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2015 DIGILAW 1233 (GAU)

Nurul Islam Mazarbhuiya v. Sahab Uddin Choudhury

2015-09-22

A.K.GOSWAMI

body2015
ORDER : 1. Heard Mr. K.A. Mazumdar, learned counsel for the appellants. Also heard Mr. T.U. Laskar, learned counsel appearing for the respondent. 2. This appeal is preferred by the defendants against the judgment and decree dated 01.06.2005 passed by the learned Civil Judge (Senior Division), Hailakandi in Title Appeal No. 30/2004, reversing the judgment and decree dated 29.06.2005 passed by the learned Civil Judge (Junior Division) No. II, Hailakandi in Title Suit No. 93/2003. 3. The second appeal was admitted to be heard by an order dated 28.07.2006 on the following substantial question of law: "Whether the finding of the first appellate court is legally sustainable in view of the stringent conditions for pre-emption under Section 236 of the Mulla's Principles of Mahammadan Law?" 4. The plaintiff filed the suit for pre-emption and for declaring the sale deed dated 04.03.2003 as illegal and inoperative and for accepting the due price of the suit land and to register the same in his name by giving him khas possession. Alternatively, the plaintiff also prayed for getting the sale deed registered through court. Prayer was also made to set aside any ekramama, if made, after sale by defendant No. 4 to defendant Nos. 1 to 3. The case set out in the plaint is that plaintiff is a shafi-e-sharik (a co-sharer in the property) with defendant No. 4 and the property was enjoyed in ejmali after the death of their father. He being informed of the sale of the suit land, attended the Office of the Sub-Registrar at Hailakandi on the very day of registration, i.e. 04.03.2003 and pronounced the word "shafi" 3 times in presence of 3 witnesses and the buyer and the seller. The defendants gave a deaf ear to the intent of the plaintiff arid defendants are also in collaboration to make an ekramama. The plaintiff arranged a "Village Bichar" in which the defendant Nos. 1 to 3 were directed to return the land to the plaintiff at the same price in which the transaction had taken place. However, the defendants did not pay any heed to it. It is averred that the plaintiff had been put to great inconvenience and he would not be able to do safe cultivation in his adjoining land. 5. Defendant Nos. 1 to 3, who are the purchasers, though appeared in the suit, did not file written statement. However, the defendants did not pay any heed to it. It is averred that the plaintiff had been put to great inconvenience and he would not be able to do safe cultivation in his adjoining land. 5. Defendant Nos. 1 to 3, who are the purchasers, though appeared in the suit, did not file written statement. The defendant No. 4 did not enter appearance despite service of summons. 6. No issues were framed by the learned Trial Court. During trial, plaintiff examined 5 witnesses and the defendant Nos. 1 to 3 also examined 1 witness, besides cross-examining PWs- 1, 2 and 4. 7. The learned Trial Court held that the defendant Nos. 1 to 3 are not strangers but co-sharers of the suit patta along with the plaintiff and the defendant No. 4 and the plaintiff had failed to show the kind of inconvenience he would be put to if the defendant Nos. 1 to 3 were allowed to purchase the suit land. It was noted that the plaintiff had not raised the right of pre-emption while his brother had sold 26 jasti land to Nooruddin and Jabed from the suit patta. On the basis thereof, the learned Trial Court held that plaintiff did not succeed to establish his case and resultantly, the suit was dismissed. 8. The learned lower Appellate Court formulated 2(two) points for determination: "(1) Whether the plaintiff has preferential right of purchase of the suit land there and (2) Whether the plaintiff satisfied the procedure for entitlement of the right of pre-emption as required under the law?" 9. While deciding point No. 1, the learned lower Appellate Court observed that there is no material on record to hold that the landed property left behind by the father of the plaintiff and defendant No. 4 was partitioned between co-heirs and therefore, the plaintiff has preferential right of pre-emption. Relying on the evidence of the witnesses of the plaintiff, the learned lower Appellate Court held that the plaintiff fulfilled the conditions and procedures to entitle him the right of pre-emption under Section 236 of the Principles of Mahomedan Law. It was also recorded by the learned lower Appellate Court that the finding of the learned Trial Court that PWs-2 and 4 were silent regarding they being witnesses of the demand of the plaintiff in the Sub-Registrar's Office is not correct. It was also recorded by the learned lower Appellate Court that the finding of the learned Trial Court that PWs-2 and 4 were silent regarding they being witnesses of the demand of the plaintiff in the Sub-Registrar's Office is not correct. Accordingly, by allowing the appeal, the impugned judgment of the learned Trial Court was set aside. 10. Mr. K.A. Mazumdar, learned counsel for the appellants has submitted that no suit land was referred to in the plaint and therefore, pleading is absolutely vague. It is submitted by him that finding of the learned lower Appellate Court that there was no partition of the property left behind by the father of the plaintiff and the defendant No. 4 is perverse and the same is belied by the evidence of PW-1, plaintiff himself, as he had himself deposed that 26 jasti of land was sold. There is no material on record to suggest that there was any formal demand made by the plaintiff as required under Section 236(2) of the Principles of Mahomedan's Law (19th Edition) by Mulla. In support of his contention, learned counsel places reliance in Radhakisan Laxminarayan Toshniwal vs. Shridhar Ramchandra Alshi & Others, AIR 1960 SC 1368 ; Kumar Gonsusab & Others vs. Mohammed Miyan Urf Baban & Others, (2008) 10 SCC 153 and Ramesh Chand Ardawatiya vs. Anil Panjwani, (2003) 7 SCC 350 . 11. Mr. T.U. Laskar, learned counsel appearing for the respondent has supported the impugned judgment of the learned lower Appellate Court. It is contended by him that demand for pre-emption was scrupulously made by the plaintiff and therefore, no interference is called for in this second appeal. He has also relied on the judgment in Mattoo Devi vs. Damodar Lai (Deceased) by LRs. & Others, (2001) 6 SCC 330 , to explain the concept of pre-emption. 12. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 13. Before attempting to give answer to the substantial question of law formulated, it will be appropriate at the outset to notice, in brief, the various aspects of the right of preemption, relevant for the purpose of this case. 14. The right of shufa or pre-emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which had been sold to another person. 14. The right of shufa or pre-emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which had been sold to another person. There was divergence of opinion as to the nature of right of pre-emption as while the High Courts of Bombay and Calcutta had held that the right of pre-emption is right of re-purchase from the buyer and a mere personal right, the Allahabad High Court had held that it was an incidence of property. The Apex Court in Audh Behari Singh vs. Gojadhar Jaipuria, AIR 1954 SC 417 , held that the right of preemption is an incidence of property and attaches to the land itself. 15. Law of pre-emption imposes a limitation or disability upon the ownership of the 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 benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of pre-emptor does not amount to an interest in the land itself. If the right of pre-emption is considered to be only a personal right enforceable against the vendee and there was no infirmity in the title of the owner restricting his right of sale in a certain manner, a bona fide purchaser, without notice, would certainly obtain an absolute title to the property unhampered by any right of the pre-emptor and, in such circumstances, there could be no justification for enforcing the right of pre-emption against the purchaser on ground of justice, equity and good conscience. The right of pre-emption can be enforced against the purchaser only because law of pre-emption creates a right, which is attached to the property, Audh Behari (supra). 16. In terms of Section 231 of Mulla's Principles of Mahomedan Law, three classes of persons, namely, (i) a co-sharer in the property (shafi-i-sharik), (ii) a participator in immunities and appendages, such as a right of way or a right to discharge water (shafi-i-khalit) and (iii) owner of adjoining immovable property (shafi-i-jar) are entitled to claim preemption. 16. In terms of Section 231 of Mulla's Principles of Mahomedan Law, three classes of persons, namely, (i) a co-sharer in the property (shafi-i-sharik), (ii) a participator in immunities and appendages, such as a right of way or a right to discharge water (shafi-i-khalit) and (iii) owner of adjoining immovable property (shafi-i-jar) are entitled to claim preemption. In Krishna vs. State of Haryana, (1994) 4 SCC 703 , the Apex Court had laid down that the word "co-share" has to be taken as interchangeable with "co-owner". Section 232 provides that the right of pre-emption arises only out of a valid, complete and bona-fide sale. 17. Section 236 of Mulla's Mahomedan Law provides for demands to be made for pre-emption. Section 236 reads thus: "236. Demands for pre-emption - No person is entitled to the right of pre-emption unless:- (1) He has declared his intention to assert the right immediately on receiving information of the sale. This formality is called talab-i-mowasibat (literally, demand of jumping, that is, immediate demand). (2) He has with the least practicable delay affirmed the intention, referring expressly to the fact that the talab-i-mowasibat had already been made, and has made a formal demand:- (a) Either in the presence of the buyer, or the seller, or on the premises which are the subject of sale. (b) In the presence at least of two witnesses. This formality is called talab-i-ishhad (demand with invocation of witnesses)." 18. The term talab, which, in common parlance manifests a demand, according to Mulla's Principles of Mahomedan Law, has two distinct facets: (a) talab-i-mowasibat, which conveys the idea of a person jumping from his seat, as though startled by the news of the sale, and this formality is called immediate demand. Talab-i-mowasibat requires that the pre-emptor must assert his intention immediately on hearing of the sale, though not before and unreasonable delay will be construed as an election not to pre-empt. The second, being popularly known as the second demand, is talab-i-ishhad, which literally speaking, means and implies the demand, which stands witnessed. Tire second demand, which is a formal demand, must be in reference to the first demand to be made with least practicable delay and it is to be done in the presence of either the buyer or the seller or on the premises which is the subject of sale, in presence of at least two witnesses. 19. Tire second demand, which is a formal demand, must be in reference to the first demand to be made with least practicable delay and it is to be done in the presence of either the buyer or the seller or on the premises which is the subject of sale, in presence of at least two witnesses. 19. In Mattoo Devi (supra), relying on Wilson on Mohammadan Law, the Apex Court also held that there is a third demand, though not strictly a demand but which comes within the principles of pre-emption and such a demand arises only when one enforces the right of pre-emption by initiation of a civil suit within one year of the purchaser taking possession of the property claiming pre-emption relating to the whole of the interest and not a part of the estate. This third demand is called talab-i-tamlik or talab-i-kusumat. The first demand is referred to therein as talab-i-muwathaba. 20. Talab-i-mowasibat and talab-i-ishhad are conditions precedent for exercise of the right of pre-emption. Talab-i-mowasibat may not be performed in the presence of witnesses and it is enough if the pre-emptor makes known his intention in some way. However, the essence of talab-i-ishhad is that it should be performed before at least two witnesses. On certain occasions, talab-i-ishhad may combine with talab-i-mowasibat as in the case where at the time of talab-i-mowasibat, the pre-emptor had an opportunity of invoking the witnesses in the presence of the seller or the buyer or on the premises to attest the talab-i-mowasibat and the witnesses are, in fact, invoked to attest it. 21. It was held in Krishna (supra), that there are no equities in favour of the pre-emptor. In Kumar Gonsusab (supra), the Apex Court reiterated that the right of pre-emptor is a weak right and is not looked upon with favour by courts and, therefore, a court cannot go out of their way to help the pre-emptor. 22. In Radhakisan Laxminarayan (supra), the Apex Court had held that whenever the Transfer of Property Act, 1982 (for short, T.P. Act) applies, Mahomedan Law or any other personal law is inapplicable to transfers and no title passes except in accordance with T.P. Act. It is to be noted that under the Mahomedan Law, a sale is completed by payment of price by the purchaser to the vendor and by delivery of possession by the vendor to the purchaser. 23. It is to be noted that under the Mahomedan Law, a sale is completed by payment of price by the purchaser to the vendor and by delivery of possession by the vendor to the purchaser. 23. Section 59 of the Registration Act, 1908 provides that the registering officer shall affix the date and his signature to all endorsements made under Sections 52 and 58, relating to the same document and made in his presence on the same day. Section 60(1) of the Registration Act lays down that 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. Section 60(2) lays down that such certificate shall be signed, sealed and dated by the registering officer, and shall then 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 endorsement, referred to in Section 59 have occurred as therein mentioned. Section 61(1) provides that the endorsements and certificate referred to and mentioned in Section 59 and 60 shall thereupon be copied into the margin of the Register-book, and the copy of the map or plan (if any) mentioned in Section 21 shall be filed in Book No. 1. Section 61(2) provides that the registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in Section 52. 24. Section 61(2) of the Registration Act makes it abundantly clear that only after completion of copying of the endorsement and the certificates referred to and mentioned in Section 59 and 60 into the margin of the Register-book, the registration of the document shall be deemed complete. 25. Section 47 of the Registration Act has nothing to do with the completion of the registration and, therefore, nothing to do with the completion of a sale when the instrument is one of sale. 25. Section 47 of the Registration Act has nothing to do with the completion of the registration and, therefore, nothing to do with the completion of a sale when the instrument is one of sale. A sale which is admittedly not completed until the registration of the instrument of sale is completed cannot be said to have been completed earlier because by virtue of Section 47 of Registration Act the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. 26. In Ram Saran Lall & Others vs. Mst. Domini Kuer & Others, AIR 1961 SC 1747 , the Apex Court held that registration, as required under Section 54 of the T.P. Act, in case of sale of a tangible immovable property of the value of Rs. 100/- and upwards, under the Registration Act, 1908, is not complete till the document to be registered has been copied out in the records of the Registration Office as provided in Section 61 of the Registration Act. 27. In S.K. Mohammad Rafiq (dead) by his legal Rep. vs. Khalilul Rehman & Another, AIR 1972 SC 2162 , the Apex Court reiterated that sale shall be deemed to be completed only after the sale deed has been copied in the books of Sub-Registrar. The Apex Court had opined that it will be virtually impossible or, at any rate, extreme difficult for any pre-emptor to make the first demand as promptly as required under the Principles of Mahomedan Law as it cannot be expected that a pre-emptor should keep a perpetual watch and go on making constant inquiries with regard to the point of time when the office of the Sub-Registrar would copy out the sale deed in the prescribed book. The Apex Court further observed that it is the law of the land and it is for the Parliament to consider that aspect of the matter. 28. In order to claim a right of pre-emption, it is necessary in the first instance, for the plaintiff to prove that he is a co-sharer of the property. Co-sharer is a term which is interchangeable with the term co-owner and both mean one and the same thing. In the plaint, the plaintiff claims to be a shafi-i-sharik. However, his evidence belies that he is not a co-sharer. Co-sharer is a term which is interchangeable with the term co-owner and both mean one and the same thing. In the plaint, the plaintiff claims to be a shafi-i-sharik. However, his evidence belies that he is not a co-sharer. In his cross-examination, he had deposed that defendant No. 4 had agreed to sell to him 8½ Jasti of land, which was subsequently sold to the defendant Nos. 1, 2, and 3. It has also come out in his cross-examination that he has two brothers and five sisters who had inherited the ancestral property according to the Shariat Law and his brothers and sisters had already sold 26 Jasti of land. In respect of such sale, he had not made any demand for pre-emption and it is stated by him in his cross-examination that on the basis of an amicable settlement, the share of the property of his brothers and sisters had been sold out. If the property had been partitioned on the basis of mutual understanding and the brothers and sisters had got demarcated shares, capable of being sold and which, in fact, was sold, it cannot be said that the plaintiff is a co-sharer with the defendant No. 4. 29. The evidence of the plaintiff is that he had uttered the word "shafi" three times, signifying his intention, at the time of registration and in presence of the witnesses. It is not in his evidence that he had taken the witnesses along with him. That apart, demand made at the time of registration is not a demand in accordance with talab-i-mowasibat inasmuch as at the time of registration, sale is not complete. Sale is complete only when the sale deed is copied in the books of the Sub-Registrar concerned. Therefore, there was no valid talab-i-mowasibat. The sale being not complete, the utterance of the word, "shafi" three times on 04.03.2003, at the time of registration, does not fulfil the requirement of talab-i-mowasibat. In the plaint as well as in his deposition, the plaintiff does not say as to who were the witnesses and the witnesses examined by the plaintiff as witnessing the demand made by the plaintiff do not say that they had been called to witness the demand. In the plaint as well as in his deposition, the plaintiff does not say as to who were the witnesses and the witnesses examined by the plaintiff as witnessing the demand made by the plaintiff do not say that they had been called to witness the demand. Talab-i-ishhad being a formal demand, persons who happened to be present near about in a fortuitous circumstance at the time of making the talab-i-ishhad, cannot be called witnesses to the formal demand made at the time of talab-i-ishhad. Presence of at least two witnesses is a requirement under Section 236 and sanctity is attached to the witnessing of the talab and, therefore, it is necessary that witnesses should have been specifically called upon to bear witness to the demand being made. It appears that plaintiff sought to combine talab-i-mowasibat and talab-i-ishhad at a time. Apart from the so-called demand made on 04.03.2003, the plaintiff had deposed that the plaintiff had organised a village Bichar wherein the adjudicators had asked the defendant Nos. 1, 2 and 3 to return the land to the plaintiff. It is not indicated on what date such village Bichar had been called. Such Bichar, even if it is taken to have been held, does not fulfil the requirements of Section 236 as the same cannot be construed to replace the requirement of talab-i-mowasibat or talab-i-ishhad. Leaving aside everything else, on the basis of the evidence adduced by the plaintiff, it is clear that there was no talab-i-mowasibat or talab-i-ishhad by the plaintiff after the sale was completed. 30. In the instant case, defendants had examined one witness DW1 although no written statement was filed by the defendants. Whether in absence of a written statement filed, it is permissible for the defendants to adduce evidence is a question which has arisen in the instant case. However, no substantial question of law was framed on this score and arguments were also not advanced touching upon this aspect of the matter. Even if the evidence of DW1 is totally ignored from the purview of consideration, no benefit will accrue to the plaintiff inasmuch as the plaintiff has miserably failed to prove by adducing cogent and reliable evidence that he fulfilled conditions to enable him to get a decree of pre-emption. 31. In view of the above, the judgment of the learned lower Appellate Court is set aside. The appeal is allowed. 31. In view of the above, the judgment of the learned lower Appellate Court is set aside. The appeal is allowed. The suit of the plaintiff is dismissed and the decree of the learned trial Court is restored. No cost. 32. Substantial question of law is answered in terms of the above. 33. Registry will send back the records.