Alfazuddin Mollah being dead his heirs l(a) Mizanur Rahman Mollah Vs. Md. Almas chokder

Appellate Division Cases

(Civil)

PARTIES

Alfazuddin Mollah being dead his heirs l(a) Mizanur Rahman Mollah and other… …………Appellants

-vs-

Md. Almas chokder and another………………………………Respondent

JUSTICE

Mainour Reza Chowdhury. J

Syed J. R Mudassir Husain. J

JUDGEMENT DATE: 16th March, 2002

The State Acquisition and Tenancy Act, 1950. Clause 10(b) of Section 96.

Code of Civil Procedure 1908. Order 7 Rule 11.

In this case it has been specifically alleged that in order to defeat the pre emption the deed in question has been shown as deed of exchange but actually the transaction was out a sale we are of the view that when the nature of transaction become doubtful on the specific allegation being made out by the appellant pre emptor then for the interest of justice matter is required to be tested by adducing evidence in the trial court in order to ascertain the nature of transaction and to decide the case properly by way of interpreting the document in question……………………….. (10)

Civil Appeal No. 51 of 1998 (From the Judgment and order dated 11-4-1998 passed by the High Court Division in Civil Revision No. 481 of 1992).

Abdul Qauyum, Advocate , instructed by Md. Aftab Husain, Advocate-on-Record ……….. For the Appellants.

Mrs. AzraAli, Advocate-on-Record. ………………For the respondents.

JUDGMENT

1. Sayeed J. R. Mudassir Husain, J : – This appeal, by way of granting leave, is decided

against the judgment and order dated 11-4-1994 passed by a Single Bench of the High court Division in Civil Revision 481 of 1992 making the Rule absolute upon setting aside the order dated 2.2.1992 passed by the Teamed Assistant Judge, Tongibari Upazilla. District Munshigonj in Miscellaneous Case No. 11 of 1991 rejecting the application of the per-emptee under order 7 Rule 11 of the Code of Civil Procedure.

2. The late Alfazuddin Mullah, the predecessor of the present appellants as co sharers,

filed the aforesaid miscellaneous case under Section 96 of the State Acquisition and Tenancy Act, 1950 against the pre-emptee respondents stating that the vendor, kazi Abdur Rashid, respondent No.2, had sold some land to Mohammad Almas Chokdar, respondent No. 1 on 11-8-1991 by an exchange deed on the allegation that the said transfer was in fact a sale and not an exchange and it was alleged that the transaction was shown as exchange in order to defeat the claim of pre-emption.

3. During the pendency of the said preemption proceeding , the purchase respondent

No. 1 (pre emptee) filed an application “under order 7 Rule 11 of the code of Civil procedure for out of right rejection of the pre emption proceeding on the peek that it was barred by law in as much as the transaction being an exchange was not pro emptable under Clause 10(b) of Section 96 of the said Act.

4. The learned Assistant Judge by his judgment and order dated as aforesaid did not accept the said plea and thereby rejected the application of the pre emptee respondent No.l on a finding that whether the deed of exchange is a real one can be considered only upon evidence to be adduced.

5. Against the said order of rejection, the pre emptee respondent No.l preferred civil

Revision before the High Court Division and the learned Single judge made the Rule absolute upon setting aside the aforesaid order of the learned Assistant Judge and rejecting the aforesaid Miscellaneous Case for pre emption holding that such question can not be gone into in the pre emption proceeding.

6. leave was granted to consider as to whether the deed of exchange is in fact a deed

of sale can be gone into in the pre emption proceeding on the andealogy that question of benami transaction can not be gone into in the pre emption proceeding.

7. Mr. Abduil Quyyum, the learned Counsel appearing for the appellants, argued that the

High Court Division committed error or law in finding that in a pre emption proceeding the real nature of the transaction can not be gone into and decided that the application of the pre emptee under Order 7 Rule 11 Code of Civil Procedure without allowing the parties to go an trial upon the facts alleged*in the application because of the fact that in the application for pre emption it was specifically alleged that deed of exchange was actually deed of sale and the transfer was done through incontravance of a deed of exchange only to avoid the pre emption

8. Mrs. Azra AH, Advocate-on Record, on the other hand contended that the High Court

Division rightly set aside the order of the learned Assistant Judge in rejecting the application under Order 7 Rule 11 with a finding that in a pre emption proceeding the actual nature of transaction can not be gone into and rightly decided, the case and as such the impugned order of the High Court Division does not suffer from any legal infirmity.

9. The moot question in this appeal is whether the deed under challenge is a deed of

exchange or sale, can be gone into in the pre emption proceeding. It is true that a deed of

exchange is not pre-emptable.

10. In this case it has been specifically alleged that in order to defeat the pre emption

the deed in question has been shown as deed of exchange but actually the transaction was out a sale we are of the view that when the nature of transaction become doubtful on the specific allegation being made out by the appellant pre emptor then for the interest of justice matter is required to be tested by adducing evidence in the trial court in order to ascertain the nature of transaction and to decide the case properly by way of interpreting the document in question.

11. The High Court Division without considering the aforesaid aspect of the case, committed error of law resulting in error in decision causing failure of justice having misdirected itself decided case under misconception of law and such the impugned judgment is liable to be set aside, we have heard the submissions of the learned lawyers of both sided and read the decisions as referred to by the learned Single Judge of the High Court Division. Having regarded to our above discussion and in the facts and circumstances of the case, the impugned judgment of the High Court Division can not be sustained and we set aside the judgment of the High Court Division.

12. In the result, the appeal is allowed and the learned Assistant Judge is directed to proceed with the pre emption proceeding in accordance with law .

Ed

Source: I ADC (2004), 254

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