Find a Lawyer

Civil Rule No. 46 of 1967, decided on 18th April 1968.

, S. 96-Residential land within Municipal area-Not subject to pre-emption under S. 96.

Civil Appeal No. 47-D of 1963 rel.

, Ss. 151 & 153 and O. VI, r. 17 read with East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), S. 96 and East Bengal Non-Agricultural Tenancy Act (XXIII of 1949), S. 24-Amendment of pleadings-Plaintiff finding that his suit for pre-emption was not governed by S. 96, East Bengal State Acquisition and Tenancy Act, 1950, making application before High Court for amendment stating that suit be treated as having been instituted under S. 24, East Bengal Non-Agricultural Tenancy Act, 1949-Held, too late for plaintiff-petitioner to wake up at this stage for amendment of pleadings-Amendment sought being not for removal of minor technical defect-Application, in circumstances, rejected.

Indubala Dassi v. Lakshi Narayan Ganguly and others 38 C W N 1146 and Badri Prasad v. Amjad All and others A I R 1933 All. 294 distinguished.

Shah Muhammad and others v. Hayat and others P L D 1960 Lah. 975 rel.

A. M. Khan Chowdhury for Petitioner.

Haradhan Sarker for the Opposite-Party.

---This Rule arises out of a Miscellaneous case under section 96 of the East Bengal State Acquisition and Tenancy Act, 1950 (hereinafter referred to as the S. A. T. Act), for pre-emption under the following circumstances :-

The case of the pre-emptor-opposite-party Jadav Chandra Mali was that the disputed holding recorded in Khatian No. 55 of Mouza Shahadebpur was owned by him and the Opposite----- Parties Nos. 2 to 5, and that the opposite-Party No. 1 had purchased 13 acres of land from opposite-Parties Nos. 2 and 3 by a kabala dated 3-2-1964 without service of any notice upon the petitioner. The petitioner alleged that the Opposite-Party No. 1 Who is the petitioner here, was stranger purchaser and the petitioner became aware of the sale for the first time in Falgoon 1371 B. S., when a temporary but was raised on the case land.

The Opposite-Party No. 1 the purchaser (petitioner before us) resisted the claim of the petitioner by filing a written objection on the ground that petitioner's allegation of want of knowledge was false and that the petitioner was aware of the sale when there was demarcation of the land after purchase of the opposite party.

It was also stated that the land in dispute was a Chandina land within the Municipal area and therefore section 96 of the S. A. T. Act had no application.

The learned Munsiff on a consideration of the evidence negatived the contentions of the purchaser-petitioner and allowed the case of the petitioner before him for pre-emption.

On appeal, the learned Subordinate Judge confirmed the order of the learned Munsiff thus dismissing the appeal.

It may be noted that the learned Subordinate Judge while confirming the order of the learned Munsiff observed as follows :-

"A reference to the relevant khatian marked Exh. 2 will show that the holding in question is an occupancy raiyati holding. The certified copy of the disputed kabala marked Exh. 1 also describes the tenancy as such and there is nothing satisfactory on record to hold that the holding in question is governed by the Non-Agricultural Tenancy Act although the same as a residential land has since been included within the Municipal area. In the circumstances of the case the learned Munsif appears to have rightly held that the holding in question is a raiyati holding and section 96 of the S. A. T. Act is applicable."

Mr. A. M. Khan Chowdhury, the learned Advocate appearing for the purchaser-petitioner and challenging the propriety of the above order of the learned Subordinate Judge confirming the order of the learned Munsiff in favour of the pre-emptor-opposite-party, has urged ground No. 1 of the petitioner which is as under :-.

"For that the learned Additional Subordinate Judge acted illegally and with material irregularity in holding that section 96 of the East Bengal State Acquisition and Tenancy Act was applicable in the case and in observing that there is nothing satisfactory on record to hold that the holding in question is governed by the Non-Agricultural Tenancy Act, although the same is residential land and is included within the Municipal area."

In support of the above ground Mr. A. M. Khan Chowdhury has placed before us the unreported Supreme Court decision in Civil Appeal No. 47-D of 1963 dated 22-1-1965 in which the question involved was as to whether an application for pre emption under section 96 of the S. A. T. Act can be entertained in respect of Non-Agricultural land. The Supreme Court, proceeding on -the admitted basis that the dispute was as to Non-Agricultural homestead land within the Municipality, ad in our present case, observed and found as under "Because section 96 occurs in Chapter XIII, the trial Court held that the right of pre-emption can be claimed in respect of non-agricultural land. The Court however, overlooked the fact that this Chapter which regulates the rights and liabilities of a raiyat was made applicable to tenants of non agricultural land but it does not enlarge the content of the right as given in section 96 or introduce any change in the incidents of the right. In other words it does not materially affect the character of the land in respect of which the right of pre-emption can be claimed.

Section 96 in clear terms lays down that this right of pre-emption will be available only in respect of a holding'. In view of the definition of holding' as given in section 2(13) of the Act it cannot be said that the right of pre-emption can be exercised in respect of non-agricultural land. Here it may be mentioned that there is specific provision for pre-emption of non-agricultural land in the East Bengal Non-Agricultural Tenancy Act (XXIII of 1949). Under that Act a contiguous owner cannot claim a right of pre-emption. After review of relevant provisions of the East Bengal State Acquisition and Tenancy Act we think that section 96 is confined to agricultural land and therefore a right of pre-emption under this section cannot be claimed in respect of a homestead land within a Municipality."

In the light of the above, the present one being a case of residential land within the Municipal area, we feel inclined to hold that section 96 of the S. A. T. Act was wrongly applied by the Courts below in favour of the pre-emptor opposite-party.

Mr. Haradhan Sarker for the pre-emptor-opposite-party being confronted with this predicament has made a petition under Order V1, rule 17 read with section 151 and section 153 of the Code of Civil Procedure for amendment of the application for pre-emption on behalf of the pre-emptor Jadav Chandra Mali. It has been stated in this application that the application for pre-emption should have been made under section 24 of the Non-Agricultural Tenancy Act instead of section 96 of the S. A. T. Act and that the petitioner bona fide prosecuted the proceeding under section 96 of the S. A. T. Act because the purchaser himself purchased the holding treating the same as a raiyati one. It has further been stated that the same is a raiyati one. It has further been stated that the time limit in filing an application under section 24 of the Non-Agricultural and Tenancy Act is same as that of under section 96 of the S. A. T. Act and that in case of Non-Agricultural Tenancy Act compensation only of five per cent. of the price money was to be deposited ; whereas in the case of S. A. T. ten per cent. was to be deposited and that the pre-emptor had deposited the price along with ten per cent. compensation for pre-emption which was more than the statutory requirement for filing an application for pre-emption under section 24 of the Non-Agricul tural Tenancy Act. In those circumstances, it has been stated that it was necessary to amend the application for pre-emption in the manner following :-

"(a) In the cause title in place of "East Pakistan" Estate Acquisition and Tenancy Act "in accordance with the provision of Act 9 of Estate Acquisition and Tenancy Act, the land so acquired as "Barshoti Shatya". Following to be substituted "Non-Agricultural Tenancy Act" vide Art. 28 of Non-Agricul tural Tenancy Act. (Non-Agricultural land).

(b) In paragraph one for the word "Barshati Shatya" the words "Chandin Shatya" (Non-Agricultural Tenancy) to be substituted."

Mr. Haradhan Sarker has in support of the amendment as prayed for by him, relied on the decision in the case of Indubala Dassi v. Lakshi Narayan Ganguly and others (38 C W N 1146). In that case the plaint contained a claim on promissory note as also on consideration. Amendment after limitation period was sought so as to make the claim on consideration clearer. The question was whether a plaint containing claim of promissory note could be allowed to be amended so as to introduce claim on consideration after expiry of limitation. It was held that there the plaint as originally framed discloses a claim on the promissory note as also on the original consideration, and where no objection was taken by the defendants to the framing of issues relating to the alternative claim based on the consideration, amendment of the plaint so as to place the alternative claim beyond doubt ought to be allowed and the plaintiff ought to be allowed to adduce evidence relevant to the issues bearing on the alternative claim.

It will be noted that in that case only the claim on consideration was sought to be made clearer and that was allowed.

Here in our present case the purpose is much more far reaching. What is sought here is a change in the Act. It is not a mere change in the complexion that is sought but substitution of a new case altogether and the implications are not that of mere change of one kind of pre-emption to another.

The other case relied on by the learned Advocate for the petitioner is that of Badri Prasad v. Amjad All and others (A I R 1933 All. 294) in which it was held inter alia that sections 151, 152 and 153 are very salutary provisions of law and are meant to invest the Courts with authority to see that the object for which the Court exists is carried out and that the merest technicality may not be allowed to stand in the way of substantial justice. Though Order XXXIII, rule 5 empowers a Court to reject an application for permission to sue as a pauper if it is not properly framed as directed therein a Court should not reject the application on the ground that it is not properly verified without giving the applicant a chance to correct the verifi cation as such rejection amounts to an abuse of the process of the Court.

As it will appear the Court there was too technical in rejecting the application for permission to sue as a pauper merely on the ground that it was not properly verfied without giving the applicant a chance to correct the verification.

That purchaser in our present case having clearly contended in the trial Court that the land involved was a Chandina land within the Municipality, it is too late in the day for the petitioner to wake up at this stage for amendment of the pleadings. At any rate what is being sought now is not the opportunity of removal of a minor technical defect as in the cases cited.

Before leaving the subject, we feel inclined to refer to the decision in the case of Shah Muhammad and others v. Hayat and others (P L D 1960 Lah. 975). The relevant observations therein were as follows :-

Whether or not amendment of pleadings should be allowed must depend on the circumstances of each case, and this is why discretion has been given to Courts to allow or disallow amendments. If, for technical character Courts will not be slow to allow amendment in order that justice between the parties may not be defeated for a mere technicality. If, however, the amendment will change the entire complexion of the suit, Courts will be slow to allow the amendment unless such special circumstances exist which make the amendment necessary. That a suit for pre-emption stands on precisely the same footing as any other suit as far as the powers of Courts to allow amendment of pleadings go is hardly open to question but if, in a suit for pre-emption, a plaintiff wants to amend his plaint in order that he may be able to plead that he had a superior right of pre-emption, while in the original plaint his pleading was not to that effect the Court will be slow to allow the amendment unless the omission, in the first instance was either accidental or due to a slip of the pen.

Where the plaintiffs claimed a superior right of pre-emption to that possessed by the vendees on the ground that the land in suit had been sold by the common ancestor of the plaintiffs to the common ancestor of the vendors-a ground which, as pointed out by the vendees in their written statement, was not recognized by law, whereupon the plaintiffs sought new grounds for the suit, viz., that they were co-sharers in the khata, as well as proprietors in the patti, and, meanwhile about eight months had elapsed since the defect in the plaint had been pointed out by the defendants-vendees."

It was held that the plaintiffs' application for amendment was rightly rejected and that inexperience of counsel was no ground for showing concession in the matter of amendment of pleadings and that pre-emption being but a predatory right, Courts should grant but little concession to a plaintiff in such a suit.

In our present case too it could not be said that what happened to the petitioner of this part was accidental or due to slip of the pen. He had ample opportunity besides.

Being in respectful agreement with the principle of the above decision, we reject the present application under Order VI, rule 17 and make Rule as obtained by the purchaser-petitioner absolute c and we set aside the order of the learned Subordinate Judge dated 10th of September 1966. In the circumstances of the case however we make no order as to costs of this Rule.

----I agree.

A.B. Rule made absolute.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.