Appellate Division Cases
(Civil)
PARTIES
Md. Alauddin ………….. Petitioner.
-Vs-
Azizul Hussain and others……………… Respondents.
JUSTICES
Mohammad Fazlul Karim J.
Md. Tafazzul Islam J
Md. Hassan Ameen J
Judgment Dated:6th November 2007
From the evidence it is found that petitioner’s homestead is contiguous to the case land and his full brother is the attesting witness in the transfer deeds and the alleged transfer was made by their full brother-in-law. Therefore, the petitioner cannot deny that he was not aware of their transfers. The story of his knowledge from P.W.2, Abdur Rahman has been created subsequently for the purpose of this case………………….. (5)
We have heard the learned Advocateon-Record at length and perused the evidence on record and are of the view that the High Court Division considered the submissions of the learned Advocate for the petitioner with reference to the materials on record but for cogent reasons could not agree with the submissions and dismissed the appeal ………..(6)
We have no reason to disagree with the findings of the High Court Division………(7)
Accordingly, the petition is dismissed ……………………..(9)
A.K.M. Shahidul Huq, Advocate-on-Record ……………..For the Petitioner
For the Respondents …………………None represented.
Civil Petition For Leave To Appeal No.626 of 2005
(From the judgment and order dated the 8th December, 2004 passed by the High Court Division in Appeal from the Original Order (F.M.A.)No.291 of 2001.).
JUDGMENT
Mohammad Fazlul Karim J: Md. Alauddin, petitioner, seeks Leave to Appeal against the judgment and order dated 08.12.2004 passed by the High Court Division in First Miscellaneous Appeal No.291 of 2001 dismissing the appeal affirming the judgment and order dated 27.03.2001 passed by the Subordinate Judge, Second Court, Sylhet in Miscellaneous (Pre-emption) Case No. 191 of 1993 dismissing the pre-emption case.
2. The facts of the case, in short, are that the disputed land originally belonged to Ashek Ali, predecessor of respondent Nos.2-10. Ashek Ali sold the same to respondent No.l by two registered deeds dated 05.05.1990 and 12.05.1990 beyond the knowledge of the petitioner. The petitioner is a co- sharer in the suit jote by purchase. He came to know of the transfer 67 years before from one Abdur Rahman. After that he token certified copy of the kabalas and acquired his knowledge of the transfer. Thereafter, he filed the miscellaneous case under Section 96 of the State Acquisition and Tenancy Act with the proper deposit of the consideration amount. He claimed that he is in possession of the disputed land till today as it was mortgaged to him at TK.55,000.00 and the respondents never came to possession of the disputed land.
3. The respondent No.l contested the Miscellaneous case by filing a written objection in which he denied all the averments of the petitioner made in the Miscellaneous application. In his written objection respondent No. 1 stated that he is in possession of the case land; the petitioner had knowledge of the transfer since the vendor is his full brother-in-law who offered to sell the disputed land to the petitioner and his brother. But they expressed their incapacity to purchase the same. When the proposal of sale was made to the respondent No.l he said that if any of the members of their family be a witness in transfer deed then he will purchase the same and after purchase he took possession of the disputed land. As the disputed land is contiguous to the house of the petitioner and the market price of the land has risen up so at the instance of other petitioner who has filed the present Miscellaneous case for his personal gain.
4. Mr. A.K.M. Shahidul Huq, learned Advocate-on-Record, appearing for the petitioner submitted that while dismissing the appeal affirming the judgment and order of the trial Court, the High Court Division failed to consider that the pre-emptor had no knowledge about the transactions before September, 1993 and after getting definite knowledge on 07.10.1993. filed the pre-emption case within the period of limitation and as such, got right to pre-emption; that the pre-emptor had no knowledge about the transfer before September, 1993 which was also proved by the P.W.2 Abdur Rahman, who is a cultivator and stated that the pre-emptor is in possession of the case land; that the burden of proof respecting knowledge of the impugned transfer having been primarily discharged by the pre-emptor through oral evidence and also by production of the certified copy of the sale deeds under preemption, the onus as to knowledge has been shifted upon the pre-emptee which he failed to discharge; that on of the brother of the pre-emptor was a witness to the alleged transfer and as such, the pre-emptor had knowledge of the transfer but failed to appreciate that the attesting witness is not suppose to know the contents of the deed and he himself as P.W.3 categorically denied of having knowledge about the contents of the kabalas; that the pre-emptee seller orally mortgaged the property in favour of the pre-emptor which was also proved by oral evidences; that the respondent No.l asserted in his written objection that he approached the pre-emptor before transfer but failed to substantiate the same by evidence and his witnesses also made contradictory evidence to that effect. The learned Advocate further submitted that the trial Court relied upon the testimony of RW.2, Pukon Miah, but in fact the said P.W.2 is a man from different village and not an independent witness, rather loyal to the pre-emptee purchaser and as such, his evidence can not be relied upon; that the burden lies upon the pre-emptee respondent No.l to prove that the pre-emptor had knowledge of the alleged transfer but he failed to do so.
5. It appears from the record that the petitioner possesses the disputed land. The respondent No.l, Aminul Hossain once requested him to measure the case land. But he denied alleging that another person is in possession of the case land. He can not measure the same without his consent and then he informed the transfer of the case land to the petitioner. He told it in the 1st September, 1993 and within a week he reported the matter to the petitioner who took certified copy and filed the Miscellaneous Case. In the cross-examination P.W.2 Abdur Rahman admitted that the case land is demarcated by pillars and Haji Ilias Mia is the northern contiguous owner. He cannot say the name who told him to measure the case land. But he admitted that he knows respondent No.l since 20 to 25 years. He failed to say on which date respondent No.l approached him to measure the case land and who was present at that time. He stated that he went to the house of the petitioner, Alauddin to inform him of transfer. At that time his brother, Ashabuddin was present. He is the attesting witness in the deed. In the cross-examination he admitted that respondent No.l, Azizul Islam is possessing the case land on the basis of the kabala dated 05.05.1990 and 12.05.1990 by demarcating it by pillars. From the evidence it is found that petitioner’s homestead is contiguous to the case land and his full brother is the attesting witness in the transfer deeds and the alleged transfer was made by their full brother-in-law. Therefore, the petitioner cannot deny that he was not aware of their transfers. The story of his knowledge from P.W.2, Abdur Rahman has been created subsequently for the purpose of this case.
6. We have heard the learned Advocateon-Record at length and perused the evidence on record and are of the view that the High Court Division considered the submissions of the learned Advocate for the petitioner with reference to the materials on record but for cogent reasons could not agree with the submissions and dismissed the appeal.
7. We have no reason to disagree with the findings of the High Court Division.
8. In view of the above, we find no merit in submissions of the learned Advocate on-
Record for the petitioner.
9. Accordingly, the petition is dismissed without any order as to costs.
Source : V ADC (2008),389