Appellate Division Cases
(Civil)
PARTIES
Abdul Wazed Sharif…………… Appellant.
-Vs-
Shudhir Ranjan Biswas and others………………… Respondents.
Md. Ruhul Amin J
Md. Tafazzul Islam J
Judgment Dated: 15th March 2007
The State Acquisition & Tenancy Act, 1950, Section 96
The Evidence Act, Section 79,77, 65(e)
That the onus was upon the preemptee to prove the genuineness of the three registered sale deeds and the certified copies of those registered sale deeds being admissible in evidence under sections 65(e) & (f) and sub-section 2 of the Section 74 read with Section 77 of the Evidence Act the preemptors were entitled to pre-emption……….. (4)
The question of admissibility of Ext.A, B and C did not arise at all in as much the sale deeds were executed and registered during the pendency of the pre-emption case and the appellate court, the final court of facts, having found that the sale deeds were collusively created in the name of fictions persons reversed the finding of the trial court to the effect that the pre-emptors having already exhausted their right, title and interest in the case holding by those sale deeds, they had no right for pre-emption …………….(7)
A.K.M. Shahidul Hug, Advocate-on-Record …………………For the Appellant
Ataul Huq, Advocate-on—Record…………………… For Respondent Nos. 1&2
Respondent Nos. 3-6…………………………. Not represented.
Civil Appeal No. 576 Of 2001
(From the judgment and order dated 19.6.1997 passed by the High Court Division in Civil Revision No. 74 of 1988)
JUDGMENT
Md. Tafazzul Islam J: This appeal, by leave, arises out of the judgment and order
dated 19.6.97 of the High Court Division passed in Civil Revision No. 74 of 1988
discharging the Rule obtained against the judgment and order dated 7.1.88 of the
learned District Judge, Gopalganj, passed in Miscellaneous Appeal No. 37 of 1989
reversing those of dated 17.9.1985 of the Munsif (now Assistant Judge), Sadar, Gopalgonj passed in Miscellaneous (Preemption) Case No. 195 of 1976 dismissing
the case.
2. The pre-emptor respondent Nos. 1 and 2 filed the above case under section 96 of
the State Acquisition & Tenancy Act, 1950 for pre-emption of the case land on the averments that the appellant and his brother Abdus Samad Sharif entered into a contract
on 29.12.1963 with the respondent Nos.3 and 4 as well as the father of the respondent No.5 for purchase of the case land at a consideration of Tk.5000/-and then, in pursuant to a decree dated 28.8.73 in a suit for specific performance of contract, obtained a kabala with respect to the case land which was registered on 16.9.73 through Court; the preemptee-appellant and his brother are strangers to the case land and though the preemptor-respondent Nos. 1 and 2 are co-shares by inheritance no notice was served upon them and they also had no knowledge of the above transfer till later part of Agrahayan, 1383 B.S. when he for the first time came to know about the above transfer and then he, after obtaining the certified copy of the kabala on 20.12.76, filed the case for preemption.
3. The pre-emptee appellant contested the above case and filed written objection stating that the case is not maintainable, the preemptors having exhausted their subsisting interest in the case jama by different transfers had no longer any right for preemption of the case land as co sharer and further after purchasing the property the preemptee developed the case land by felling earth at the cost of Tk. 15000/-.
4. The learned Munsif (now Assistant Judge) on consideration of the evidence and also three certified copies of the registered sale deeds, Exbt. A, B and C found that the preemptors exhausted their right, title and interest in the case holding and accordingly dismissed the case. On appeal the learned District Judge reversed the above judgment and order and granted preemption holding that the sale deeds, on which the pre-emptee relied were created by them collusively showing transfers in favour of some fictitious persons. Then the pre-emptee moved the High Court Division and obtained Rule and after hearing,
the High Court Division discharged the Rule holding that the onus was upon the preemptee to prove the genuineness of the three registered sale deeds and the certified
copies of those registered sale deeds being admissible in evidence under sections 65(c) & (f) and sub-section 2 of the Section 74 read with Section 77 of the Evidence Act the preemptors were entitled to pre-emption.
5. Leave was granted on the submissions that the High Court Division committed error of law in placing the onus of proof on the pre-emptee appellant to prove that the said exhibits A, B and C, the certified copy of the registered sale deeds as genuine ignoring the provision of section 79 of the Evidence Act and that the findings of the High Court Division as well as the lower appellate Court on those three registered deeds were beyond the scope of the pre-emption case and onus was wrongly placed on the pre-emptee appellant.
6. The learned advocate-on-record for the pre-emptee appellant submitted that the High Court Division failed to consider that the premptor respondent Nos. 1 and 2 failed to produce any documentary evidence in the form of rent receipts or any other document of title or even adduced any oral evidence to show that at the time of filing pre-emption they were co-sharers of the case holding, the High Court Division in utter disregard of the provisions of section 65(e) and (f), subsection 2 of section 74 and section 77 of the
Evidence Act threw the onus on the preemptee appellant to prove that three registered
sale deeds, were genuine and the High Court Division also fell in error in not taking into consideration the illustrious case of Gangamoye vs. Troiluckhya Nath Choudhury and other, reported in 35 Indian Appeal (Privy Council) 60 and similar other decisions in this regard including the case of Abdur Rahman vs. Abdur Rahim reported in 35 DLR 132 and the High Court Division also fell in error in not holding that the possession of the preemptors in a small tin hut was on the basis of licence granted by the pre-emptee
appellant for a temporary period on compassionate ground.
7. The learned Advocate-on-Record for the respondent submitted that the question
of admissibility of Ext. A, B and C did not arise at all in as much the sale deeds were
executed and registered during the pendency of the pre-emption case and the appellate court, the final court of facts, having found that the sale deeds were collusively created in the name of fictions persons reversed the finding of the trial court to the effect that the pre-emptors having already exhausted their right, title and interest in the case holding by those sale deeds, they had no right for pre-emption.
8. As it appears the High Court Division found that the trial court, without determining the validity and genuineness of the disputed sale deeds, of which exhibits-A, B and C, are the certified copies, held that the pre-emptor respondent Nos. 1 and 2 having transferred their entire share in the case khatian exhausted their right title and interest in the case khatian and the trial court failed to notice that exhibits A, B and C came from the possession of the pre-emptee and the said sale deeds did not support the purchases of the land in the case khatian from the pre-emptors and the appellate Court, on the other hand, upon assessment of the evidence on record and adverting to the findings of the trial Court
as to the genuineness of exhibits of the three sale deeds held that the pre-emptee though filed those but failed to bring the purchasers of those sale deeds to prove those sale deeds and further the Sale Deed No.2376, is found to have been registered in the Sub-register’s office at Kashiani but the land described in the schedule of exhibit is situated within the jurisdiction of Sub-registrar’s Offices Gopalganj Sadar and further the pre-emptee in his written objection had admitted that the pre-emptors are still in possession of the case land
as they have been living in Plot No.3865 and the pre-emptee of the case land collusively
created sale deeds in the name of fictitious persons during the pendency of the pre-mption case.
9. We find that in the facts and circumstances of the instant case the principle laid down in the decision reported in 33 Indian Appeal (P.C) which was followed in the decision reported in 35 DLR 33 are not applicable in the present case.
10. Accordingly we are of the view that the High Court Division on consideration of the materials on record arrived at a correct decision. The learned Advocate-on-Record could not point at any illegality or infirmity in the decision of the High Court Division and so call for any interference.
11. Accordingly the appeal is dismissed.
12. There is no order as to costs.
Source : V ADC (2008), 108