october 2012

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.

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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.)


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.)


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.)


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.)


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.)


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.)


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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.)


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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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.)


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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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.)


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



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."



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



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



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



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



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



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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| ìLvKvwibxK bvwUk Ìqv nq bvwjkx mcw Lwiì mgq bvwjkx mcwi `wY cvk Avgvì 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 Lwiì 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



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, Lwiì c~e _KB ìLvKvwibx Rvb| bvt mcw Lwiì mgq, m Zvi Rivq x^Kvi Ki, Avgiv bvt mcw Lwiì 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



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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



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



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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

october 2012

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