RSA/55/2013 of REJIA SULTANA Vs MD. NASIF KHAN and 8 ORS. on 21 December 2018

1. Title Suit No. 41/05 was initially filed by Md. Azad Ahmed as the plaintiff No. 1 and Md.Nasif Khan against his brothers and sisters, the defendant Nos. 1 to 8 and the defendant No.9, Mustt. Rejia Sultana for enforcing the right of pre-emption with respect to a plot of landpurchased by the said defendant No. 9 who is the present appellant in this second appeal.The respondents herein this appeal are one Nasif Khan, the plaintiff-respondent No. 1 andone Mustt. Runuma Begum the proforma-defendant No. 10 in the suit. The plaintiff-respondent No. 1 Md. Azad Ahmed withdrew vide order dated 07.10.2005 from the suit asplaintiff thereby leaving the present plaintiff-respondent No. 1 as the sole plaintiff.

2. The facts pleaded by the plaintiff-respondent No. 1 that land measuring 8.9 lechascovered by Dag No. 1117 Periodic Patta No. 946 of town Nagaon Kissam forms the subjectmatter of the suit. One Malekan Nessa, mother of the plaintiff-respondent No.1 and thedefendant Nos. 1 to 7 along with proforma defendant No. 10 was the original owner of theland who were possessing and residing in the same house. On her death the said landdevolved upon the legal heirs and regarding share of the legal heirs thereon, a dispute aroseand Title Suit No. 118/96 was filed by the defendant Nos. 1,2, 3, 4, 5, 6 and 7 and proformadefendant No. 10. Therein it was decided that no partition took place amongst the legal heirs

of Malekan Nessa and all the legal heirs are entitled as shareholders of the said land. Theplaintiff-respondent No.1 along with the other plaintiff expressed their willingness to purchasethe share of other co-sharers at the market price. On 22.03.2005 the defendant No. 9 i.e. thepresent appellant along with others came to the land and tried to enter into the house as thesaid defendant-appellant purchased the land. On enquiry the plaintiff-respondent No.1 cameto know that defendants No. 1, 2, 3 sold their shares by Registered Sale Deed No. 3261/04.The plaintiff-respondent No. 1 expressed his willingness to purchase the share of thedefendants sold by them to the defendant appellant. The plaintiff-respondent No. 1 also cameto know that vide Sale Deed No. 3260/04 the defendant Nos. 4, 5, 6 and 7 sold their sharesof land measuring 5.2 lechas to the defendant appellant. The plaintiff-respondent No. 1claimed his right of pre-emption to be enforced over the said land. The said defendants sold apart of undivided property left by Malekan Nessa and the plaintiffs respondents are co-sharersof the land and the plaintiff-respondent No.1 resides on the back portion of the land. Theplaintiffs respondents have pre-emptory right over the undivided shares of the defendant No.1 to 7 and accordingly the plaintiff-respondent No. 1 sought for declaration and enforcementof his pre-emptory right over the suit land.

3. The defendant No. 9-appellant jointly filed her written statement along with defendantNos. 5, 7 and 8 contesting the suit stating inter alia, that there is no cause of action for thesuit and the same is also not maintainable. The case of the defendants is that the entire landin the suit originally belonged to Malekan Nessa. Referring to the declaration made in thedecree of the Title Suit No. 118/96, the defendants claimed that they have equal right andinterest over the land left by Malekan Nessa. The plaintiff-respondent sold 19 [1]/3 lechas ofland to one Mamoni Hazarika vide Sale Deed dated 20.07.1994 and delivered possession ofthe land. After selling of the land by the plaintiff-respondent No. 1 along with the otherbrother to a stranger they cannot ask for pre-emptory right over the land sold to thedefendant /appellant by defendant Nos. 1 to 7. Accordingly, they sought for dismissal of thesuit.

4. Based on the pleadings following issues were framed:-

1. Whether there is any cause of action for the suit?

2. Whether the suit is maintainable in its present form?

3. Whether the plaintiffs have got right of preemption over the suit land against thedefendants?defendants?

4. Whether the plaintiffs have exercised their right of preemption over the suit landbefore the sale of the land by the defendants?before the sale of the land by the defendants?

5. Whether the plaintiffs have waved their right of preemption over the suit land bytransferring their share in the suit Patta vide Sale Deed No.-3297/94 to a stranger?transferring their share in the suit Patta vide Sale Deed No.-3297/94 to a stranger?

6. Whether the plaintiffs are entitled to the relief as prayed for in the suit?

5. The plaintiff-respondent side examined three witnesses and the defendant –appellantside examined only one witness. The learned trial court after hearing the parties dismissedthe suit vide judgment and decree dated 29.11.2012. The learned trial court decided issueNo. 3 in favour of the plaintiff-respondent thereby holding that he has the right of pre-emption over the suit land against the defendants. However, the issue No. 4 was decidedagainst the plaintiff-respondent No.1. The learned trial court while deciding issue Nos. 3 and4 jointly though held the issue No. 3 in favour of the plaintiff-respondent, but while decidingthe issue No. 4 held as follows:- “Considering the above principles of law, it is apparent that the talab-i-moswaibat andtalab i. ishhad are condition precedent to the exercise of the right of pre-emption i.e.the person who claims the right of pre-emption in respect of any property, he musthave fulfil these two conditions otherwise he is not entitled to make any such demandof pre-emption.

In this case, although the plaintiff has claimed his right of pre-emption over the suitland but he failed to comply with the rules of Mohammedan law aforementioned. Thatapart the plaintiff has failed to examine the witnesses before whom he expressed hisintention of purchasing the suit land in order to prevent inconvenience. Thepreponderance of probabilities is not in favour of the plaintiff. That apart the evidenceof PW3 Nanda Gupta is also not sufficient to form an opinion that the plaintiff able toprove the right of pre-emption. This being so it can not be said that the plaintiff hasasserted his right of pre-emption over the suit land before the sale made out by thedefendant.

Considering the facts and circumstances of the case and materials available in therecord, the issue No. 3 is answered in favour of the plaintiff but the issue No:4 isanswered against the plaintiff.”

6. The plaintiff-respondent No. 1 filed Title Appeal No. 2/09 challenging the judgmentand decree dated 20.02.2009 of the learned trial court and vide judgment and decree dated29.11.2012 the said appeal was decided in favour of the plaintiff-respondent therebyreversing the findings of the trial court in issue No. 4. The defendant No. 9/appellant alonehas preferred this second appeal challenging the judgment and decree passed by the FirstAppellate Court in Title Appeal No. 02/09 and this second appeal was admitted on 05.11.2014on the following substantial questions of law:-

i) Whether the finding of the learned First Appellate Court thatplaintiff fulfilled the condition precedent for pre-emption underMohammendan law is perverse?

ii) Whether the plaintiff discharged burden of Talab-e-ishad soas to establish his right of pre-emption over the suit property?

7. Ms. Borgohain, the learned counsel for the appellant submits that the learned trialcourt has rightly appreciated the evidence on record inasmuch as, it is mandatory on the partof the plaintiff-respondent to prove the conditions required under Section 236 (Mulla’sPrinciples of Mahomedan Law) prescribing the requisites for making a demand for pre-emption. It is the submission of the learned counsel that it is mandatory to prove that at firstthe plaintiff-respondent has to assert the right on receiving information of the sale which iscalled Talab-i-moswaibat. Thereafter the plaintiff-respondent is to prove that he without delayaffirm the intention referring expressly to the fact that the Talab-i-moswaibathad already beenmade and has made a formal demand either in the presence of the buyer or the seller or onthe premises which are the subject of sale and in the presence of at least two witnesses. Thesaid formality is called Talab-e-ishad. Referring to the evidence on record Ms. Borgohainsubmits that there is no mention of the second witness who was present at the time of Talab-e-ishad. nor there is any pleading to that effect naming the persons who were present at thatrelevant point of time. The plaintiff-respondent himself failed to prove the date on which hecompleted Talab-i-moswaibat. The PW-2 who claimed to witness the performance of the bothTalab-i-moswaibat and Talab-e-ishad by the plaintiff respondent No. 1stated that on the date onwhich the appellant (defendant No. 9) visited the land so sold to her there was commotion inthe locality. But on the other hand the PW-1, the plaintiff-respondent No.1 in his cross-examination deposed that there was no such commotion on that particular date. The saidevidence was rightly appreciated by the trial court but on the other hand the first Appellate Court failed to consider the said evidence in its true perspective to assess its evidentiaryvalue. Accordingly, the learned counsel for the appellant sought for deciding the substantialquestions of law in favour of the appellant.

8. Mr. Sattar, on the other hand made a reference to the evidence on affidavit of the solewitness of the defendant-appellant DW-1 wherein the said witness, one of the sellers of theland to the defendant-appellant admitted the fact that the plaintiff-respondent demandedenforcement of his right of pre-emption. It is further submitted that the purchaser, thedefendant-appellant did not even grace the witness box though she filed the writtenstatement jointly with her vendors. Mr. Sattar further states that the right of pre-emptionought to have been challenged by the appellant and to that effect she ought to have filed herwritten statement on her own. Regarding the presence of the required two numbers ofwitnesses while performing the formality of Talab-e-ishad, Mr. Sattar submits that the PW-2 inhis evidence deposed that he witnessed the said formalities when there was commotion andthere were various persons present who witnessed the said formalities. On a specific query asto fulfillment of the condition as per the mandate of Section 236, for enforcing the pre-emption right, Mr. Sattar submits that it is sufficient that the PW-2 had deposed that leavingaside him there were various persons who noticed the observance of the said formalities. The evidence on affidavit by the DW-1 itself negates the substantial question of law no. 1which requires no further argument. Accordingly, Mr. Sattar submits that the second appealrequires to be dismissed.

9. Considered the submissions of the learned counsel. Perused the records and theevidence. Section 236 (Mulla’s Principles of Mahomedan Law) prescribes the requiredconditions before enforcement of the right of pre-emption which is reproduced hereinbelow:- “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 onreceiving information of the sale. This formality is called talab-i-mowasibat(literally, demand of jumping, that is, immediate demand): and unless

2) he has with the least practicable delay affirmed the intention, referringexpressly to the fact that the tala-i-mowasibat had already been made, andhas 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, and (b) in the presence at least of two witnesses. This formality iscalled talab-i-ishhad.”

10. The PW-1 is the plaintiff-respondent No. 1. In his cross-examination he deposed thathis elder brother and himself sold their respective shares of land to one Moromi Hazarika byway of a Registered Sale Deed. He also stated Mazid, one of the brothers also sold the landto Rezia after the decree was passed in the earlier suit. Leaving aside his share rest land wassold to Rezia without informing him. He cannot say the date on which he demanded topurchase the land at the time of selling Mazid’s land. He did not demand to purchase thesame as there was no money at that relevant point of time. Now as he has money so hedecided to purchase and informed the same on 29.03.2005 at about 10:30 a.m. At the timeof observing the formalities his elder sister Nazima Begum was present. He claimed that theproforma defendant No. 10 Runuma was present. About one year back from the date ofdeposition there was no commotion nor any disturbances for breaking of lock in the housestanding over the land so sold. At the time of the demand made by him, there were manypersons whom he knew like Nanda Gupta, Awal. But he does not know the names of otherpersons. PW-2 is Nanda Gupta, who in his cross-examination deposed that about 10/11months back there was commotion over the land as the lock of the house standing over thesuit land was tried to be broken which was resisted by the plaintiff-respondent No. 1. Afterthe said incident again after one week and on another date about fifteen days thereafter hevisited the suit land but he does not remember the date. He cannot name the neighboursresiding thereon. On the said dates he witnessed various persons but he could not namethem. On the date of incident he saw 10/15 number of persons. The PW-3 A. K. Md. Sazzadwho except the devolution of the interest of the land upon the plaintiff-respondent did notdepose anything with respect to the observance of the formalities by the plaintiff-respondentNo.1 before enforcement of his right of pre-emption.

11. From the aforesaid evidence on record and in absence of pleadings in respect of thenames of the witnesses who were present while asserting the demand as required under

Section 236 (Mulla’s Principles of Mahomedan Law) referred hereinabove, it cannot be heldthat the plaintiff-respondent No. 1 discharged the burden of complete observance of Talab-e-ishad in order to establish his entitlement for enforcing his right of pre-emption over the suitland. The right of pre-emption is a weak right which normally requires evidence of suchnature that no second thought is required to bring the preponderance of probabilities offacing inconvenience out of the sale to a person other than the one outside from the family.The material facts must be pleaded and proved. Performance of each and every conditionsrequired to be fulfilled as prescribed under the mandate of the Mohamedan Law must beproved. For that purpose it is obligatory on the part of the person claiming enforcement ofthe said right to name the persons who witnessed performance of the pre-conditions asstipulated under the law not in the evidence only but in the pleadings also. Casual pleadingswill not entitle a person to that relief inasmuch as a lawful purchaser has to be denied theright accrued on him/her on the basis of the lawful purchase over the land. But in the presentcase the plaintiff-respondent No.1 failed even to plead the names of the witnesses who werepresent at the time of performance of the pre-conditions for his entitlement to the right ofpre-emption. Further the presence of two persons while performing Talab-e-ishad is amandatory requirement. Failure to name such witness in the pleadings will carry an adverseinference against the person seeking enforcement of his pre-emptory right and the Courtquite naturally would be reluctant to accept the preponderance of probabilities of observanceof the mandatory requirements to its satisfaction.

12. Accordingly, the substantial question of law Nos. 1 and 2 are decided in favour of thedefendant-appellant. This second appeal thus stands allowed. No costs. Send back the LCR.Prepare a decree.

JUDGE