LEX/BDAD/0073/1990

Equivalent Citation: 1994 BLD (AD) 20

BLD
IN THE SUPREME COURT OF BANGLADESH
(APPELLATE DIVISION)

Civil Appeal No. 33 of 1985

Decided On: 11.01.1990

Akhlasur Rahman & ors

Vs.
Safurullah and others

Hon'ble Judges:
Shahabuddin Ahmed, M.H. Rahman, A.T.M. Afzal and Mustafa Kamal, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: S.R. Pal, Senior Advocate, S.C. Das, Advocate with him,
instructed by Md. Aftab Hossain, Advocate-On-Record

For Respondents/Defendant: Ranadhir Sen, Advocate B.K. Das, Advocate with him instructed by
Sharifuddin Chaklader, Advocate-On-Record for the Respondent No. 1

Subject: Land Laws

Catch Words

Mentioned IN

Acts/Rules/Orders:
State Acquisition And Tenancy Act, 1950 - Section 96

Cases Referred:
Digambar Singh v. Ahmad Said Khan, 42 IA 10(18); Shi Audh Behari Singh v. Gajadhar Jaipura &
others, (1955) I.S.C.R 70; Maulana Abdul Karim v. Nurjahan Begum, 38 D.L.R. (1986) page 361;
Ocean Industries Ltd. v. Industrial Development Bank, 18 DLR(S.C) (1966) page 364; Tool Metal
Co. v. Tungsten Electric Co.

Disposition:

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Appeal Allowed

Case Note:
The State acquisition and Tanancy Act, 1950

Section 96

Waiver and acquiescence defeat the right of pre-emption.

Held:- When the pre-emptor took a leading part in bringing about the transaction by
assisting the sellers in selling the land and encouraged the buyers in purchasing it and him
self negotiated the price, the conduct of the pre-emptor is sufficient to give rise to waiver
and acquiescence and as such estoppel operates against him.

Digambar Singh Vs. Ahmed Said Khan; 42 IA 10(18), Shri Andh Behari Singh Vs. Gajadhar
Jaipura Dar (1955) ISCR 70; Maulana Abdul Karim Vs. Nurjahan Begum 38 DLR (1986) 361;
22 DLR(1970) 449; Occan Industries Ltd. Vs. Industrial Development Bank 18
DLR(SC)(1966)364;--Cited

JUDGMENT

A.T.M. Afzal, J.

1. This appeal by leave at the instance of the Pre-emptee-Appellants arises out of a proceeding
under Section 96 of the State Acquisition and Tenancy Act, 1950 and is directed against the
judgment and Order dated 8 April, 1984, passed by a Single Judge of the High Court Division,
Sylhet Bench, in Civil Revision No. 55 of 1983, allowing pre-emption upon setting aside the
concurrent decision of the Courts below to the contrary. Pre-emptor-Respondent No. 1 filed Misc.
Case No. 37/80 in the 2nd Court of Munsif, Sadar, Sylhet, for pre-emption of the case land
transferred by Respondents 2-4 to the Appellants and another by a registered Kabala dated 10th
Kartick 1383 B.S. corresponding to 27.10.76 for Tk. 6000/-, both as a co-sharer in the case
holding and a contiguous owner to the case land. The Appellants contested the Misc case, inter
alia, on the ground that it was barred by estoppels, waiver and acquiescence as the Pre-emptor
himself assisted the vendors in selling the disputed land and encouraged the Appellants to
purchase the same.

2. The learned Munsif, by Judgment and Order dated 16.5.81, held that the pre-emptor was co-
sharer in the case holding, that the Misc. case was not bad for defect of parties, that it was not
barred by limitation but it was barred by estoppels, waiver and acquiescence. Accordingly, the
Misc. Case was dismissed. On appeal, the learned Additional Subordinate Judge, 1st Court,
Sylhet, by judgment and Order dated 1.9.82, affirmed the decision of the trial Court and dismissed
the appeal.

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3. The Pre-emptor then went in revision before the High Court Division. The learned Single Judge
observed in the impugned judgment thus:

The Courts below came to the finding that the Pre-emptor Petitioner waived his right on the
evidence adduced by the opposite parties as to the conduct of the Pre-emptor Petitioner at the
time of negotiating the sale and execution of the Kabala in question. It is now well settled that the
right of Pre-emptor accrues only on the registration of the deed of transfer (Kabala). The mere
refusal to purchase or negotiating the contract of sale can not debar a Pre-emptor from
preempting after the transfer had become effective under Law. The question of waiver of the right
would arise only after the registration of the Kabala. The right of Pre-emption could be waived or
relinquished by a specific agreement. In the instant case, it is not alleged by the Pre-emptee
Opposite Parties that the Pre-emptor Petitioner had relinquished or waived his right of Pre-emption
by a special agreement.
4. Having taken such view of the matter, the Rule was made absolute and the Pre-emption
allowed by the impugned judgment and Order.

5. Leave was granted to consider whether the view taken by the learned judge of the High Court
Division was correct in Law and on facts found concurrently by the Courts below.

6. Mr. S.R. Pal, learned Advocate for the Appellants, submitted that the view taken by the learned
judge that the question of waiver of the right of pre-emption would arise only alter the registration
of the Kabala and further that the right could be waived or relinquished by a specific agreement
was wrong on principle and authority. Mr. Pal argued that the right of Pre-emption inheres in a Co-
sharer because of co-sharership in the land or holding and, as such, is amenable to be waived or
relinquished by consent, conduct or acquiescence, even before the sale actually takes effect
legally. Secondly, he submitted that the learned Judge having himself noticed that the Courts
below concurrently came to the finding that the Pre-emptor had waived his right by conduct at the
time of negotiation for the sale, if ought to have been held that he was stopped from claiming Pre-
emption in any case either by waiver or acquiescence or by both.

7. Mr. Ranadhir Sen, learned advocate for the Pre-emptor-Respondent, cautiously supported the
view taken by the learned Judge of the High Court Division contending that since it is settled Law
that the cause of action for Pre-emption accrues only after the registration of the Kabala, there
could not be any waiver of an imaginary right before the registration of the Kabala as claimed in
the present case. Mr. Sen, however, concedes that the principle of estoppels may operate in a
particular case by reason of Pre-emptor's consent or acquiescence to the transaction even before
the sale takes effect, but the facts of the present case are not sufficient to attract the said principle.

8. Mr. Pal submits that Section 96 of the State Acquisition and Tenancy Act is a statutory
recognition of the right of Pre-emption and provides for when and how the said right becomes
enforceable, but the right arises out of a relationship that exists between co-sharer tenants of a

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holding or land which confers a benefit on the one and obligation on the other. Tracing the
background of the Law of Pre-emption, the Privy Council has said in more cases than one that the
Law of Pre-emption was introduced in undivided India by the Muhammadans, vide Digambar
Singh Vs. Ahmad Said Khan, 42 IA 10(18). As to the question whether the burden and benefit of a
right of pre-emption are incidents annexed to the lands belonging respectively to the Vendor and
the Pre-emptor or is the right merely one of re-purchase, which a neighbour or co-sharer enjoys
under Mahomedan Law and which he can enforce personally against the Vendee in whom the title
to the property has already vested by sale, opinions varied in different High Courts of the then
India. The Indian Supreme Court, in the case of Shi Audh Behari Singh Vs. Gajadhar Jaipura &
others, (1955) I.S.C.R 70, endorsed the view of Mahmood J. of Allahabad High Court (7 All. 775
Full Bench) saying that it is true that the right becomes enforceable only when there is a sale, but
the right exists antecedently to the sale, the foundation of the right being the avoidance of the
inconveniences and disturbances which would arise from the introduction of a stranger into the
land and that "we agree with Mr. Justice Mahmood that the sale is a condition precedent not to the
existence of the right but to its enforceability." The Supreme Court further said that "the correct
legal position seems to be that the Law of Pre-emption imposes a limitation or disability upon the
ownership of a property to the extent that it restricts the owner's unfettered right of sale and
compels him to sell the property to his co-sharer or neighbour, as the case may be. The person
who is a co-sharer in the land or owns lands in the vicinity consequently gets an advantage or
benefit corresponding to the burden with which the owner of the property is saddled, even though
it does not amount to an actual interest in the property sold. The crux of the whole thing is that the
benefit as well as the burden of the right of Pre-exemption run with the land and can be enforced
by or against the owner of the land for the time being although the right of the Pre-emptor does not
amount to an interest in the land itself".

9. We are in respectful agreement with the principle enunciated above and hold further that the
right can be waived or relinquished at an earlier date than on date of actual completion of the sale
under the Law or thereafter.

10. In Halsbury's Laws of England, Third Edition, Volume 14, Page 637, it is stated that "Waiver is
the abandonment of a right and is either express or implied from conduct. A person who is entitled
to the benefit of a stipulation in a contract, or of a statutory provision, may waive it and allow the
contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of
this kind depends upon consent and the fact that the other party has acted upon it is sufficient
consideration. Where the waiver is not express, it may be implied from conduct which is
inconsistent with the continuance of the right. It seems that, in general, where one party has by his
words or conduct, made to the other a promise or assurance which was intended to affect the
legal relations between them and to be acted on accordingly, then, once the other party has taken
him at his word and acted on it, the party who gave the promise or assurance cannot, afterwards,
be allowed to revert to the previsions legal relationship as if no such promise or assurance had
been made by him, but he must accept their legal relations subject to the qualification which he
himself has so introduced, even though it is not supported in point of Law by any consideration".

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11. In the same volume, at Page 638, it has been staled that "acquiescence" in its proper legal
sense implies that a person abstains from interfering while a violation of his legal rights is in
progress and further that "Acquiescence operates by way of estoppels. It is acquiescence in such
circumstances that absent may reasonably be inferred and is an instance of estoppels by words or
conduct. Consequently, if the whole circumstances are proper for raising this estoppels, the party
acquiescing cannot, afterwards, complain of the violation of his right".

12. It is clear, therefore, that the facts proved in a particular case may give rise to waiver and
acquiescence and a Pre-emptor may be held to be stopped from enforcing his right of pre-
emption. It is to be observed, however, that the statutory right will be denied to the Pre-emptor
only on proof of such combination of facts upon which a Court of Law can reasonably and validly
made an inference of waiver and /or acquiescence. As no specific agreement is necessary for
raising such plea, it is equally important to remember that any and every Act touching the
transaction in which the Pre-emptor may have taken part or the mere fact of knowledge about the
transfer or temporary unwillingness on his part to buy cannot debar him from claiming his right at
the proper time. Essentially, therefore, it will be a question of proper inference from the facts
proved in each particular case as to whether the plea of waiver and acquiescence exists validly or
not.

13. Mr. Pal has drawn our attention to a Single Bench decision of the High Court Division in the
case of Maulana Abdul Karim Vs. Nurjahan Begum, 38 D.L.R. (1986) page 361, where the Courts
below refused Pre-emption, inter-alia, on the ground of waiver because the Pre-emptor was the
guardian of the Pre-emptee O.P. Nos. 2-5 and he himself negotiated the sale under Pre-emption.
The learned Judge of the High Court Division (Mustafa Kamal J.), now a party to the present
decision, upon making reference to several cases including one reported in LEX/HEPK/0064/1969
: (1970) 22 DLR 449, upheld the impugned decision observing that:

when the Pre-emptor is in loco parentis with the Pre-emptees and negotiates the sale under Pre-
emption himself or the facts are such that his acquiescence in the sale can be safely concluded
there from, the doctrine of Estoppels comes into full play. The Pre-emptor will be stopped from
asserting his claim of Pre-emption.
14. The facts of the said case provide a good example for invoking the principle of Estoppels even
though a view was expressed, which, however, has not much material bearing on the result, that
the case was not so much a case of waiver, but a case of acquiescence. Mr. Pal felt that it will be
a pointless debate now to describe the emerging inference-a case of waiver or acquiescence-
which is not free from difficulty, but the result, never the less, remains the same, that is, the
principle of Stopped comes into play in both cases.

15. Mr. Sen cautioned that for certain gratuitous acts on the part of the Pre-emptor, an inference of
Waiver or Estoppels should not be readily drawn. He referred to a passage from the Judgment of
Hamoodur Rahman J. in the case of Ocean Industries Ltd. Vs. Industrial Development Bank, 18

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DLR(S.C) (1966) page 364 which reads thus:

To establish the case of waiver or estoppels it was necessary to clearly show that the party
alleged to have waived its right had acted in such a manner as to lead the other side to believe
that such rights will not be enforced or will be kept in suspense or abeyance for some particular
time. The "gist of the enquiry", as observed by Viscount Simonds in the case of Tool Metal Co. Vs.
Tungsten Electric Co., "lies in the fact that one party has, by his conduct, led the other to alter his
position," yet he cautioned that he would not have it supposed that in commercial transactions
"mere acts of indulgence are apt to create rights". A mere gratuitous indulgence shown by not
enforcing strictly one's legal rights for a brief period cannot in our view, give rise to the inference
that the rights have been abandonment of all times.
16. The observations made in respect of a commercial transaction may not be wholly apt in the
facts of a Pre-emption case, but the general principle which attracts equity, it is not disputed, must
be present in all cases, that is, the facts must show that one party has, by his conduct, led the
other to alter his position.

17. Let us then see the facts proved and found concurrently in the present case in the light of the
principles discussed above.

18. The trial Court, in its Judgment, found as to issue No. 4 thus:

It is the specific case of the objecting O.Ps. in para 10(ga) of the Written Objection that the earlier
O.P. No. 5-7(sellers), out of necessity of fund, made frantic attempt to sell the case land at
maximum price within the knowledge of all and the Ptr. being a neighbour of the seller of O.Ps. 5-7
assisted them in selling the same and also encouraged the O.P. No. 1-4 to purchase the case
land. It is also definite case of the objecting O.Ps. that the Ptr. played active part in negotiating the
transaction having participated in the talk of sale. The objecting O.Ps. led evidence at the time of
trial to the effect that the Ptr. knew about the sale of the case land and he actively took part in
settling the transaction... on scrutiny, it appears that the O.P.W. 1 fully supported the Written
Objection case while the O.P.W. 3 corroborated the O.P.W. 1 in the above observation. It appears
that the Misc. case is barred by stopped, waiver and acquiescence.
19. It is clear that the Pre-emptor took a leading part in bringing about the transaction; he assisted
the sellers in selling the land, encouraged the buyers to purchase it and himself negotiated the
price. In our opinion, this conduct of the Pre-emptor was reasonably sufficient to give rise to waiver
and acquiescence and thus. Estoppels will operate in any case, because, the conduct of the Pre-
emptor has induced the purchasers (Appellants) to alter their position and the Pre-emptor cannot
now turn round and assert his right to undo a transaction which is very largely the result of his own
creation. We, therefore, find that there is good deal of substance in the contentions raised by Mr.
Pal and the view taken by the learned Judge of the High Court Division cannot be legally
sustained. In the result, therefore, the appeal is allowed and the impugned judgment set aside. No
Cost.

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