
no longer the co-sharer in the holding and has no locus standi to claim pre-emption. It was
submitted that the original holding was sub-divided in Separation Case No. 81/59-60 by the Circle
Inspector (Revenue) whereby two separate holdings were created--one for jama of Rs. 3/15/-
annas in respect of 2.23 acres of land and another for 1/2/-annas. That after the subdivision the
pre-emptor is no longer a co-sharer relating to the holding in dispute and has no locus standi to
claim pre-emption.

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3. The case had chequered career. The learned Subordinate Judge, 3rd Court allowed the Misc.
Case by his order dated 16.8.61 but the appellate court sent it on remand by its order dated
30.8.62. Then the Subordinate Judge, 3rd Court by his order dated 17.4.63 again allowed the
Misc. Case. Thereafter the appellate court below by its order dated 16.11.64 in Misc. Appeal No.
50/63 dismissed the appeal and affirmed the decision of the trial court. Then the High Court was
moved in Civil Revision No. 749/64 and by its order dated 25.1.65 set aside the order of the
appellate court below and remanded the case to the trial court for coming to a decision in the light
of its observations. The matter went before the Subordinate Judge, 3rd Court and this time by
order dated 31.8.65 the learned Subordinate Judge dismissed the Misc. Case holding that there
had been a valid subdivision of the jama and the pre-emptor was no longer a co-sharer. This was
challenged in Misc. Appeal No. 148/65 and the Addl. District Judge by his order dated 7.3.70
allowed the appeal by holding that the subdivision was not legal and accordingly allowed the pre-
emption case.

4. Being aggrieved by that order the High Court was moved and in Civil Revision No. 505/70 the
High Court discharged the Rule by holding that the Revenue Officer had not acted in accordance
with law and the subdivision of the jama was not made u/s. 88A of the Bengal Tenancy Act and
further the pre-emptor co-sharer was not served with notice.

Leave was granted to consider the interpretation of Section 88A of the Bengal Tenancy Act,
namely :-

Whether an order of sub-division of tenancy under section 88A of the Bengal Tenancy Act without
proper compliance with the proviso (a) to sub-section (1) of the said section is without jurisdiction
and can be treated to be so by a Civil Court in a collateral proceeding.
5. Mr. K.A. Bakr appearing for the appellants submitted that the jama was subdivided into two
holdings-one bearing rental of Rs. 3/15/- annas and the other Rs. 1/2/-annas by this Zaminder's
sheresta and the Revenue Officer noticed this factual position and passed necessary orders on
30.10.59 in Ext. D. The trial court has found that Ext. D had been acted upon. In this view it is
argued that the pre-emptor is no longer a co-sharer within the meaning of Section 26(F) of the
Bengal Tenancy Act and, therefore is not entitled to pre-empt.

6. Ext. D is the order of the Revenue Officer dated 30.10.59. It shows that a petition was filed by
Fariduddin Patwari and Mafizuddin Patwari for separation of jama in respect of Plot No. 227 under
Touzi No. 198/138 under Khatian No. 74 of Mouza Hurmashisha. The previous separation made in
the Sheresta of the Ex-Zaminder was noticed. It was noticed "The R.C.O. ignoring the previous
jama made records in amalgamation. This has created difficulties for realisation of Govt. revenue.
And as such the separation is allowed as suggested and proposed by the T.D.R."

7. The trial court noticed that this Ext. D had been acted upon by the parties. This finding is based
on the evidence of P.W. 8, Tahsildar who deposed that the jama of Rs. 5/1/- annas was divided

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into two jamas-one bearing Rs. 3/15/- annas and the other bearing 1/2/- annas-on the basis of
Separation Case No. 81/59-60. He proved the Ext. 1 series and deposed that the rents were
realised accordingly. This evidence is for oborated by the evidence of O.P.W. 5, Zahirul Qayyum
Chowdhury who stated that the original jama was at Rs. 6/8/- annas. At time of attestation in the
Revisional Survey operation the jama has been recorded at Rs. 5/1/- annas which was again split
up in Separation Case No. 81/59-60 into two jama-one bearing rent of Rs. 1/2/- annas and the
other bearing rent of Rs. 3/15/- annas O.P.W. 1 Paresh Chandra Das Dalai, son of the landlord,
stated that the jote of Khatian No. 74 originally had a rental of Rs. 6/8/- annas and it was split up
into two one in the name of Ramesh & Dinesh at a rental of Rs. 3/14/- annas and the other was
created at Rs. 2/10/- annas in the name of defendants. This division was effected on 28th Poush
1358 B.S. with the consent of all the tenants. He further stated that after division of jama rents
were realised at a divided rate. The evidence thus shows that originally the jama was 6/8/- annas
then it was subdivided by the Zaminder with the consent of the co-sharers into two jamas and then
at the time of the attestation the rent was reduced to Rs. 3/15/-annas for one holding and Rs. 1/2/-
annas for the other. The above analysis of the evidence shows that the finding of the trial court
that "all the co-sharers accepted the khariz and paid rent accordingly on the basis of khariz as
alleged under Ext. D" was correct. Further the admission of P.W. 2; Abdul Hakim Miji that he paid
rent at Re. 1/ and odd and when remaining portion is Rs. 3/15/- annas convincingly proved that
Ext. D was acted upon. Taking advantage of the discrepancy regarding father's name of Abdul
Gafur in petition (Ext. E) and absence of his name in the Khatian (Ext. H), the respondents had
built up a case that all the co-sharers were not notified and, therefore, the pre-emption should be
allowed and the Division of jama was not legally done in accordance with section 88A of the
Bengal Tenancy Act. Section 88A of the Bengal Tenancy Act runs thus:-

88A. (1) Notwithstanding anything contained in section 88, where the Provincial Government is the
sole landlord, the Revenue Officer on application made to him by one or more co-sharer tenants
for the division of a holding and for distribution of the rent payable in respect thereof, may, by
order in writing, direct such division of the holding and distribution of rent thereof including arrears
of rent if any as he considers fair and equitable. Provided that--

(a) no such orders shall be passed unless reasonable notices has been given to the parties
concerned to appear and be heard in the matter, and

(b) no order for the division of a holding and the distribution of the rent thereof shall be made
which would result in bringing the rent of any portion to below rupee one.

8. Abdul Gafur is a heir of Khatija Bibi who had two sons and three daughters. The other son
Abdul Hamid is very much a party to the proceedings in the separation case. His brother Abdul
Gafur's name does not appear in R.S. Khatian (Ext. H) as having possession in the holding. The
contention that Abdul Gafur had left the village after selling his his share appears to be
substantiated and it is to be noticed that Abdul Gafur himself has not come forward to say that no
notice was served on him. If the sub-division of the jama was done in accordance with law, then

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the pre-emptor is not a co-sharer and as has been noticed that in his own deposition he stated that
he paid rent of Re. 1/- and odd which fully substantiates the case of the appellants that the jama
had been split up by Zaminders according to the wishes of all the co-sharers and by wrong
recording it was amalgamated in the Revisional Survey Settlement which was rectified by Ext. D.

9. In case of Kafizan Bibi & ors vs. Haji Farid Kazi and ors., reported in 18 DLR (Dacca) 281 it was
held that after sub-division of the original jama by the Revenue Officer, the original co-sharers of
the original jama are no longers co-sharers and therefore they cannot apply for pre-emption under
section 26(F) after the sub-division under section 88A. The decision was noticed with approval in
26 DLR (SC), 64. In the case of Chandra Kumar Maladas-vs-Abdul Motaleb and ors reported in 19
DLR (SC), 36, it was held that a pre-emptor must not only have a subsisting interest in the holding
when he files an application for preemption under section 26(F) of the Bengal Tenancy Act, but
must continue to hold, the self same interest to the date when the case is finally disposed of. It
was further observed that a co-sharer means a person whose interest subsists through out the
course of the application to pre-empt and not a person who held such an interest in the beginning,
but lost it before its disposal.

10. The contention of Mr. Yasin that all the co-sharer tenants must be made party for a division of
a holding under section88A and "no such order shall be passed unless reasonable notice has
been given to the parties concerned to appear and hear in the matter" is correct in principle but
this is essentially a question of fact whether all the co-sharers tenants were served with
reasonable notice and opportunities were given for the hearing. Ext. D show that notices were
issued and service notices were duly filed. "There is no objection. Both parties present and
produced rent receipt of the ex-zaminders and relevant documents showing previous separation
but amalgamated by the present settlement operation". A presumption is attached and that has
not been rebutted by the respondents. Abdul Gafur might have been a co-sharer as being a son of
Khatija Bibi but whether his interest has subsisted after the split up of the jama in the Zamindari
Sheresta is a question of fact and the onus is upon him who affirms it. That being the position, that
onus has not been discharged by the respondents in this case.

11. As to the question on which leave was granted whether sub-division without proper
compliance with proviso (a) to sub-section (1) is without jurisdiction and can be treated so by a
Civil Court in a collateral proceeding our opinion is that since the Civil Court has found that proper
compliance of the section and the proviso had been proved, further discussions are academic. In
this view of the matter the opinion is that non-compliance with proviso (a) to sub-section (1) of
section 88A will not render the proceeding without jurisdiction inasmuch as a remedy has been
provided by way of appeal and therefore the Civil Court cannot knock it out by holding it as having
been made without jurisdiction in a collateral proceeding. The reason can be stated in the words of
Asquith, L.J.:

It is undoubtedly good law that where a statute creates a right and in plain language gives a
specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce that

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right must resort to this remedy or this tribunal and not to others" (Wilkinson-Vs-Banking
Corporation (1948) 1 K.B. 721 (724).
Be it noted that no appeal was filed as provided by section 88A against the subdivision. On the
contrary, it had been acted upon.

In the result, therefore this appeal is allowed and the petition for pre-emption is dismissed with
costs.

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