Md. Tofazzal Haq Chowdhury Vs. Rajaberanessa and others

Appellate Division Cases

(Civil)

PARTIES

Md. Tofazzal Haq Chowdhury …………….Appellant

-VS-

Rajaberanessa and others ………………….Respondents

JUSTICE

Syed J.R. Mudassir Husain CJ

Mohammad Fazlul Karim J

Amirul Kabir Chowdhury J

JUDGEMENT DATE: 25th January 2006

“The learned Counsel appearing on behalf of the leave petitioner contends that the

Single Bench of the High Court Division committed error of law in not holding that pre-emptor petitioner No.l is estopped by her own conduct as she herself negotiated the sale of the suit land to the leave petitioner, as such being aware of the transaction she cannot claim pre-emption of the disputed land. In.such view of the matter the pre-emption case is barred by principle of waiver, acquiescence and estoppel. The learned Counsel for the petitioner having taken an additional ground submitted that admittedly the fact of improvement of the case land being done by the pre-emptee petitioner with his money has been proved evidence and this has not been considered by the High Court Division and thereby committed error of law resulting in an error in the decision causing failure of justice and as such the impugned judgment of the High Court Division can not be sustained.” ………(5)

The appellant pre-emptee made improvement of the case land by spending the alleged amount most when the order of status quo was no substance and the amount spent on development account could not at all be denied to the appellant ………(11)

Civil Appeal No. 143 of 2002 (From the judgment and order dated 17th August 2000 passed by the High Court Division in Civil Revision No. 431 of 1994)

Khandker Mahbubuddin Ahmed, Senior Advocate, (Nikilash Datta, Advocate with him), instructed by Md. Nawab AH, Advocateon-Record ……….For the Appellant

Shafique Ahmed, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record………………..For Respondent Nos. 1-3

Respondent Nos. 4-8…………… Not represented.

JUDGMENT

1. Mohammad Fazlul Karim J : This appeal by leave is directed against the judgment and order dated 17.8.2000 passed by the High Court Division in Civil Revision No. 431 of 1984 discharging the rule issued against those dated 11.10.1993 of the Additional District Judge, 4th Court, Comilla in Miscellaneous Appeal No. 20 of 1992 allowing the appeal setting aside those dated 13.01.1992 rejecting the pre-emption case No. 16 of 1990.

2. The respondent Nos. 1-3 (pre-emptors) filed the aforesaid pre-emption case to preempt the case land measuring .18 decimals of land impleading the appellant (purchaser), respondent Nos. 4 and 5 (vendors) and others as co-sharer-respondents stating, inter-alia, that they are co-sharers in the disputed jote by inheritance along with others. The respondent No.l had no good relationship with respondent Nos. 4 and 5 out of family feud and the pre-emptor respondent No.l came to learn that the said respondent Nos. 4 and 5 (vendor opposite party Nos.2 and 3 of the pre-emptor case) sold out some properties from the case jote in the month of Powsh 1396 B.S. corresponding to January 1990 without notice. That, thereafter, the respondent No. 1 obtained certified copy of the Kabala and learnt for the first time on 13.1.1991 that the vendor-respondent Nos. 4 and 5 (vendor 2 and 3 of the pre-emption case) sold out the case land on 19.12.1987 to the leave petitioner by a registered deed collusively at a consideration of Tk. 30,000/- without giving any notice to the pre-emptor respondent No.l, a Pardanishin lady.

3. The appellant as purchaser contested the case filing the written objection stating, inter alia, that the case is not maintainable because the pre-emptor and her sons are close neighbors of the respondent No.l pre-emptor and the pre-emptor the respondent No. 1 herself mediated the sale of case land. That thereafter the pre-emptee agreed to purchase the same. The final talk of sale was held in the house of the pre-emptor respondent No.l and the other respondents were also present at the time of said transaction. That it was further contended that the consideration money was received by the respondent-pre-emptor petitioner No.l and spent money for her minor sons, the preemptor-petitioner Nos. 2 and 3 who were then students. The respondent No.l also spent a portion of consideration money for construction of a tin. shed building and also for construction of a path way.

4. The case was dismissed and on appeal the same was allowed. The appellant unsuccessfully moved the High Court Division.

5. Leave was granted to consider: “The learned Counsel appearing on behalf of the leave petitioner contends that the Single Bench of the High Court Division committed error of law in not holding that pre-emptor petitioner No.l is estopped by her own conduct as she herself negotiated the sale of the suit land to the leave petitioner, as such being aware of the transaction she cannot claim pre-emption of the disputed land. In such view of the matter the pre-emption case is barred by principle of waiver, acquiescence and estoppel.

The learned Counsel for the petitioner having taken an additional ground submitted that admittedly the fact of improvement of the case land being done by the pre-emptee petitioner with his money has been proved evidence and this has not been considered by the High Court Division and thereby committed error of law resulting in an error in the decision causing failure of justice and as such the impugned judgment of the High

Court Division can not be sustained.”

6. At the hearing of the appeal, Mr. Khandker Mahbubddin Ahmed, the learned Counsel appearing for the appellant submits only one point that in view of the evidence as to improvement of the case land done by the preemptee appellant with his money to the knowledge of pre-emptor which has been proved by evidence on record that the appellant has invested Tk. 4,75,000/- and the respondent has also admitted that the appellant has invested Taka thirty or forty thousand for development of the land and that the appellant has also filed supplementary affidavit showing investment of Tk. 15,00,000/making two storied building on the case land, that High Court Division erred in law in not allowing the investment cost to the appellant while decreeing the case.

7. Mr. Shafique Ahmed, the learned Counsel appearing for the respondent has submitted with reference to supplementary affidavit that the alleged investment by the appellant was in disobedience to the order of status quo passed and that the said investment was made after the case was decreed in favour of the respondent continuing upto 2004, the appellant is not entitled to the said amount as a development cost which he has allegedly done to his volition.

8. It appears that the appellant deposing Court has asserted to have spent Tk. 1,25,000/- for earth cutting and Tk. 4,50,000/- for construction of the building on the case land whereas the respondent has asserted that they have spent only Taka thirty or forty thousand for development of the land.

9. The supplementary affidavit asserted that the appellant has spent the amount in construction of the two storied building mostly after the order of status quo and during the pendency of the appeal and the revision before the High Court Division.

10. It is on record that the appellant at the cost of Tk.20,000/- raised 15 decimals of land upto the height of homestead, constructed a path way covering rest .5 decimals in the year 1987, constructed a dochala tin shed by raising the Bhiti at the cost of Tk. 1 lac, pucca sanitary latrine and a pucca bath tank at the cost of Tk. 50,000/- in 1988 and started construction of a one storied building consisting of six rooms with 2 sanitary latrines in 1990 and completed the same in 1991.

11. The appellant pre-emptee made improvement of the case land by spending the alleged amount most when the order of status quo was no substance and the amount spent on development account could not at all be denied to the appellant.

12. In view of the above, ends of justice would be best served if the appellant is given an amount of Tk. 5 lac only on development account to be paid within 6 months from the dated of the receipt of the copy of the judgment by the appellant with proper intimation to the respondents and in case of future the miscellaneous case shall be dismissed.

13. This appeal is accordingly partly allowed in the aforesaid terms without any order as to costs.

Ed.

Source: IV ADC (2007), 190

Disclaimer:

The information contains in this web-site is prepared for educational purpose. This site may be used by the students, faculties, independent learners and the learned advocates of all over the world. Researchers all over the world have the access to upload their writes up in this site. In consideration of the people’s participation in the Web Page, the individual, group, organization, business, spectator, or other, does hereby release and forever discharge the Lawyers & Jurists, and its officers, board, and employees, jointly and severally from any and all actions, causes of actions, claims and demands for, upon or by reason of any damage, loss or injury, which hereafter may be sustained by participating their work in the Web Page. This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist.  The provisions of any state’s law providing substance that releases shall not extend to claims, demands, injuries, or damages which are known or unsuspected to exist at this time, to the person executing such release, are hereby expressly waived. However the Lawyers & Jurists makes no warranty expressed or implied or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information, apparatus, product or process disclosed or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product process or service by trade name, trade mark, manufacturer or otherwise, does not necessarily constitute or imply its endorsement, recommendation or favouring by the Lawyers & Jurists. The views and opinions of the authors expressed in the Web site do not necessarily state or reflect those of the Lawyers & Jurists. Above all, if there is any complaint drop by any independent user to the admin for any contents of this site, the Lawyers & Jurists would remove this immediately from its site.