-
Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and
ors. (Md. Muzammel Hossain, C.J.) I LNJ AD (2012) 100
APPELLATE DIVISION (CIVIL)
Mr. Md. Muzammel Hossain. CJ. Mr. Surendra Kumar Sinha, J.. Mr.
M. Abdul Wahhab Miah, J. Mrs. Nazmun Ara Sultana, J. Mr. Muhammad
Imman Ali, J. Mr. Justice Muhammad Mamtaz Uddin Ahmed, J. Mr.
Justice Md. Shamsul Huda, J.
Judgment 1st, 8th 15th June, 2011.
} } } } } } } } }
Md. Habibur Rahman Bhuiyan and others
Appellants VS
Mosammat Galman Begum and others
....Respondents
Constitution of Bangladesh, 1972 Article 103(2) If this Division
finds a substantial and grave injustice or if there exists special
and exceptional circumstances it can exercise extra ordinary
jurisdiction for doing complete justice' in any matter pending
before it. This does not mean that in every petition or appeal this
Division will exercise extraordinary jurisdiction and reassess the
evidence on record as may be done in an appeal under clause (2) of
Article 103 (Per S K Sinha majority view). ... (13)
Code of Civil Procedure (V of 1908) Order XLI, Rule 31 The High
Court Division should have exercised its jurisdiction within the
tenor of
CIVIL APPEAL NO. 191 OF 2005 (Arising out of Civil Revision No.
5935 of 2000))
law but in the instant case, it has shirked its responsibility
and relied on the findings of the trial Court overlooking the
findings of the Court of appeal below which has decided the issue
on the basis of the materials on record. The High Court Division
failed to notice the settled principle of law and interfered with
the judgment of the appellate court without assigning reasons in
any manner (Per S K Sinha majority view).
.. (14)
State Acquisition and Tenancy Act (XXVIII of 1951) Sections 89
and 90 Even if the pre-emptee does not raise the points of
requirements as laid down in sections 89 and 90 of the SAT act,
such requirements of law must be satisfied by the pre-emptor before
claiming a right of pre-emption (Per S K Sinha majority view).
. (17) Constitution of Bangladesh, 1972 Article 111 The opinion
as expressed in the Abdus Samad Case (33 DLR(AD)113) being a larger
Bench of the Appellate Division ,the said opinion would prevail
over the opinion as expressed in Abdur Rashid case (58 DLR (AD)
159), (Per S K Sinha majority view). (17)
Code of Civil Procedure (V of 1908) Sections 115(1) There is no
scope on the part of the High Court Division to sit on appeal over
the finding of fact arrived at by the appellate Court. The High
Court Division failed to point out any misreading or
non-consideration of the evidence in arriving at such findings by
the Court of appeal below. These findings being based on proper
appreciation of the evidence on record are
(S.K.Sinha, J.)
-
I LNJ AD (2012) Md. Habibur Rahman Bhuiyan and ors. Vs. Most.
Galman Begum and ors. (Md. Muzammel Hossain, C.J.)
101
binding upon the High Court Division exercising its revisional
jurisdiction (Per S K Sinha majority view). ... (20) State
Acquisition and Tenancy Act (XXVIII of 1951) Section 96 The High
Court Division having accepted the pre-emptees claim of
development, it has impliedly accepted the findings of the
appellate Court that the improvement has been made to the knowledge
of the pre-emptor at least prior to the date of knowledge. There is
thus apparent inconsistency in the judgment of the High Court
Division. In the premises, it is apparent that both the trial Court
as well as the High Court Division did not apply its judicial mind
in believing the date of knowledge of the pre-emptor (Per S K Sinha
majority view). ...(21) Evidence Act (I of 1872) Section 137 The
functions of cross-examination is to have the exact truth, to
ascertain what part of the story is true, what is false and what is
left out-these matters may be learnt, by searching for the
questions put to the witness (Per S K Sinha majority view). A
witness is cross-examined for ascertain-nment of truth as regards
his relationship with the parties, the subject of litigation, his
motives, his inclination and prejudices, his means of obtaining a
correct and certain knowledge of the facts to which he bears
testimony, the manner in which he has used those means, his powers
of discerning facts in the first instance and his capacity of
retaining and describing them. The paramount object of
cross-examination is firstly, to bring out desirable facts of the
case modifying the examination-in-chief or establishing the
cross-examiner's own case; Secondly, to impeach the credit of the
witness, thirdly, the extraction of the qualifying the
circumstances of the
testimony given by a witness and to unveil all the facts known
to the witness, and fourthly, to halt falsehood in its tracks and
discover the truth before the Court of law. In course of
cross-examination if it is possible to unveil any fact which
supports the case of cross-examiner or an indication is revealed
from the lips of the witness or if the witness makes statement
inconsistent with his chief, the Court may infer an adverse
presumption against the party for whom he has deposed in the case
(Per S K Sinha majority view). ... (28) State Acquisition and
Tenancy Act (XXVIII of 1951) Sections 96 Since the pre-emptors
witnesses have admitted the pre emptees case of improve-ment of the
case land in 1995, the pre-emption case is hopelessly barred by
limitation as the case was filed in 1998. The pre-emptor's
witnesses having admitted the pre-emptees case of improvement of
the case land in 1995, the case having been filed in 1998, there is
no doubt that it is hopelessly barred by limitation and the Court
of appeal below is perfectly justified in believing the pre-emptees
case of improvement and construction of the case land. The High
Court Division, in the premises, committed a fundamental error in
interfering with the judgment of the appellate Court on the point
of limitation. Thus, we find that the Court of appeal below on a
proper assessment of the evidence on record rightly held that the
case is hopelessly barred by limitation. (Per S K Sinha majority
view). ...(29) State Acquisition and Tenancy Act (XXVIII of 1951)
Sections 89 and 96 (Evidence Act (1 of 1872) Sections 101, 102,
103, and 104. Since the learned counsel for the appellants gave up
the point of defect of parties, it is not at all necessary to
dwell
(S.K.Sinha, J.)
-
Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and
ors. (Md. Muzammel Hossain, C.J.) I LNJ AD (2012) 102
upon the same. The appellate court misread as well as failed to
consider the material evidence on record and also misconceived the
case of the pre-emptor as made out in the pre-emption petition in
arriving at the finding of knowledge of the pre-emptor as to
transfer in question. It is the settled principle of law that the
testimony of a witness cannot be disbelieved only on the ground of
relationship if his evidence is otherwise found to be true and
withstand the test of cross-examination. The pre-emptor examined
four witnesses in support of knowledge about the transfer in
question for the first time in the salish baithak held on
20-03-1998 and such evidence of the witnesses could not be shaken
in cross-examination. The pre-empees shall be entitled to get
development cost till getting notice of the pre-emption
application. The pre-emptee took false plea regarding serving
notice under section 89 of the SAT Act. The contesting pre-emptee
has failed to prove that he undertook development work in the case
land in 1994/1995 rather it supported the case of the pre emptor
that such development work was done and the shop rooms were erected
after 20-03-1998. The pre-emptor proved her case of knowledge by
four witnesses and she discharged her onus and then it shifted upon
the contesting pre-emptee but he failed to discharge the said onus.
The development cost was fixed at Tk. 75,000,000 by the High Court
Division which appears to be reasonable. The appeal is dismissed
without any order as to costs. (Per M.A. Wahhab Miah minority
view). (39, 59, 60, 63 & 65) Abdus Samad and others vs Md.
Sohrab Ahmed and others, 33 DLR (AD)113; Abdur Rashid Sarker (Md)
and others vs Dines Chandra Das and others, 58 DLR (AD) 159;
Motilal Sikder vs Benodini Basi, 28 DLR(AD) 5; Anwara Khatun vs
Md Abdul Hye, 4 BLC (AD) 14, Samad Sikder @ Somed Sikdar v/s
State,50 DLR(AD)24 and Nnowabul Alam Vs State, 45 DLR (AD) 140,
ref.
Mr. Mahbubey Alam, Senior Advocate, instructed by Mr. Chowdhury
Md. Zahangir, Advocate-on-Record
. For the Appellants No 1.
Mr. Kamal-ul-Alam, Senior Advocate, instructed by Mr. Md. Aftab
Hossain, Advocate-on-Record.
. . . For Respondent No.1:
For Respondent Nos. 2(a)-3: Ex-partee.
Judgment
Md. Muzammel Hossain, C.J: I have gone through the separate
judgments prepared by my learned brother, Surendra Kumar Sinha,J.
and my learned brother, Md. Abdul Wahhab Miah,J. I agree with the
judgment of brother Surendra Kumar Sinha,J.
2. S.K. Sinha, J: Pre-emptor is the appellant who seeks
pre-emption of a holding claiming as co-sharer transferred by the
respondent No. 2 in favour of Sultan Uddin Bhuiyan, the predecessor
of the respondent Nos.1-3. Leave was granted to consider on two
points, namely; the defect of parties and the limitation.
3. Short facts which gave rise to the institute of the
pre-emption proceeding are as follows:
Elahi Box and Abdul Malek Mollah are owners of the case holding
in equal shares. There was an amicable partition between the said
co-sharers. By an amicable partition Abdul Malek Mollah got 13
decimals of land of the
(S.K.Sinha, J.)
-
I LNJ AD (2012) Md. Habibur Rahman Bhuiyan and ors. Vs. Most.
Galman Begum and ors. (Md. Muzammel Hossain, C.J.)
103
case holding who died leaving wife, a son and two daughters. On
the death of Abdul Malek Mollas wife, her interest devolved upon
her son and daughters. The pre-emptees father Sultan Uddin Bhuiyan
was a bargadar under the preemptors father and later on under her.
Pre-emptor requested the respondent No. 2, the vendor on different
occasions to partition the joint property left by her parents.
Pre-emptors husband being a Government Servant, she used to stay
with her husband at different places and so she could not visit her
paternal home regularly. On her request her brother, the vendor,
arranged a meeting for amicable partition of the joint property and
in the said meeting, the vendor disclosed that he had transferred
the case land to the father of the pre- emptees when she came to
know about the transfer. Thereafter pre-emptor obtained the
certified copy of the deed and ascertained about the transfer. No
notice for transfer was served upon her and she being a co-sharer
in the holding is entitled to preempt the land transferred by her
brother.
4. The pre-emptees contested the case denying the material
averments made in the petition and stated that the land in R.S.
Plot No. 7585 belonged to Elahi Box and Abdul Malek Mollah in equal
shares and that each of them got 13 decimals of land. Elahi Box
died leaving a son, the vendor, and a daughter by the 1st wife.
Elahi Boxs son, the vendor by amicable arrangement with his sister
got 13 decimals of land of Plot No. 7585 in his share, who sold the
same to pre-emptees predecessor and after purchase he filled up the
land at a cost of Tk 2,00, OOO/- and erected structures. Pre-emptor
was aware about the transfer as she used to visit her village
occasionally and as such it was known to her that the pre-emptees
are the owners of the land by purchase. They have got
their names mutated upon separation of the jama and have been
paying rent. The case is hopelessly barred by limitation and also
bad for defect of parties.
5. The trial Court allowed the pre-emption and on appeal from
the said judgment, the Court of appeal below reversed the judgment
of the trial Court and dismissed the pre-emption. The pre-emptor
thereupon took a revision petition in the High Court Division which
made the rule absolute, set aside the judgment of the Court of
appeal below and restored that of the trial Court. While
interfering with the judgment of the lower appellate Court, the
High Court Division preferred to approve the views of the trial
Court on the reasonings that it had the advantage to see the
demeanour of the witnesses and disposed of the issues in a
slip-shod manner without reversing the findings.
6. The moot question is whether the High Court Division is
justified in disturbing the findings of fact arrived at by the
Court of appeal below holding that the case is barred by limitation
and bad for defect of parties, which are based on appreciation of
the evidence on record.
7. Mr. Mahbubey Alam, learned counsel appearing for the
pre-emptees appellants has taken us to the pleadings, the evidence
on record, the judgments and submits that the manner in which the
High Court Division interferes with the judgment of the lower
appellate Court is against the settled principles of law, inasmuch
as, the lower appellate Court upon proper sifting of the evidence
on record has held. that the case is bad for defect of parties and
also barred by limitation but the High Court Division without
reversing the findings on the above two counts has interfered with
the judgment and in doing so, it has also assigned no reasons
whatsoever.
(S.K.Sinha, J.)
-
Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and
ors. (Md. Muzammel Hossain, C.J.) I LNJ AD (2012) 104
8. Mr. Kamal-ul-Alam, on the other hand, contended that the
pre-emptees did not raise, the point of defect of parties at the
earliest opportunity; for which , t he H igh Cour t D iv i s ion
had r igh t ly interfered with the judgment of the Court of appeal
below holding that since this point had not been raised, the Court
of appeal below had committed error of law in finding the case as
bad for defect of parties. In support of his contention, the
learned counsel has referred the cases of Abdus Samad & others
Vs. Md. Sohrab Ali and others, 33 DLR (AD) 113 and Abdur Rashid
Sarker (Md) and others Vs. Dines Chandra Das and others, 58 DLR
(AD) 159. Learned counsel further contended that the High Court
Division is justified in restoring the judgment of the trial Court
on the point of limitation, inasmuch as, the Court of appeal below
disbelieved the pre-emptors witnesses merely on the ground of
relationship which is not a legal ground for disbelieving a
witness.
9. On the point of the defect of parties, the Court of appeal
below on assessment of the evidence on record came to a definite
conclusion that the heirs of Elahi Box are admitted co-sharers and
that since the pre-emptor had admitted the same, the trial Court
committed illegality in allowing pre-emption ignoring the point of
defect of parties . The High Court Division was of the view that
the trial Court on consideration of the materials on record came to
the finding that the case was not bad for defect of parties and
that the Court of appeal below without assigning any reason
abruptly came to the finding on the point of defect of parties.
This finding of the High Court Division is based on non-application
of judicial mind, inasmuch as, the Court of appeal below while
deciding the point defect of parties has considered both oral
and
documentary evidence, particularly the khatians and came to the
conclusion that the heirs of Elahi Box are admitted co-sharers. The
Court of appeal below further observed that the trial Courts
observation that the pre-emptees did not point out about the names
of the persons who have been left out despite that they were asked
to supply the particulars in the interrogatories was not correct,
inasmuch as, in the interrogatories submitted on behalf of the
pre-emptor, it was not asked to supply the names of the persons who
had been left out and naturally the pre-emptees did not supply the
names. This finding of the Court of appeal below is based on
consideration of the materials as well as the evidence on record
and it being a finding of fact is binding upon the High Court
Division, The High Court Division while interfering with the
judgment overlooked the reasons assigned by the appellate Court and
did not assign any reason as to the correctness of the findings
arrived at by it.
10. Learned counsel for the pre-emptor argued that this point
having not been specifically raised in the trial Court the
appellate Court was not justified in deciding the point. There is
no dispute that the pre-emptees made general statement on the point
of defect of parties in the denial portion of their pleadings but
in the statements of facts, they positively asserted that the heirs
of Elahi Box are co-sharers of the khatian. However, they did not
claim that as those heirs having been left out, the case is bad for
defect of parties. The trial Court discarded this point observing
that the pre-emptees did not supply the names of the persons who
had been left out in answer to the interrogatories supplied by the
pre-emptor. This observation suggests that the pre-emptees have
raised the point in the trial Court, and the lower appellate Court
reversed
(S.K.Sinha, J.)
-
I LNJ AD (2012) Md. Habibur Rahman Bhuiyan and ors. Vs. Most.
Galman Begum and ors. (Md. Muzammel Hossain, C.J.)
105
the observations of the trial Court on perusal of the
interrogatories. Since there are conflicting findings on the point
of defect of parties, the High Court Division ought to have
examined the record and resolved the issue on perusal of the
interrogatories particularly the lower appellate Court has made
positive finding in that regard.
11. The High Court Division observed that the Court of appeal
below without assigning any reason abruptly came to a finding that
the case was bad for defect of parties. Such a finding cannot be
sustained in law. This is not a legal ground for interference of
the judgment of a court of appeal. The High Court Division ought to
have decided as to whether the finding on the point of defect of
party is based on the evidence on record. The Court of appeal below
observed that the pre-emptor ought to have impleaded all co-sharers
in the S.A. Khatian and apart from that it was observed Avi, Gm,
LvwZqvbi bvwjkx `vMi Aci 11| Avbv Ask Gjvnx eKmi bvg wjwc nBqvQ|
`iLvKvwibx c ^xKvi Kwij I D Gjvnx eKmi Iqvwimvb`i A AM q gvKgvq cfz
Ki bvB therefore we find that the lower appellate Court has
assigned reasons but the High Court Division has overlooked those
findings. In view of the above, the High Court Division erred in
law in interfering with the judgment of the court of appeal below
on this issue.
12. When a finding of fact is based on consideration of the
materials on record, those findings are immune from interference by
the revisional Court except there is non-consideration or
misreading of the material evidence on record. The High Court
Division has no jurisdiction to sit on appeal over a finding of
fact. It is concerned with the question as to whether the appellate
court in giving a particular finding has committed any
error of law resulting in an error in the decision occasioning
failure of justice or such finding is found to have resulted from
glaring misconception of law or there is misreading or
non-consideration of material evidence in arriving at such
finding.
13. Similarly Article 103 does not give a right to a party to
appeal to this Division except in cases provided in clause (2) to
Article 103. Normally this Division grants leave against a
judgment, decree or sentence of the High Court Division or from the
judgment of the Administrative Appellate Tribunal if a substantial
question of law of general or public importance arises which may
not only determine the dispute between the parties but will be
precedent for guidance for determination of similar disputes in
other cases. The mere fact that some question of law arises from
the judgments of the High Court Division or the Tribunal will not
enable a party to claim as of right to appeal to the Division. This
Division would also interfere with the judgment of the High Court
Division or the Tribunal where a finding is reached without taking
into consideration vital evidence or where the conclusions arrived
at without consideration of the materials evidence or the finding
which is inconsistent with the evidence on record. Apart from the
above, if this Division finds a substantial and grave injustice or
if there exists special and exceptional circumstances it can
exercise extra ordinary jurisdiction for doing complete justice in
any matter pending before it. This does not mean that in every
petition or appeal this Division will exercise extraordinary
jurisdiction and reassess the evidence on record as may be done in
an appeal under clause (2) of Article 103.
14. The High Court Division should have exercised its
jurisdiction within the tenor of
(S.K.Sinha, J.)
-
Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and
ors. (Md. Muzammel Hossain, C.J.) I LNJ AD (2012) 106
law but in the instant case, it has shirked its responsibility
and relied upon the findings of the trial Court overlooking the
findings of the Court of appeal below which has decided the issue
on the basis of the materials on record. The High Court Division
failed to notice the settled principle of law and interfered with
the judgment of the appellate court without assigning reasons in
any manner. In Abdus Samad vs. Sohrab Ali, 33 DLR(AD) 113, this
Division Motilal Sikder Vs. Benodini Basi, 28 DLR (AD) 5 and
observed "objection regarding non-joinder of necessary party should
be taken at the earliest opportunity before the trial Court,
because an enquiry on this question may be necessary. Of course, in
an appropriate case such objection may be allowed to be raised in
the appeal. This may be done on the ground that the appeal is
continuation of the suit or proceeding. But there is no scope for
raising the question of defect of parties on account of non-joinder
of necessary parties, for the first time in revision.
15. In Abdur Rashid Sarkers case (58 DLR(AD) 159),two member
Bench of this Division noticed the earlier cases including the case
of Abdus Samad and observed "we are of the view that objection as
to defect of parties is to be taken at the earliest opportunity. In
the instant case that has not been done. Moreover, the pre-emptees
did not supply the names of the persons whose names he put to the
pre-emptor during cross-examination in reply to the interrogatory
served on him. Therefore, in our view he was debarred from making
such cross-examination regarding defect of parties and he was also
debarred form raising the question of defect of parties at that
stage of the proceeding after replying to the interrogatory served
on him earlier".
16. In Abdur Rashid, the pre-emptees raised the point of defect
of parties in the written objection but did not supply the names of
the
persons left out in reply to the interrogatories asked by the
pre-emptor. In the context of the matter, this Division maintained
the judgment of the High Court Division which dismissed
pre-emption. While approving arguments in Abdus Samad this Division
in Abdur Rashid failed to notice the other opinion expressed
therein that even if no objection was raised in the trial Court, it
could be raised at the appellate stage since the appeal is the
continuation of the proceeding. Only exception that has been taken
is that this point can not be raised for the first time in
revision.
17. Whats more, the claim of pre-emption is a predatory right
and that is why, the legislature has imposed conditions for
claiming pre-emption, such as, the petition should be made within
four months of the service of notice under section 89 or if no
notice has been served, within four months of the date of knowledge
of the transfer, that the pre-emptor must be a bonafide cultivator
and must fulfill the conditions laid down in section 90, that a
tenant holding land contiguous to the land transferred claiming
pre-emption shall make "all the co-sharer tenants of the holding
and all the tenants holding lands contiguous to the land
transferred and the transferees" parties and that a co-sharer
tenant claiming pre-emption shall make "all other co-sharer tenants
of the holding and the transferee" parties. Even if the pre-emptee
does not raise the above points, the above requirements of law must
be satisfied by the pre-emptor before claiming a right of
pre-emption. There is no dispute that the pre-emptees raised the
point of defect of parties in the trial Court, of course in an
evasive manner but that the trial Court had considered the said
issue and accordingly, the point was decided. The opinion expressed
in Abdus Samad being a larger Bench, the said opinion would prevail
over the opinion
(S.K.Sinha, J.)
-
I LNJ AD (2012) Md. Habibur Rahman Bhuiyan and ors. Vs. Most.
Galman Begum and ors. (Md. Muzammel Hossain, C.J.)
107
expressed in the case of Abdur Rashid. Therefore, the High Court
Division has committed error of law in interfering with the
judgment of the lower appellate Court on the point of defect of
parties.
18. Mr. Mahbubey Alam pressed the point of limitation and
submitted that the case is hopelessly barred by limitation. As to
the point of limitation, there is no dispute that the case was
instituted more than 8 years after the date of execution of the
sale deed. Pre-emptor claimed that no notice was served upon her
and as she was staying away from the case land with her husband,
she had no knowledge about the transfer prior to 28th March, 1998,
on which date, the vendor disclosed about the transfer of the case
land. The trial Court believed the pre-emptors plea about the date
of knowledge on the reasoning that there are corroborating evidence
of P.Ws.1-4 in this regard and that the claim of the pre-emptees is
inconsistent.
19. The Court of appeal, on the other hand, after reassessment
of the evidence of P.Ws.1-4 held that the pre-emptors witnesses had
admitted the pre-emptees claim of development of the case land
except the amount of costs spent towards such development, that the
improvement and constructions were made in 1995 to the knowledge of
the pre-emptor, that the pre-emptor's witnesses being the nearest
relations, they could not be relied upon without corroboration by
independent witnesses and that the pre-emptor failed to prove that
in the alleged salish there was talk for amicable partition of
other joint properties, which belied her claim of date of
knowledge. The Court of appeal below came to the conclusion that
since the pre-emptor's witnesses had admitted the development of
the case land, it was apparent
that the date of knowledge as stated in the petition was false
and that if the pre-emptees had improved the case land after the
institution of the case on 27th May, 1998 as claimed, she ought
have prayed for injunction restraining the pre- emptees from
improving the case land but she did not take such step.
20. Thus, we find that the Court of appeal below has disbelieved
the pre-emptors claim about the date of knowledge not merely on the
ground of examination of nearest relations but also on taking into
consideration the fact of development of the case land long before
the date of institution of the case to the knowledge of her
witnesses, who are none but her nearest relations. These findings
of the Court of appeal below are based upon a proper appreciation
of the evidence of both sides. There is no scope on the part of the
High Court Division to sit on appeal over the finding of fact
arrived at by the appellate Court. The High Court Division failed
to point out any misreading or non-consideration of the evidence in
arriving at such findings by the Court of appeal below. These
findings being based on proper appreciation of the evidence on
record are binding upon the High Court Division exercising its
revisional jurisdiction
21. More so, the trial Court did not give development costs to
the pre-emptor while allowing pre-emption, although there are
sufficient evidence in that regard, which proved that the judgment
of the trial Court was perfunctory and the High Court Division
though noticed this defect, maintained the judgment of the trial
court by awarding development costs without reversing the findings
of the appellate Court that the development was made in 1995.The
High Court Division having accepted the pre-emptees claim of
development, it has impliedly accepted the findings of the
appellate Court that the improvement has been
(S.K.Sinha, J.)
-
Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and
ors. (Md. Muzammel Hossain, C.J.) I LNJ AD (2012) 108
made to the knowledge of the pre-emptor at least prior to the
date of knowledge. There is thus apparent inconsistency in the
judgment of the High Court Division. In the premises, it is
apparent that both the trial Court as well as the High Court
Division did not apply its judicial mind in believing the date of
knowledge of the pre-emptor.
22. The High Court Division has committed another fundamental
error in disturbing the finding of fact on the point of date of
knowledge, inasmuch as, the High Court Division did not say that
there is no misreading or non-consideration of the evidence on
record by the Court of appeal in arriving at the conclusion that
the pre-emptor had knowledge about the transfer long before the
date of knowledge and that she had instituted the case as soon as
the case land had been improved at huge costs. The High Court
Division though observed that the point of limitation is a disputed
question of fact which can be determined on the basis of the
evidence on record but on the other breath, it observed that the
question of limitation "hinges on the credibility of the witnesses
and the trial Court had the advantage to see the demeanor of the
witnesses and as such the decision of the trial Court in respect of
such finding should prevail. The Court of appeal below, on the
other hand, did not have the advantage to see the demeanor of the
witnesses and as such the finding arrived at by the Court of appeal
as to the limitation cannot get preference".
23. The High Court Division gave precedence to the conclusions
arrived at by the trial Court on the reasonings that the trial
Court was in an advantageous position to assess the demeanour of
the witnesses. This finding of the High Court Division would have
been justified if the trial Court had assessed all material
evidence and arrieved at correct finding after such assessment. The
High Court
Division failed to notice that the trial Court overlooked the
admissions made by the pre-emptors witnesses, who had impliedly
supported the pre-emptees case of improvement. The High Court
Division made further error in accepting the pre-emptees claim of
development of the case land without ascertaining the exact date of
such improvement, and also without repelling the findings of the
appellate Court that the improvement was made in 1995.
24. Since the pre-emptees came up with a specific case that they
in proved the case land in 1995, and since the appellate Court
believed their case on appreciation of the evidence, the High Court
Division could have interfered with such finding if it had found
any misreading or non consideration of this evidence in arriving at
such finding. The High Court Division did not decide the issue in
the manner it ought to have decided while interfering with the
judgment of the appellate Court. This awarding of costs is also
inconsistent with other findings of the judgment of the High Court
Division, inasmuch as, whenever the High Court Division was
convinced that the pre-emptees had improved the case land and spent
Tk.75,000/-, the pertinent question which required to be decided
was, when the pre-emptees had improved the case land? The High
Court Division failed to notice that there is nexus between the
development of the case land and the date of knowledge and since
the pre-emptees have come up with a definite case that immediate
after the purchase, they have developed the case land to the
knowledge of the pre-emptor, the High Court Division under such
circumstances was required to decide the point by bringing all
facts in juxtaposition but it disbelieved the findings of the
appellate Court regarding the date of knowledge without expressing
any opinion in that regard.
(S.K.Sinha, J.)
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I LNJ AD (2012) Md. Habibur Rahman Bhuiyan and ors. Vs. Most.
Galman Begum and ors. (Md. Muzammel Hossain, C.J.)
109
25. The basis of the finding of the Court of appeal on the point
of limitation is based on the evidence of the pre-emptees witnesses
and the admissions of pre-emptor's witnesses in course of cross-
examination. The appellate Court assigned reasons and it cannot be
said that the reasons assigned by it are capricious. The
observations that if the improvement was made during the pendency
of the case as claimed, naturally the pre-emptor would have
intimated the Court and sought for injunction against such
improvement but she did not take any step in that regard, which
suggested beyond doubt that the constructions were made after the
purchase to the knowledge of the pre-emptor, appear to me sound.
The High Court Division totally ignored this finding of the Court
of appeal below.
26. In this regard Mr. Mahbubey Alam has taken us the material
portion of the evidence of the witnesses. Khandaker Mahmud Murshed
(P.W.I) who deposed on behalf of the pre-emptor had admitted that
at least once a year he visited the pre- emptors village home. In
course of cross- examination, he admitted that in 1994, a road
towards the western side and a bridge towards the southern side
were constructed. He admitted that bharatias are in possession of
the shops. He, however, stated that the bharatias came after 28th
March but he failed to substantiate his claim. This witness has
practically admitted the, pre-emptees case. Khandaker Monjur
Murshed (P.W.2) admitted in course of cross-examination that the
case land had been improved by filling earth by the pre-emptees and
their sons. He, however, could not say the date of such
improvement. He admitted that the case land is situated at a
distance of 150 yards from his house and that the pre-emptees
constructed 3 shops. He failed to give the exact date or year on
which the bharatias are in possession. He also admitted
that previously the case land was ditch type of land (low lying
area) and at present there are shops and that the purchasers
improved the case land. This witness suppressed some facts
regarding the exact date from which the tenants have been doing
business but he has practically admitted the pre-emptees case. This
witness being a close neighbour is supposed to know when the
pre-emptees have constructed the shops and let out the same to
bharatias (tenants).
27. Munshi Munir Uddin Ahmed (P.W.3) also admitted that the
pre-emptees constructed shops. In cross-examination, this witness
stated that during the rainy season the case land was under water
but it had been raised by filling earth up to the road level. He
stated that Sultan Bapari and his sons have been enjoying the case
land and that there are 2/3 shops where the shop keepers are
carrying on business of cement and selling tea. He also admitted
that Azahar has been dealing with cement business in one shop as
tenant under Sultan. Iftekher Uddin Mollah (P.W.4) also made
similar statements corroborating with P.W.3. He stated in cross mZ
1-3 bs weev`x Lwi` Gi ZvwiL I `Lji 1995 mbi ga Ni `iRv wbgvY Ki|
This witness admitted the pre-emptees claim of construction of
shops in 1995 and this admission destroys the entire story of the
pre-emptor about the date of knowledge. When the admission of this
witness was confronted to Mr. Kamalul Alam, learned counsel simply
replied that there might be some mistake on the part of the trial
Court in recording the testimony of this witness but he failed to
show anything that this witness did not make such statement. On the
other hand, the pre-emptees have examined 4 witnesses, who have
corroborated the case of pre-emptees that they have constructed
shop in 1995, of them, P.W.4 is a tenant.
(S.K.Sinha, J.)
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Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and
ors. (Md. Muzammel Hossain, C.J.) I LNJ AD (2012) 110
28. A witness is cross-examined for ascertainment of truth as
regards his relationship with the parties, the subject of
litigation, his motives, his inclination and prejudices, his means
of obtaining a correct and certain knowledge of the facts to which
he bears testimony, the manner in which he has used those means,
his powers of discerning facts in the first instance and his
capacity of retaining and describing them. The paramount object of
cross-examination is firstly, to bring out desirable facts of the
case modifying the examination-in-chief or establishing the
cross-examiner's own case; Secondly, to impeach the credit of the
witness, thirdly, the extraction of the qualifying the
circumstances of the testimony given by a witness and to unveil all
the facts known to the witness, and fourthly, to halt falsehood in
its tracks and discover the truth before the Court of law. In
course of cross-examination if it is possible to unveil any fact
which supports the case of cross-examiner or an indication is
revealed from the lips of the witness or if the witness makes
statement inconsistent with his chief, the Court may infer an
adverse presumption against the party for whom he has deposed in
the case. The functions of cross-examination is to have the exact
truth, to ascertain what part of the story is true, what is false
and what is left out-these matters may be learnt, by searching for
the questions put to the witness.
29. On a cursory glance of the evidence adduced by the
pre-emptors witnesses as above, we noticed that these witnesses,
particularly P.W.4 has admitted the pre-emptees claim that they
have constructed shop after improving the case land after purchase
in 1995. The pre-emptors claim that as the pre-emptees were her
borgaders, she had no knowledge about the transfer earlier had been
negated by her witnesses, inasmuch as, her
witnesses admitted that the case land was initially a low lying
land, and that the pre-emptees had raised the level by filling
earth and constructed shops in 1995. Therefore, the story of borga
cultivation is a myth. Further, she did not adduce any reliable
evidence regarding borga cultivation. The High Court Division has
totally ignored the admission of P.W.4 who negated the pre-emptors
plea of date of knowledge and also the year in which the
pre-emptees made construction. I The pre-emptors witnesses having
admitted the pre-emptees case of improvement of the case land in
1995, the case having been filed in 1998, there is no doubt that it
is hopelessly barred by limitation and the Court of appeal below is
perfectly justified in believing the pre-emptees case of
improvement and construction of the case land. The High Court
Division, in the premises, committed a fundamental error in
interfering with the judgment of the appellate Court on the point
of limitation. Thus, we find that the Court of appeal below on a
proper assessment of the evidence on record rightly held that the
case is hopelessly barred by limitation.
30. This appeal merited consideration which is allowed without
any order as to costs.
Sd/- Surendra Kumar Sinha, J.
31. Md. Abdul Wahhab Miah, J: I regret that I could not
subscribe to the views expressed in the judgment of my learned
brother S.K.Sinha, J.
32. Facts leading to this appeal are as follows:
Respondent No. 1 as pre-emptor filed Miscellaneous (pre-emption)
Case No.7 of 1998 in the Court of Assistant Judge, Araihazar,
Narayangonj for pre-emption of the case land impleading the
(S.K.Sinha, J.)
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I LNJ AD (2012) Md. Habibur Rahman Bhuiyan and ors. Vs. Most.
Galman Begum and ors. (Md. Muzammel Hossain, C.J.)
111
present appellants and respondent Nos.2 and 3 as opposite
parties. Of the 5(five) opposite parties, present appellants were
the pre-emptee opposite party Nos.l-3 and present respondent No.2
was the seller opposite party No.4. Respondent No.3 was the other
co-sharer (the appellants as well as the respondents hereinafter
shall be referred to as opposite parties). The case of the
pre-emptor was that the land sought to be pre-empted along with
other land being in total 26 decimals belonged to Elahi Bux and
Abdul Malek Mollah in equal share. There was an amicable partition
between them and Abdul Malek Mollah got 13 decimals of land in his
saham. In 1971, Abdul Malek died leaving behind widow, a son (the
seller opposite party No.4) and two daughters, that is, the
pre-emptor and opposite -party No. 3. Abdul Malek Mollah's wife
Aesha died in 1973 and the case land devolved upon his son and
daughters. The father of the pre-emptees was the bargadar under the
pre-emptor's father and later on under the pre-emptor and the other
co-sharers. After the death of the parents of the pre-emptor, she
on several dates requested the seller opposite party No.4 to
partition the land described in the schedule to the application
along with other land left by them, but he killed time on this, or
that plea. After the marriage of the pre-emptor in May, 1977, she
had to stay with her husband at different places of his posting and
whenever she used to come to her husband's house, she requested the
seller-opposite party to partition the case land along with the
other land but every time he avoided the proposal tactfully. The
co-sharer opposite party No. 5 lives in Dhaka permanently with her
husband. Recently when the pre-emptor put pressure upon the seller
opposite party No. 4 to partition the case
land along with other land which she inherited from her parents,
he was compelled to arrange a gharua baithak at his village home on
20.03.1998. In the said baithak the pre-emptor, her husband, the
other co-sharer opposite party No.5 and her husband, the seller
opposite party No.4, Md. Moniruddin Munshi (Najuk) Khandker Rezaul
Haque, Khandker Badrul Islam, A.N.M. Nazmul Ehsan, Iftekharuddin
Mollah and Nazrul Ahsan Mollah were present. In the said baithak
when the pre-emptor raised the question of partition of the case
land, the seller opposite party No. 4 in presence of the said
persons disclosed that he had sold the same to Sultanduddin
Bhuiyan, father of the pre-emptee opposite party Nos.1-3. On
20.03.1998 the pre-emptor for the first time came to know about the
sale of the case land by the seller opposite party. Gharua baithak
on the said date ended without any final decision of the partition
of the land left behind by Abdul Malek Mollah. Subsequently, the
pre-emptor after making search in the office of Sub-registrar at
Araihazar and Sadar Sub-registry office, Narayanganj came to know
about the sale deed in respect of the case land and obtained the
certified copy thereof on April 6, 1998 and then came to know
definitely about the transfer of the case land by the seller
opposite party No. 4 to the pre-emptee opposite party Nos.1-3 and
not to their father by the sale deed dated 06.06.1996 at a price of
taka 15,000.00. The deed was registered in the office of
Sub-registrar, Araihazar being deed No.2946; the registration of
the deed was complete as per the provision of the Registration Act,
the same having been recorded in book No.l, volume No.36. Before
transfer, the seller opposite party No. 4 did not give any notice
either to the pre-emptor or to opposite party No. 5 either
(M A Wahhab Miha, J.)
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Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and
ors. (Md. Muzammel Hossain, C.J.) I LNJ AD (2012) 112
in writing or verbally. Had the pre-emptor any knowledge about
the transfer of the case land, she would definitely purchase the
same. The seller opposite party was owner of the half of 13
decimals of land and the rest half was owned by the pre-emptor and
opposite party No.5, but he transferred the entire case land
secretly just to deprive the pre-emptor of her right of
pre-emption. The pre-emptor is a co-sharer by inheritance in the
case land, on the other hand, the pre-emptees are strangers therein
and as such, the pre-emptor is entitled to pre-empt the case land
and filed the application for pre-emption within 4(four) months
from the date of knowledge of the transfer in question.
33. The miscellaneous case was contested by pre-emptee opposite
party No. 3 by filing a written objection denying the material
averments made in the application and stating, inter alia, that the
land of S.A. plot No.2901 and R.S. Plot No.7585 belonged to Elahi
Box and Abdul Malek Mollah in equal share. By amicable partition
each of them got 13 decimals of land in their respective share and
they possessed the same accordingly and in the R.S. khatian, the
land of the case plot was recorded in eight annas share each in the
name of Elahi Box and Abdul Malek Mollah; while Abdul Malek Mollah
had been in possession of 13 decimals of land of the case plot, he
died leaving behind a son (Opposite Party No. 4) by the first wife
and a daughter by the second wife. By amicable settlement amongst
the heirs of said Abdul Malek Mollah opposite party No.4 got 13
decimals of land of the case plot in his share and while he had
been in possession thereof sold the same to opposite party Nos.1-3
by a kabala dated 06.06.1990 being kabala No.2946 and handed over
possession of the same to them and since then
they have been in possession thereof. After purchase, the
opposite party Nos.1-3 had been cultivating the case land for 4
(four) years and then in 1994 raised the same by bringing earth by
truck from Gazipur and Manoharer chak. On the raised land, the
pre-emptees erected 4 (four) shop rooms. Of the 4 (four) shops one
is two storied with pucca bhiti and tin roof and tin fencing,
3(three) other shops are with Dochala tin roof with tin fencing.
There are also 4 (four) 1 (one) chala chhapra ghar and the
pre-emptees have been possessing the case land by letting out the
shops to the tenants. Moniruddin is the elder brother-in-law
(husbands elder brother) of the pre-emptor and Amajad, son of
Moniruddin along with his partner Khokan used to deal in electric
goods and power loom parts in a shop in the case land by taking the
same on rental basis. The pre-emptor and the pre-emptees are of the
same village. The houses of the father-in-law of the pre-emptor and
her brother are in the same village and although the pre-emptor
used to live with her husband at his place of posting, she used to
come to the village to represent her husband once or twice a year
and to look after her in-laws. The pre-emptor knew about the
ownership of pre-emptees as well as the fact of development of the
case land and erection of the shop rooms therein. At the time of
purchase of the case land by the pre-emptees, they served notice
upon the pre-emptor and she was aware of the notice and the sale.
Before transferring the case land, the seller-opposite party also
intimated the pre-emptor about the transfer in question and told
her to purchase the case land, but she refused to purchase the
same, then he was compelled to sell the case land to the
pre-emptees. After purchase, the pre-emptees got their names
mutated and paid rents. The pre-emptees spent about taka 3 (three)
lakh in filling the land and
(M A Wahhab Miha, J.)
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I LNJ AD (2012) Md. Habibur Rahman Bhuiyan and ors. Vs. Most.
Galman Begum and ors. (Md. Muzammel Hossain, C.J.)
113
taka 2 (two) lakh in erecting the shops in the case land. The
pre-emptor having filed the case after 8 (eight) years from the
date of transfer was not entitled to get any relief and the
pre-emption application was liable to be rejected.
34. During trial on behalf of the pre-emptor 4(four) witnesses
were examined. Of the 4(four) witnesses, P.W.I is the husband of
the pre-emptor. On behalf of contesting pre-emptee opposite party
No. 3, 6(six) witnesses were examined including himself. The
learned Assistant Judge by his order dated 17.06.1999 allowed the
pre-emption application on the clear finding that the pre-emptor
was an admitted co-sharer in the case holding; there was no defect
of party and the application was filed within 4 (four) months from
the date of knowledge of the transfer in question on 20th March,
1998 in the salish baithak wherein the seller opposite party
disclosed that he had sold the land to the father of the
pre-emptees.
35. Being aggrieved by and dissatisfied with the order passed by
the learned Assistant Judge, Araihazar, Narayanganj, the pre-emptee
opposite party No.3 filed Miscellaneous Appeal No.33 of 1999 before
the District Judge, Narayangonj and the learned Subordinate Judge
who heard the appeal by his judgment and order dated 29.10.2000
allowed the same and set aside the order passed by the learned
Assistant Judge holding that the pre-emption application was bad
for defect of party and was barred by limitation as the same was
filed after long 8 (eight) years from the date of the kabala under
pre-emption.
36. Against the judgment and order of the appellate Court, the
pre-emptor respondent filed Civil Revision No.5935 of 2000 before
the High Court Division. A single Bench of the High Court Division
after hearing the civil revision by judgment and order dated
25.01.2003 made the Rule absolute, set aside the judgment and
order of the appellate Court and restored those of the learned
Assistant Judge. Against the said judgment and order the pre-emptee
appellants filed Civil Petition for Leave to Appeal No. 556 of 2003
before this Division and leave was granted to consider the
submission of the learned Counsel for the appellants that
"there being no misreading o evidence, misconstruction of
document and non-consideration of any materials by the court of
appeal below, the High Court Division erred in setting aside the
judgment of the court of appeal below. He also submits that the
reasons given by the High Court Division for restoring the judgment
of the trial court is not tenable in law and the court of appeal
below having not committed any error of law resulting in an error
in the decision occasioning failure of justice, the High Court
Division erred in law in setting aside the said judgment. The
learned Counsel lastly submits that there being no dispute that
Abdul Malek Mollah and Elahi Bux were owners of the case plot and
there being nothing on record to show that their Jama was separated
and one of the heir of Abdul Malek Mollah having filed the instant
pre-emption petition it is mandatory on his/her part to implead
necessary parties under sub-section 2 of section 96 of the State
Acquisition and Tenancy Act and in reversing the finding of the
Court of appeal below on that point the High Court Division has not
taken into consideration the aforesaid provisions of law."
(M A Wahhab Miha, J.)
-
Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and
ors. (Md. Muzammel Hossain, C.J.) I LNJ AD (2012) 114
37. Mr. Mahbubey Alam, learned Counsel, appearing for the
appellants although initially tried to argue the point as to the
defect of party in the preemption application, subsequently he gave
up the point and mainly argued the point of limitation with all
force at his command supporting the judgment of the appellate Court
on the point.
38. Mr. Kamal ul Alam, learned Counsel, appearing for the
pre-emptor respondent, on the other hand, supported the finding
given by the learned Assistant Judge on the point of limitation as
endorsed by the High Court Division.
39. Since the learned Counsel for the appellants gave up the
point of defect of party, I do not consider it at all necessary to
dwell upon the same. However, it would suffice to say that
admittedly the case land along with other land belonged to 2 (two)
brothers, Abdul Malek Mol.lah and Elahi Box, the sons of late Karim
Box and as per the admitted case of both the parties by an amicable
partition the case land fell in the saham of Abdul Malek Mollah who
died leave behind a widow, one son (the seller opposite party No.4)
and two daughters, one being the pre-emptor and the other being
opposite party No.5 (respondent No.3 herein). Thus, Elahi Box and
his heirs had no subsisting interest in the case land. The Statute,
namely, section 96 of the State Acquisition and Tenancy Act, 1950
(the Act) has given, a co-sharer tenant of a holding the right of
prior purchase of a portion or share of a holding within 4(four)
months of the service of notice given under section 89 of the Act,
1950, or if no notice has been served under section 89 of the Act
within 4 (four) months of the date of knowledge of the transfer. In
the instant case, the pre-emptor is an admitted co-sharer in the
case holding. The appellate
Court also has not given any finding adverse to the pre-emptor's
right of co-sharership by inheritance in the case holding.
Therefore, the only question to be decided in this appeal is as to
whether the appellate Court was justified in rejecting the
pre-emption application on the ground of limitation and whether the
High Court Division was correct in setting aside the judgment and
order of the appellate Court and restoring those of the trial
Court.
40. From the leave granting order it is apparent that leave was
granted in a very wide compass to examine the submission made by
the learned Counsel for the appellants that there being no
misreading of evidence, misconstruction of document and
non-consideration of any materials by the Court of appeal below,
the High Court Division erred in setting aside the "judgment of the
Court of appeal", I consider it necessary to see the pleading of
the respective parties as well as the evidence adduced by them in
support of their respective cases on the question of
limitation.
41. As already stated hereinbefore, the specific case of the
pre-emptor was that she being the daughter of Abdul Malek Mollah,
the owner of the case land had been pursuing, the seller opposite
party who had been enjoying and possessing the case land along with
other land left by her parents to partition the same but he was not
giving her dueshare and eventually a salish baithak was called for
the purpose at the house of the seller on 20th. March, 1998 wherein
he, for the first time, disclosed that he had sold case land to
Sultanuddin Bhuiyan, the father of pre-emptees and then after
obtaining the certified copy of the kabala under pre-emption on
06.04.1998 came to know definitely that the
(M A Wahhab Miha, J.)
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I LNJ AD (2012) Md. Habibur Rahman Bhuiyan and ors. Vs. Most.
Galman Begum and ors. (Md. Muzammel Hossain, C.J.)
115
seller opposite party No.4 transferred the case land not to
Sultanuddin Bhuiyan but to his sons, pre-emptee opposite party
Nos.1-3 by a kabala registered on 06.06.1999 in the office of
Sub-registrar, Araihazar, Narayangonj being kabala No.2946 at a
price of TK.5,000.00. The kabala was registered under section 60 of
the Registration Act on 09.09.1999 and then filed the pre-emption
case in question on 27.05.1998 well ahead of the period of
limitation. The further specific case of the pre-emptor was that
before 20th of March, 1998 she had no knowledge about the transfer
of the case land. It was also the definite case of the pre-emptor
that no notice under 89 of the Act, 1950 was served upon her before
the transfer of the case land. As against the said .case of the
pre-emptor, the pre-emptee's case was that written notice was
served upon the pre-emptor before the transfer of the case land.
Further case of the pre-emptee was that the house of the
pre-emptor's husband is in the same village and she used to visit
her husband's house oft and often to look after her in-laws, so she
knew about the transfer in question. It was also the case of the
pre-emptee that after purchase of the case land in 1990 they had
been cultivating the case land for 4 (four) years and then in 1994
raised the land by bringing earth from Gazipura and Monoharer chak
by truck and then constructed 4 (four) shop rooms of which one is
two storied with tin roof and pucca bhiti and tin fencing and 4
(four) others are tin chhapra (one chala) and since then they have
been possessing the shop rooms by letting out the same to the
tenants.
42. Now let us see how far the parties could prove their
respective cases. Pre-emptor examined 4 (four) witnesses. Of them,
PW-1, Khandaker Mahmud Morshed is the husband of the pre-emptor and
he deposed on her
behalf. PW1 in his examination-in-chief categorically asserted
the case as to the date of knowledge of the pre-emptor on 20th of
March, 1998 about the transfer in question as well as the taking of
certified copy of the kabala on 06.04.1990 whichwas filed and
proved as exhibit-11. PW-1 further asserted that salish baithak
took place on the said date due to the fact that in spite of the
request by the pre-emptor to give her the share in the landed
property left by her parents, the seller was not giving her due
share. PW-1 further asserted that the case land was transferred
secretly. He denied the assertion of the pre-emptee that notice of
transfer was given to the pre-emptor. PW-1 further asserted that
Sultanuddin Bhuiyan used to cultivate the case land as bargader for
the last 40 (forty) years, that is, right from the time of Malek
Mollah in 1971 and after his death the pre-emptor became the owner,
the case land was also used to be cultivated by the bargader and
the seller opposite party used to give her crops. He further
asserted that the case land was not partitioned among the
co-sharers. In cross-examination, this PW categorically denied the
pre-emptee's case that the case land was filled up by bringing
earth from other place and then asserted that the case land was
raised by taking earth from the river. This PW categorically
asserted that it was a fact that shop rooms were erected in the
case land but those were erected after 20th of March,1998.He also
asserted that there are tenants in the case land, but after 20th of
March, 1998. This PW also denied the suggestion given to him on
behalf of the pre-emptee that Azad, son of Khandker Monjer Morshed,
the pre-emptor's elder brother-in-law did business in a shop of the
case land along with Khokon (OPW4). He denied the further
suggestion that no 'baithakh' took place
(M A Wahhab Miha, J.)
-
Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and
ors. (Md. Muzammel Hossain, C.J.) I LNJ AD (2012) 116
on 20th of March, 1998 and the seller opposite party was not
present in the baithak. PW1 further asserted that they knew that
the pre-emptees had been in possession of the case land as the
bargader. The pre-emptee by cross-examining PW1 could not at all
shake his testimony as to the knowledge of the transfer in question
having been disclosed by the seller opposite party for the first
time in the salish baithak held on 20th of March, 1998 for the
purpose of partitioning the land left behind by the parents of the
pre-emptor.
43. PW-2, Khandaker Monjer Morshed is the husband of opposite
party No.5, a co-sharer and sister of the pre-emptor. This PW in
his examination-in-chief stated that Abdul Malek used to cultivate
the case land through bargader Sultanuddin Bhuiyan, that is, the
father of pre emptees. He categorically stated that the property
left behind by late Malek Mollah was not partitioned. He himself
and his wife requested the seller opposite party No. 4 to partition
the land left behind by Malek Mollah but he did not do so and
eventually baithak was called on 20th of March, 1998 for the
purpose. Salish baithak was held in the house of opposite party
No.4 and when discussion started about the case land he disclosed
that he had transferred the same. This PW further asserted that
before 20th of March, 1998 he did not know about the transfer in
question. In cross-examination, this PW stated that he lived in the
same village and the case land is just 150 yards away to the west
of his house. He denied the suggestion of the pre-emptee that at
the time of selling the case land, the pre-emptor and her husband
were present and as they refused to purchase the case land, the
same was sold to the pre-emptees. This PW denied the further
suggestion that Sultanuddin Bhuiyan was not the bargader and that
the pre-emptees filled up
the land by spending TK.3,00,000.00. This PW stated in his
cross-examination to the effect " mZ b cwZc cvq 3 jvL UvKvi gvwZ
fivU Ki | 1995 mbi bvwjkx RwgZ `vKvb AvQ wKbv Rvwb bv | MZ 6 gvm
hver evwo hvwQ bv| bvwjkx RwgZ cwZciv MvUv wZbK Ni Zzj| fvovwUqvi
Ni KZ ermi hver Zv Rvwb bv| mZ bq ZidQvwb 1995 mb Ni fvov `q| Zviv
KZ ZvKv Ni fvov `q Rvwb bv| mZ bq cvq 2 j UvKv Kvib bq| 1995 mb|
Avgvi gZ 45/45 nvRvi UvKv LiP Ki cwZc Ni wbgvb Ki| Thus, from the
cross-examination of PW-2, it does appear that this PW at all
admitted the fact that the pre-emptees made development in the case
land in 1995 as found by the appellate Court. In cross-examination,
the PW further asserted the fact stated by him in his
examination-in-chief that he tried many a time to partition the
land left behind by Malek, but failed. He denied the suggestion of
the pre-emptees that no salish took place on 20.03.1998.
44. PW-3, Munshi Monir Uddin Ahmed, an independent witness
categorically stated in his examination-in-chief that Abdul Malek
Mollah died in 1971 leaving behind many properties including the
case land. The case land was not partitioned before and a baithak
took place at the house of the seller opposite party No. 4 on 20th
of March, 1998 about the case land. When the pre-emptor demanded
her share in the case land, the seller opposite party told that he
had transferred the case land to Sultan Bapari. Discussion also
took place about other properties. He further asserted that before
20th of March, 1998 he did not know about the sale of the case
land. He further stated to the effect bvwjkx RwgZ Ni `iRv AvQ| Ni
`iRv mg~n 20/3/98 Bs Gi ci| This PW also named the persons who were
present in the baithak as stated in the preemption application. In
cross-examination this PW
(M A Wahhab Miha, J.)
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I LNJ AD (2012) Md. Habibur Rahman Bhuiyan and ors. Vs. Most.
Galman Begum and ors. (Md. Muzammel Hossain, C.J.)
117
further asserted to the effect gvwU fivU Ni wbgvb Kvb ZvwiL Ki
Zv ejZ cvie bv Ze 20/|3/98 Bs ZvwiL Gi ci Ki| but unfortunately the
appellate Court found that though salish wascalled in writing but
no paper was filed in that respect. Thus, it is clear that this PW
in cross-examination re-asserted the statements as made by him in
his examination-in-chief about the salish baithak. He further
stated in cross-examination that Sultanuddin Bhuiyan and his sons
used to possess the case land for long, but as bargader. This PW
very stoutly denied the suggestion of the pre-emptee that he raised
the land and erected shop rooms in 1995. It would be better to
quote the relevant portion of the cross-examination of PW-3 which
is as follows:
mZ bq 20/3/98 Bs ZvwiL Gi gvwU fivU I Ni wbgvY wg_v | mZ bq 1995
Bs ZvwiL ch ZidQvwbMi Ni `Rvi KvR kl Ki| mZ bq 1990-1995 mb ch gvwU
fivU I Ni `iRv wbgvY Ki|
45. P.W.4, Eftekher Uddin Mollah, stated in his
examination-in-chief that late Abdul Malek Mollah had other land
except the case land and there was no partition of the lands left
behind by him amongst his heirs. This PW categorically stated that
he was present in the baithak which took place on 20.03.1998 at the
house of opposite party No.4 alongwith PW-2, Khandaker Monjur
Morshed, PW-3 Munsh Moniruddin Ahmed, Nazrul Islam, seller opposite
party No.4, his second wife and opposite party No.5 along with
others. He further stated that rooms were erected in the case land
after 20cn of March, 1998. In cross-examination this PW further
stated to the Effect gvwU fivU Ni wbgvb Kvb ZvwiL Ki Zv ejZ cvie bv
Ze 20/|3/98 Bs ZvwiL Gi ci Ki|
46. On behalf of the contesting pre-emptee, 6 witnesses were
examined. Of these OPW's,
OPW-1 is the pre-emptee No. 3. He asserted the case as made out
in the written objection. This OPW stated in his
examination-in-chief that after purchase, they had been cultivating
the case land for the first 4(four) years and then in 1995 filled
up the land and erected shop rooms therein spending TK.5,00,000.00.
He further stated that they erected 4 (four) rooms of which one was
du chala tin with pucca bhiti and they used to possess the same
through tenants. Azad, a son of the elder brother-in-law (son of
the elder brother of the pre-emptor's husband) of the pre-emptor
also did business in the case land as a tenant under. The house of
the pre-emptor and her husband is in the same village and she used
to visit the village 6/7 times in a year. The seller informed the
pre-emptor about the sale of the case land but she refused to
purchase the same. This OPW further stated that at the time of
transfer of the case land, notice was given to the pre-emptor. He
denied that salish took place on 20th of March, 1998 and then after
obtaining the certified copy of the kabala in question, the
pre-emptor came to know definitely about the transfer in question.
He further asserted that the case was filed after 8 (eight) years
from the date of transfer out of greed as the land was developed by
then. In cross-examination, this PW denied the suggestion that they
developed the case land and erected the structures on the case land
on 20.03.1998. He further stated that Avgvi bvwjkx mcw Lwi`i welq
gRniK RvbvB G hveZ bvwUk Gi Kwc Av`vjZ `vwLj Kwi bvB | ci ej bvwUk
nvwiq wMqQ|
47. OPW-2, Khoka Khandaker deposed that the pre-emptor and her
husband used to visit their house at the village 5/7 times in a
year. After purchase, the case land was raised. This OPW further
stated to the the effect 4/5 ermi c~e gvwU fivU Ki| There are
structures in the
(M A Wahhab Miha, J.)
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Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and
ors. (Md. Muzammel Hossain, C.J.) I LNJ AD (2012) 118
case land which have been let out to the tenants.He further
stated that he is a salishder of panchgram village and he knew
Baker Mollah (seller opposite partyNo.4). He could not say whether
any baithak took place in the house of opposite party No. 4. Had
there been any such baithak, the same would have come to his
knowledge. Thus, it is clear that this OPW did not specifically say
anything in which year development in the case land was done and
the shop rooms were erected. In cross-examination, this OPW denied
the suggestion that the work of raising the case land and erection
of the shop rooms were done after 20th of March, 1998 and then he
asserted that the work of filling up the land and erecting shop
rooms were done 5(five) years before
48. OPW-3, Abdur Razzak, deposed that the case land was
purchased 5/6 years before. Everybody of the village knew about the
purchase and the sale did not take place secretly. After purchase,
the purchaser used to plant seedlings for sometime and then filled
up the land by bringing earth by truck at the cost of taka 2/3
lakh. The work of earth filling was done 4(four) years before. In
cross examination, he stated that he was not a witness to the sale
deed and he was not present at the time of sale of the case land.
He denied the suggestion given by the pre-emptor that the shop
rooms in the case land were erected at a cost of taka 40/50
thousand after 20.03.1998. This OPW further stated that the pre-
emptees erected rooms and let out the same to the tenants and there
were 5 (five) tenants. This OPW contradicted OPW s 1 and 2 as to
the development of the case land and erection of shop rooms
therein.
49. OPW-4, Khokan Dewan, stated that he knew the case land which
is being possessed
by opposite party No.3. The case land was filled up by opposite
party No. 3, he has been possessing the same for 7/8 years.
Opposite party No .3 erected rooms in the case land and presently
possesses the same through tenants. He used to do business in a
shop in the case land by taking the same on rental basis along with
Azad khandaker, son of the elder brother-in-law of the pre-emptor
as his partner. He further stated that opposite party No. 3 filled
up the land by bringing earth by truck and in doing so he had to
spend TK.2/2.5 lakh and he also spent TK. 1.5 lakh for erecting the
rooms. In cross-examination, he stated that presently he works at
the colour shop of his maternal uncle. He had no written tenancy
agreement with OPW-3 and no receipt of the payment of rent as well.
There was no agreement to show that Azad Khandaker used to do
business with him jointly. However, he denied the suggestion given
by the pre-emptor that he was not tenant in the case land.
50. OPW-5 is Tota Miah. He deposed that opposite party No.3 had
been possessing the case land for 7/8 years. The case land was low
land and the same was filled up by bringing earth by truck through
him.A sum of taka 3/4 lakh were spent in filling the land. The
earth was brought from Gazipur and Monoharer chak. The cost of
bringing the earth was paid by opposite party No.3. He further
stated that after filling the land opposite party No. 3 erected
rooms at the cost of TK.2.5 lakh. There are 3 (three) shops in the
case land, one furniture shop, one saloon and one tea shop which
have been let out to the tenants. In cross-examination, this OPW
stated that he was a man of village Monoharer chak which was 2
kilometers away from his house. He further stated that he had no
truck of his own and he did not file any receipt of hiring truck.
He denied the suggestion that the rooms in
(M A Wahhab Miha, J.)
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I LNJ AD (2012) Md. Habibur Rahman Bhuiyan and ors. Vs. Most.
Galman Begum and ors. (Md. Muzammel Hossain, C.J.)
119
the case land were erected after 20.03.1998.
51. In cross examination he further stated that Gi cvk jvM c~e
w`K e cy b`x AvQ | mLvb _K gvwU fivU nqQ | (m wbzc wQj) ci ej Zv
mwZ bq. The demeanour of witness as recorded by the trail court
shows that he was a partisan witness and he did not tell the
truth.
52. OPW-6 is one Haridas . He deposed that he has furniture shop
in the case land and he has been doing his business there since
1995 by taking the same on rent at TK. 6, 000. 00 per year. In
cross- examination, he stated that he brings wood for furniture
from Araihazar and Narsingdi. The receipt for purchasing wood is
given from Narsingdi but he has not filed the same in Court. He
further stated that there was no tenancy agreement with the
opposite party No. 3.
53. These are the relevant evidence of the witnesses adduced by
the parties in the case land.
54. Sub-section (1) of section 96 of the Act has clearly
mandated that if a portion or share of a holding of a raiyat is
transferred then a co-sharer tenant of that holding may within 4
(four) months of the service of notice given under section 89 of
the Act or if no notice has been served under section 89 of the Act
within 4 (four) months of the date of knowledge of the transfer,
apply to the Court for the said portion or share to be transferred
to him. In this case, the pre-emptor categorically asserted in the
application for pre-emption that before transfer of the case land
no notice was served upon her either in writing or verbally. The
pre-emptor further asserted that the case land was transferred
secretly beyond her knowledge. On the other hand, the pre-emptee in
his written objection asserted that before purchasing the case
land, he served notice of
the transfer to the pre-emptor and the pre-emptor was aware
about the notice and the sale in question. Section 96(1) of the Act
has contemplated two situations as to the limitation for filing an
application for pre-emption, one within 4(four) months of the
service of the notice given under section 89 of the Act and the
other within 4 (four) months of the date of knowledge of the
transfer if no notice has been served under section 89 of the act.
When the pre emteein his written objection specifically pleaded
that notice of transfer was given to the pre-emptor onus was
squarely upon him to prove the same. Now let us see whether the
pre-emptee proved the said fact.
55. Pre-emptee-opposite party No. 3 examined himself as OPW1. He
in his examination in chief asserted that at the time of purchase
of the case land notice was given to the pre-emptor. The OPW
further asserted that the seller-opposite party informed the
pre-emptor about the sale but he refused to purchase the same. I
consider it better to quote the relevant portion of the evidence of
P.W.I in this respect weZv ZicQvwb bvwjkx mcw wewi mgq gRniK Rvbvq
| bvwjkx mcw ivLZ ev q A ^xKvi Ki| `iLvKvwibxK bvwUk `Iqv nq bvwjkx
mcw Lwi`i mgq bvwjkx mcwi `wY cvk Avgv`i mcw| But copy of such
notice was not filed in the Court. And in cross-examination this PW
stated to the effect Avgvi bvwjkx mcw Lwi`i welq gRniK RvbvB G hveZ
bvwUk Gi Kwc Av`vjZ `vwLj Kwi bvB | ci ej bvwUk nvwiq wMqQ| Thus it
is clear that notice of transfer under section 89 of the Act was
not served upon the pre- emptor and the contesting pre-emptee took
false plea in the written objection. Therefore, the case of the
pre-emptor that on coming to know about thetransfer in question in
the salish baithak
(M A Wahhab Miha, J.)
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Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and
ors. (Md. Muzammel Hossain, C.J.) I LNJ AD (2012) 120
held, on 20th of March, 1998 she obtained the certified copy of
the kabala in question on 06.04.1998 and then came to know
definitely about the transfer in question and then filed the case
on 27.05.1998, that is, well ahead of 4 (four) months from the date
of knowledge has to be considered in the light of the evidence
adduced by the parties. In this regard, I am not oblivious of the
onus of the pre-emptor to prove the Fact of knowledge as to the
sale in question as asserted by her in the pre-emption application
as well as by her husband as PW-1.
56. From the judgment of the trial Court, it appears that it
considered the evidence of the PWs and then believed the
pre-emptor's case of knowledge about the transfer in question on
20th of March, 1998 as disclosed by the seller opposite party in
the salish baithakheld on the said date.The trial Court found the
PWs trustworthy And no inconsistency in their evidence.The trial
Court Court did not find OPW1 trustworthy as he madecontradictory
statements in cross-examination from that of the
examination-in-chief. I considerit better to quote the relevant
portion of the finding of the trial Court about OPW-1 which is as
follows:
Aci w`K cwZci mvx bs 1 Zvi Revb ew`Z ej, Lwi`i c~e _KB
`iLvKvwibx Rvb| bvt mcw Lwi`i mgq, m Zvi Rivq x^Kvi Ki, Avgiv bvt
mcw Lwi`i welq gRniK RvbvB Ges G eve` bvwUk Gi Kwc Av`vjZ `vwL Kwi
bvB| ci ej bvwUk nvwiq wMqQ | G mvx Revbe`x I Riv ga mgmv LyR bv
cvIqvq I G mvx mv wekvm hvM bq|
57. The trial Court found that though OPW-2 in his
examination-in-chief stated that everybody knew about the purchase
and that the transfer in question was not made secretly and that
after purchase, the purchasers planted
seedlings for sometimes, in cross-examination, stated that he
was not present during the transfer and he also could not say
whether the people of the village knew about the transfer and
finally observed that this witness could not say whether everybody
knew about the transfer and then concluded by saying that from
analysis of the deposition of the witnesses it appeared that the
pre-emptor came to know about the trans-fer for the first time on
20.03.1998. However, the trial Court did not consider it necessary
to discuss the evidence of the other OPWs.
58. The appellate Court which is the last Court of fact
disbelieved the pre-emptor's case of salish baithak held on 20th of
March, 1998 on the ground that no document was filed as to the
proof of holding of salish on the said date completely forgetting
that neither in the application for pre-emption nor in the
deposition of PW1, any such case of written salish baithak was made
out. The other reason given by the appellate Court to disbelieve
the story of salish as deposed by PW-3, an independent witness is
that except him none of the other salishder deposed to the said
effect completely ignoring the evidence of PW-4 who categorically
deposed about the holding of salish on 20 of March, 1998 and the
further fact that he was present at the salish. PW-4 categorically
stated in his examination-in-chief that he was present in the
salish along with PWs 2 and 3. In this regard, the appellate Court
also failed to notice section 134 of the Evidence Act which has
clearly provided that no particular number of witnesses is
necessary to prove a fact. Thus, it appears to me that the
appellate Court totally misread as well as failed to consider the
material evidence on record and also misconceived the case of the
pre-emptor as made out in the pre-emption application in
(M A Wahhab Miha, J.)
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I LNJ AD (2012) Md. Habibur Rahman Bhuiyan and ors. Vs. Most.
Galman Begum and ors. (Md. Muzammel Hossain, C.J.)
121
arriving at the finding of knowledge of the pre-emptor as to the
transfer in question. It further appears that the appellate Court
disbelieved the evidence of PW's 1,2 and 4 on the ground that they
were the own men of the pre-emptor. Such reason given by the
appellate Court in disbelieving PW s 1, 2 and 3 is absolutely
fallacious and contrary to the settled principle of law that the
testimony of a witness cannot be disbelieved only on the ground of
relationship or closeness if his evidence is otherwise found to be
true and withstand the test of cross-examination. In this regard,
reference may be made to the cases of Samad Sikder @ Somed
Sikder-vs- State reported in 50 DLR(AD)24, Nowbul Alam and
others-Vs- State reported in 45DLR(AD) 140, and Anwara
Khatun-Vs-Md. Abdul Hye and others reported in 4BLC(AD) 14.
59. In support of the case of knowledge about the transfer in
question for the first time in the salish baithak held on 20th of
March, 1998 the pre-emptor examined 3(three) witnesses in addition
to her husband as PWl. The evidence of the witnesses to the above
effect could not be shaken in cross-examination then what more the
pre-emptor could do to prove the knowledge within the meaning of
subsection (1) of section 96 of the Act. So, the appellate Court
was absolutely in error when it observed that the pre-emptor could
not prove that she did not know about the transfer in question
before 20th of March, 1988. it further appears that the appellate
court in a circuitus and negative way disbelieved the pre emptors
case of knowledge about the transfer in question on 20th of march,
1988 and the development made in the case land including erection
of the shops therein after the said date by posing a question why
she did not pray for any injunction after filing of the pre-emption
application on 27.05.1998
if the pre-emptees undertook development work in the case land
after 20th of March, 1998 in complete disregard to the factual
position that the gap between 20th of March, 1998 upto 27 May, 1998
was quite enough to undertake the nature of the development works
and erection of the structures on the case land as claimed by the
pre-emptees. The appellate Court also failed to consider in its
proper perspective that even if it is conceded that the pre-emptees
undertook development work after the filing of the pre-emption case
and the pre-emptor failed to take any step by way of filing an
application to injunct them from undertaking such development work
that does not debar the pre-emptor to pray for pre-emption and for
such failure no adverse presumpti can be drawn against her. In this
regard, law is very much clear which is that the pre-emptees shall
be entitled to get development cost till getting notice of the
pre-emption application
60. it is very much striking to state that the appellate Court
itself disbelieved the pre-emptees case of spending TK. 5,00,000.00
for the development of the case land including erection of the
structures thereon on the ground that he failed to file any
documentary evidence in that respect and found that the pre-emptee
spent TK. 1,50,000.00 only. From the appellate Court judgment, it
further appears that it proceeded with a prior view that since the
pre-emption application was filed after 8 (eight) years, the same
was barred by limitation ignoring the positive evidence on record
adduced by the pre-emptor that she had no knowledge about the
transfer in question prior to 20th of March, 1998 and whatever
development was done in the case land was done after the said date.
The appellate Court also failed to consider the fact that the
pre-emptee took specific plea in the
(M A Wahhab Miha, J.)
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Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and
ors. (Md. Muzammel Hossain, C.J.) I LNJ AD (2012) 122
written objection as well as in Court while he deposed as OPW-1
that notice under section 89 of the Act was served upon the
pre-emptor but failed to prove the said fact which shows that the
pre-emptee took false plea in his pleading to defeat the case of
the pre-emptor and for this reason the appellate Court ought to
have drawn an adverse presumption against him. It is true that the
pre-emptee developed the case land and erected some shop rooms
therein but the pre-emptor specifically stated that those were done
after the disclosure of the fact of transfer on 20tn of March,
1998.
61. In sifting the evidence of the PWs in arriving at the
finding of knowledge of the pre-emptor about the transfer in
question, the appellate Court totally failed to consider the
pertinent fact that the seller-opposite party No.4 is none else,
but his full brother and the father of the pre-emptees Sultanuddin
Bhuiyan used to cultivate the case land as bargadar during the life
time of her father and then under them and the seller used to give
her the share of the crops, so even if the pre-emptee was in
possession of the case land till 20th of March, 1998 the pre-emptor
had no scope to know about the transfer in question.
62. In the face of positive evidence adduced by the pre-emptor
as to knowledge about the transfer in question as discussed above
the pre-emptee was obliged to examine witnesses who as per his own
case participated in filling up the case land and erecting shop
rooms therein after 1994 and before 20th March, 1998. But the
pre-emptee failed to examine any such witness in the case. To
specify, the pre-emptee did not examine the truck owner or the
truck driver in support of his case that he filled, up the case
land by bringing earth in truck from Gazipur and Monoharer chak.
The pre-emptee examined
one Tota Mia as OPW-5 to prove that earth was brought from
Gazipur and Monoharer chak by truck at the cost of taka 3/4 lakh,
but in cross-examination he stated that his house was two
kilometers away from the case land and that he had no truck and did
not submit any receipt of truck fare. The pre-emptee did not
examine any one who erected the shop rooms in the case land. The
pre-emptee examined Haridas as OPW-6 who is his alleged tenant in
the case land since 1995. This OPW stated in his deposition that he
had a furniture shop in the case land since 1995 but in support of
his tenancy no agreement was produced. Although OPW-6 stated that
he has been doing the business in the case land since 1995 by
paying rent of TK.6,000.00 per year, no rent receipt was produced.
All these categorically disproved the case of the contesting
pre-emptee that he undertook development work in the case land in
1994/1995 rather supported the case of the pre-emptor that the
development in the case land was done and shop rooms were erected
after 20th of March, 1998.
63. I am of the view that by examining 4 (four) witnesses in
support of the case of knowledge of the transfer in question on
20th of March, 1998 the pre-emptor discharged her onus and then the
onus shifted upon the contesting pre-emptee that he developed the
case land in 1994/1995 and then erected the shop rooms therein, but
he failed to discharge the said onus. The appellate Court did not
at all consider this legal aspect of the case.
64. From the impugned judgment of the High Court Division, it
appears that the High Court Division, in fact, did not discuss and
consider the evidence on record on the question of limitation on
the view that the question of limitation "hinges on the credibility
of the witnesses and the trial Court
(M A Wahhab Miha, J.)
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I LNJ AD (2012) Md. Habibur Rahman Bhuiyan and ors. Vs. Most.
Galman Begum and ors. (Md. Muzammel Hossain, C.J.)
123
had the advantage to see the demeanor of the witnesses and as
such, its decision in respect of such finding should prevail and
accordingly, endorsed the finding of the trial Court on the
question of limitation. In this regard, the High Court Division
further observed that "The Court of appeal below, on the other
hand, did not have the advantage to see the demeanor of the
witnesses and as such the finding arrived at by the Court of appeal
below as to limitation cannot get preference.
65. In view of the discussions made hereinabove, I do not find
anything wrong with the view taken by the High Court Division.
Since the trial Court did not consider the question of improvement
of the pre-emptees and the appellate Court found the same at
TK.1,50,000.00, the High Court Division considering the admission
of the pre-emptor that the pre-emptees made improvement in the case
land at the cost of taka 40,000.00/50,000.00 fixed the development
cost at TK.75,000.00. I find the assessment of cost reasonable and
based on evidence on record particularly in view of the admitted
fact that no documentary evidence was produced in support of the
development cost
66. It is true that the judgment of High Court Division is not
that happy as it should have been, but I do not find any error in
the ultimate decision arrived at by the High Court Division in
making the Rule absolute restoring those of the trial Court
considering the judgments of the two Courts below.
67. In conclusion, I am of the view that the appellate Court
rejected the pre-emption application on total misreading,
non-consideration of the material evidence of the PW s and the
OPW's, with reference to the pleading of the parties as well as the
settled principle of law in sifting and weighing the evidence of a
witness. I would dismiss the appeal without any order as to
cost.
Sd/- M.A. Wahhab Miah, J.
68. Nazmun Ara Sultana, J: I have gone through the separate
judgments prepared by my learned brother, Surendra Kumar Sinha, J.
and my learned brother Md. Abdul Wahhab Miah, J. I agree with the
judgment of brother Surendra Kumar Sinha, J.
Sd/- N. A. Sultana, J.
69. Muhammad Imman Ali, J: I have gone through the judgments
delivered by my learned brothers Surendra Kumar Sinha, J. and Md.
Abdul Wahhab Miah, J. I agree with reasons given and the decision
arrived at by my learned brother Mr. Md. Abdul Wahhab Miah, J. I
would, therefore, dismiss the appeal without any order as to
costs.
Sd/- M. Imman Ali, J.
70. Muhammad Mamtaz Uddin Ahmed, J: I have gone through the
separate judgments prepared by my learned brother, Surendra Kumar
Sinha,J. and my learned brother, Md. Abdul Wahhab Miah, J. I agree
with the judgment of brother Surendra Kumar Sinha, J.
Sd/- Md. Mamtaz Uddin Ahmed.
71. Md. Shamsul Huda, J: I have gone through the separate
judgments prepared by my learned brother, Surendra Kumar Sinha, J.
and my learned brother, Md. Abdul Wahhab Miah, J. I agree with the
judgment passed by my learned brother, Surendra Kumar Sinha, J.
Sd/- Md. Shamsul Huda
COURTS ORDER