P L D 1962 Dacca 463 (PLP)

B. C. Das for Petitioner. A. W. Chowdhury for the Opposite‑Parties. This application under section 115 of the Code of Civil Procedure is directed against the appellate order of Mr. Ershad Ali, Additional District Judge, third Court, Barisal, reversing the decision of Mr. N. Zaman Chowdhury, Munsif, 2nd Court, Pirojpur. The facts giving rise to the present application may be shortly stated as follows: ‑

2. Opposite‑party No. 1 applied for pre‑emption of some property, which had been transferred to opposite‑party Nos. 2 to 4 by the present petitioner by a deed of sale in October 1956. There was an agreement contemporaneous with this document by which opposite‑party Nos. 2 to 4 agreed to reconvey the property to the present petitioner, if the consideration money of the conveyance was paid back within a certain time. In pursuance of the said agreement a deed of reconveyance was executed by opposite‑party Nos. 2 to 4 in July, 1957. Thereafter on the 28th October, 1957, the present opposite‑party No. 1 applied for pre -emption on the ground that he was co‑sharer of the disputed holding. The application for pre‑emption was resisted inter alia by the present petitioner on the ground that the property having been reconveyed to him by his vendees before the application for pre‑emption was made, opposite‑party No. 1 could not maintain his application.

3. The trial Court gave effect to this contention but the Appellate Court on a consideration of some decisions of the Calcutta High Court, which I shall presently discuss has held that opposite‑party No. 1 was entitled to pre‑empt the land that was transferred in favour of opposite‑party Nos. 2 to

4. The view that the lower Appellate Court has taken, finds support in the decision of Abdus Sattar Mallik v. Yunus Mallik and others (P L D 1961 Dacca 512). This decision by Rahman, J. is based on two decisions of the Calcutta High Court. The first decision is reported in 53 C W N

678. There the learned Judge took the view that if there was a sale with a condition that the purchaser would reconvey the property if the consideration was offered back to him within a certain period of time, which could operate to exclude an appli cation under section 26‑F of the Bengal Tenancy Act, then the position would be that a party at his will would be able to suspend the operation of a statute. The learned Judge seems to be of the opinion that such an agreement with a purchaser if allowed to prevail as against a pre‑emptor, the effect of that would be that the operation of section 26‑F will remain suspended. On a careful reading of this decision I am unable to come to the same conclusion as the learned Judge has arrived at in this case. If such an agreement is given effect to the only result that will follow is that the pre‑emptor will take the property subject to the agreement and if the party in whose favour the agreement stand, tries to enforce it, the pre‑emptor will have to give in. I am really unable to understand how the operation of section 26‑F of the Bengal Tenancy Act remains suspended by giving effect to such an agreement.

4. The other decision on which the lower Appellate Court has relied and which was really taken into consideration by Rahman, J., in P L D 1961 Dacca 512 for holding that the pre- emptor can enforce his right in spite of such an agreement in the decision in the case of Nishi Kanta Das v. Jnanendra Nath Mondal and others (57 C W N 253). The judgment in this case was also delivered by Mr. Justice Chakraborty who decided the case in 53 C W N 678 but the decision is of a Division Bench. In this case the view that has been taken is that an agreement of the nature mentioned above does not confer any interest in the land and, therefore, the right of the pre‑emptor, which accrues on the date of the original sale is not affected by such an agreement. These two decisions of the Calcutta High Court were considered by a Division Bench of the said Court in the case of Sital Chandra Kole and others v. Mihilal Kole and others (58 C W N 1000) There the learned Judges after due considera tion of the two decisions, referred to above, have taken the view that an agreement for sale stands side by side with a sale and or an agreement for sale. They do not necessarily involve any incongruity or illegality. The obligation under the agreement for resale becomes annexed to the ownership by reason of the principle underlying section 40 of the Transfer of Property Act, the principles of which apply to involuntary transfers as well as statutory transfers unless excluded either expressly or by necessary implication. The suit in this case was for specific performance of contract on the basis of the agreement for resale against the pre‑emptors and it has been held that since the pre‑emptor had notice of the agreement for re‑sale they were bound by the same and could not resist its enforcement.

5. Mr. Justice Rahman, has distinguished the case from the facts of the case which was under consideration by him. In that case, it was claimed, the reconveyance had taken place before the pre‑emption application was allowed but since it was found that the reconveyance was by making only an endorsement on the back of the document of sale, it was not effective, not being registered.

6. The other ground, why the decision in 58 C W N 1000 was not followed, was that the learned Judge was of the view that the decision of Chakraborty, J., in 53 C W N 678 that the sale was complete and. the right of the pre‑emptor to pre‑empt upon the sale and the agreement for reconveyance could not affect that right, for it was not a right in property, was the correct view. The position that a pre‑emptor's right arises upon the sale cannot be disputed but the question is whether when the sale is accompanied by an agreement for reconveyance of the land can the party, in whose favour the agreement stands it (sic) as against the pre- emptor. In my view, the right of the pre‑emptor is not absolute and is subject to any agreement accompanying the sale. If the right of pre‑emption is enforced with notice of the agreement he takes the property subject to the agreement. If, however, a reconveyance has taken place already there is no question of enforcement of the right of pre‑emption as against a property, which has again gone back to the original owner. With due deference to the opinion of Mr. Justice Rahman, I am unable to agree with his decision in the case reported in P L D 1961 Dacca

512. Reconveyance, in this case, as I have already pointed out, took place in July, 1956, and since the present petition for pre‑emption was filed in October, 1957, the application was not maintainable. The result, therefore, is that this Rule is made absolute. The order of the learned Additional District Judge is set aside and that of the learned Munsif is restored. In view of the facts of this case 1 direct that each party will bear its own costs throughout. K. B. A. Rule made absolute.