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C. P. S. L. A. No. 6‑D of 1970.

C. P. S. L. A. No. 7‑D of 1970

Civil Petitions for Special Leave to Appeal Nos. 6‑D and 7‑D of 1970, decided on 16th June 1970.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 24th October 1969, in Civil Rules Nos. 776 and 777 of 1966).

Constitution of Pakistan (1962),

Art. 58(3)‑Finding of Courts below arrived at after due consideration of evidence‑New ground involving investigation of documents raised at stage of leave to appeal to Supreme Court‑Petition for leave to appeal dismissed.

C. P. S. L, P, Nos. 6‑D and 7‑D of 1970

M. R. Khan, Advocate‑on‑Record Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing : 16th June 1970.

These two petitions arise out of two proceedings for pre‑emption under section 26‑F of the Bengal Tenancy Act, 1885.

The suits for pre‑emption were filed by the respondents in these petitions to pre‑empt two sales, namely, (i) in favour of the petitioners in Criminal Procedure No. 6‑D of 1970 in respect of C. S. Plot No. 94 of Khatian No. 51 on the 24th of March 1956, and (ii) in favour of the petitioners in Criminal Procedure No. 7‑D of 1970 in respect of C. S. Plots Nos. 247 and 25.5 of the same Khatian on 24th of March 1956.

Admittedly the purchasers were strangers to the jote, but they claimed that the pre‑emptors had no right to pre‑empt, as the rent of Khatian No. 51 had been sub‑divided on an application by Prasanna and Soudamini, the predecessors‑in‑interest of their vendor, in 1348 B. S. and since then rents were being paid separately for C. S. Plot No. 244 and the other plots of this khatian, namely, C. S. Plots Nos. 94, 174, 207, 255 and 287. After the acquisition of rent‑receiving interests the land in C S. Plot No. 244 had also been shown in the finally published khatian under section 19 (3) of the East Bengal State Acquisition and Tenancy Act, 1950, as in a sub‑divided Khatian No. 51/1, while the other plots were shown under Khatian No. 51.

The pre‑emptors, on the other hand, maintained that they were still co‑sharers, as there was no valid distribution of rent in respect of Khatian No. 51 by the consent of the entire body of land‑lords and the co‑sharer tenants. According to the pre emptors, one Syedani Bilkis Banu, who had inherited the, interest of her husband, Nur Ahmad Chowdhury, in the khatian, had never given to the consent to the distribution of rent.

This contention was accepted by the Courts after examination of the evidence and the suits for pre‑emption were allowed. They were upheld on appeal by the Subordinate Judge, Second Court, Mymensingh, and in revision by a learned Single Judge of the High Court of East Pakistan.

The purchaser‑petitioners now seek special leave to appeal and it is contended on their behalf that under the proviso to sub-section (1) of section 88 of the Bengal Tenancy Act a presumption arose if it was proved from entries in the rent rolls of the land lords that the rent payable in respect thereof had been distributed. In the present case, it is contended that if the Courts below had carefully examined Exhs. A series, B, B (1), C (1) and C (2), then it would have been manifest that Mst. Bilkis Banu had accepted distributed rents according to these entries.

This point was never raised in any one of the Courts below. There is only a passing reference to it in the judgment of the learned Subordinate Judge to the effect that the provisions of the proviso to section 88 (1) are not attracted on the basis of provisional rent receipts. Apart from this, on an examination of the documents referred to above, we find that except for the docu ments contained in Exh. A series, the other documents are of the period subsequent to the sales sought to be pre‑empted. These documents are, therefore, of no assistance to the petitioners.

The findings of the Courts blow are based on an examination of a number of records which showed that Mst. Bilkis Banu has acquired the right, title and interest of her husband in lieu of her dower and that she was being shown consistently in various pro ceedings for realization of rents, etc., as a co‑sharer landlord. We see no reason to interfere with this finding which has been arrived at‑ after due consideration of the evidence. In these circumstances, we are not inclined to allow the petitioners to raise a new ground which involves investigation of documents at this late stage.

These petitions are, accordingly, dismissed.

Petition dismissed.

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