Humayun Kabir Khan Vs. Md. Nurul Haque & others

Appellate Division Cases

(Civil)

PARTIES

Humayun Kabir Khan ……………….Appellant

-Vs-

Md. Nurul Haque & others ……………….Respondents

JUSTICE

Md. Ruhul Amin J

M.M. Ruhul Amin J

JUDGEMENT DATE: 28th November 2006

After purchase the pre-emptee entered into case land within the definite and clear knowledge of the pre-emptor and the preemptee purchased the case land within the knowledge of the pre-emptor and his brother Mozammel Huq and other persons of the locality. So the case of the pre-emptor is barred by limitation ………(3)

Pre-emptor had the knowledge of the purchase by the pre-emptee ………….(5)

The pre-emptor claims to have derived his knowledge about the kabala in question from his full brother Mozammel Huq P.W.2 who derived his knowledge of the kabala from one Abdul Goni on 2nd Jaistha 1388 B.S. but this Abdul Gani was not examined in the case. Therefore, it appears that the pre-emptor has failed to prove that he derived his knowledge about the kabala sought to be pre-empted on 2nd Jaistha, 1388 B.S …………….(8)

Civil Appeal No. 61 of 2002. (From the judgment and order dated 25.05.1998 passed by the High Court Division in Civil Revision No.1233 of 1996.)

Hurunur Rashid, Advocate instructed by Md. NawabAH, Advocate-on-Record …………..For the Appellant

Hasan Faiz Siddiqui, Advocate instructed by Aftab Hossain, Advocate-on- Record ………….  For Respondent No. 1

Respondent Nos. 2-18………………Not represented.

JUDGMENT

1. M.M. Ruhul Amin J : This appeal by leave is directed against the judgment and order dated 25.05.1998 passed by a Single Bench of the High Court Division in Civil Revision No. 1233 of 1996 discharging the Rule.

2. Short facts are that the respondent-preemptor filed the Miscellaneous Case (Preemption) No.44 of 1987 in the Court of Assistant Judge, Bhandaria, Pirojpur seeking pre-emption of the case land stating, inter alia, that Hara Kumar Debnath was a co-sharer in Khatian No. 1533. He transferred his share to respondent No.2 by a deed of gift. The respondent No.2 transferred the case land to the pre-emptee by kabala dated 30.06.1980 without statutory notice to the pre-emptor. The pre-emptor became a co-sharer of the disputed holding by purchase by kabala dated 23.05.1972. The pre-emptor first came to know of the kabala sought to be pre-empted 2nd Jaistha, 1388 B.S. when the labourers of pre-emptee went to the case land for cultivation. The pre-emptor, thereafter, took certified copy of the kabala and filed by the pre-emption case.

3. The present petitioner contested the case by filing written objection and his case is that the pre-emptor is not a cultivator as he is a government servant and notice of transfer was duly served upon the co-sharers including the pre-emptor. The further case is that the after purchase the pre-emptee entered into case land within the definite and clear knowledge of the pre-emptor and the pre-emptee purchased the case land within the knowledge of the pre-emptor and his brother Mozammel Huq and other persons of the locality. So the case of the pre-emptor is barred by limitation.

4. The learned Assistant Judge dismissed the miscellaneous case by judgment and order dated 11.01.1989. On appeal, the court of appeal by judgment and order dated 29.08.1995 allowed the same and allowed prayer for pre-emption. The pre-emptee then moved the High Court Division in revisional jurisdiction and obtained the Rule. After hearing the High Court Division discharged the Rule.

5. Leave was granted to consider the submission that the pre-emptor had the knowledge of the purchase by the pre-emptee but he failed to exercise his right of pre-emption within the given time. So the case is barred by limitation.

6. We have heard Md. Harunur Rashid, the learned Advocate for the appellant and Mr.

Hasan Faiz Siddiqui, the learned Advocate for respondent No.l and perused the judgment of the High Court Division and other connected papers.

7. It appears that the pre-emptor is a co-sharer in the disputed holding. It is undisputed that the kabala sought to be pre-empted was executed and presented for registration on

30.06.1980 and the same was registered according to the Provisions of section 60 of the Registration Act, that is, copied in the volume on 30.09.1980 and filed the case seeking pre-emption on 06.08.1989. Therefore, the Miscellaneous case was filed out of time. The case of the pre-emptor is that he first came to know of the kabala under pre-emption on 2nd Jaistha, 1388 B.S. The pre-emptor as P.W.I in his evidence stated that he came to know of kabala under pre-emption for his brother, Mozammel Huq (P.W.2), at his khulna residence on 2nd Jaistha, 1988 B.S. P.W.2 Mozammel Huq, in his evidence stated that he heard about the kabala in question from one Abdul Gani who has not been examined in the case. Accordingly the trial court found that the pre-emptor failed to prove his date of knowledge of the kabala on 2nd Jaistha, 1388 B.S. and consequently the pre-emption case was barred by limitation.

8. We have also perused the evidence. It appears that the pre-emptor claims to have derived his knowledge about the kabala in question from his full brother Mozammel Huq

P.W.2 who derived his knowledge of the kabala from one Abdul Goni on 2nd Jaistha

1388 B.S. but this Abdul Gani was not examined in the case. Therefore, it appears that the pre-emptor has failed to prove that he derived his knowledge about the kabala sought to be pre-empted on 2nd Jaistha, 1388 B.S.

9. In view of the discussion made above, we are of the view that the High Court Division erred in law in not assessing the evidence properly and thereby discharging the Rule.

10. The appeal is accordingly allowed without costs.

Ed.

Source: IV ADC (2007), 193

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