arriving at the finding of knowledge of the pre-emptor as to the transfer in question. It further appears that the appellate Court disbelieved the evidence of PW’s 1,2 and 4 on the ground that they were the own men of the pre-emptor. Such reason given by the appellate Court in disbelieving PW s 1, 2 and 3 is absolutely fallacious and contrary to the settled principle of law that the testimony of a witness cannot be disbelieved only on the ground of relationship or closeness if his evidence is otherwise found to be true and withstand the test of cross-examination. In this regard, reference may be made to the cases of Samad Sikder @ Somed Sikder-vs- State reported in 50 DLR(AD)24, Nowbul Alam and others-Vs- State reported in 45DLR(AD) 140, and Anwara Khatun-Vs-Md. Abdul Hye and others reported in 4BLC(AD) 14.
(M A Wahhab Miha, J.)
In support of the case of knowledge about the transfer in question for the first time in the salish baithak held on 20th of March, 1998 the pre-emptor examined 3(three) witnesses in addition to her husband as PWl. The evidence of the witnesses to the above effect could not be shaken in cross-examination then what more the pre-emptor could do to prove the knowledge within the meaning of subsection (1) of section 96 of the Act. So, the appellate Court was absolutely in error when it observed that the pre-emptor could not prove that she did not know about the transfer in question before 20th of March, 1988. it further appears that the appellate court in a circuitus and negative way disbelieved the pre emptors case of knowledge about the transfer in question on 20th of march, 1988 and the development made in the case land including erection of the shops therein after the said date by posing a question why she did not pray for any injunction after filing of the pre-emption application on 27.05.1998 if the pre-emptees undertook development work in the case land after 20th of March, 1998 in complete disregard to the factual position that the gap between 20th of March, 1998 upto 27 May, 1998 was quite enough to undertake the nature of the development works and erection of the structures on the case land as claimed by the pre-emptees. The appellate Court also failed to consider in its proper perspective that even if it is conceded that the pre-emptees undertook development work after the filing of the pre-emption case and the pre-emptor failed to take any step by way of filing an application to injunct them from undertaking such development work that does not debar the pre-emptor to pray for pre-emption and for such failure no adverse presumpti can be drawn against her. In this regard, law is very much clear which is that the pre-emptees shall be entitled to get development cost till getting notice of the pre-emption application
- 60. it is very much striking to state that the appellate Court itself disbelieved the pre-emptee’s case of spending TK. 5,00,000.00 for the development of the case land including erection of the structures thereon on the ground that he failed to file any documentary evidence in that respect and found that the pre-emptee spent TK. 1,50,000.00 only. From the appellate Court judgment, it further appears that it proceeded with a prior view that since the pre-emption application was filed after 8 (eight) years, the same was barred by limitation ignoring the positive evidence on record adduced by the pre-emptor that she had no knowledge about the transfer in question prior to 20th of March, 1998 and whatever development was done in the case land was done after the said date. The appellate Court also failed to consider the fact that the pre-emptee took specific plea in the written objection as well as in Court while he deposed as OPW-1 that notice under section 89 of the Act was served upon the pre-emptor but failed to prove the said fact which shows that the pre-emptee took false plea in his pleading to defeat the case of the pre-emptor and for this reason the appellate Court ought to have drawn an adverse presumption against him. It is true that the pre-emptee developed the case land and erected some shop rooms therein but the pre-emptor specifically stated that those were done after the disclosure of the fact of transfer on 20tn of March, 1998.
- 61. In sifting the evidence of the PW’s in arriving at the finding of knowledge of the pre-emptor about the transfer in question, the appellate Court totally failed to consider the pertinent fact that the seller-opposite party No.4 is none else, but his full brother and the father of the pre-emptees Sultanuddin Bhuiyan used to cultivate the case land as bargadar during the life time of her father and then under them and the seller used to give her the share of the crops, so even if the pre-emptee was in possession of the case land till 20th of March, 1998 the pre-emptor had no scope to know about the transfer in question.
(M A Wahhab Miha, J.)
In the face of positive evidence adduced by the pre-emptor as to knowledge about the transfer in question as discussed above the pre-emptee was obliged to examine witnesses who as per his own case participated in filling up the case land and erecting shop rooms therein after 1994 and before 20th March, 1998. But the pre-emptee failed to examine any such witness in the case. To specify, the pre-emptee did not examine the truck owner or the truck driver in support of his case that he filled, up the case land by bringing earth in truck from Gazipur and Monoharer chak. The pre-emptee examined one Tota Mia as OPW-5 to prove that earth was brought from Gazipur and Monoharer chak by truck at the cost of taka 3/4 lakh, but in cross-examination he stated that his house was two kilometers away from the case land and that he had no truck and did not submit any receipt of truck fare. The pre-emptee did not examine any one who erected the shop rooms in the case land. The pre-emptee examined Haridas as OPW-6 who is his alleged tenant in the case land since 1995. This OPW stated in his deposition that he had a furniture shop in the case land since 1995 but in support of his tenancy no agreement was produced. Although OPW-6 stated that he has been doing the business in the case land since 1995 by paying rent of TK.6,000.00 per year, no rent receipt was produced. All these categorically disproved the case of the contesting pre-emptee that he undertook development work in the case land in 1994/1995 rather supported the case of the pre-emptor that the development in the case land was done and shop rooms were erected after 20th of March, 1998.
- 63. I am of the view that by examining 4 (four) witnesses in support of the case of knowledge of the transfer in question on 20th of March, 1998 the pre-emptor discharged her onus and then the onus shifted upon the contesting pre-emptee that he developed the case land in 1994/1995 and then erected the shop rooms therein, but he failed to discharge the said onus. The appellate Court did not at all consider this legal aspect of the case.
- 64. From the impugned judgment of the High Court Division, it appears that the High Court Division, in fact, did not discuss and consider the evidence on record on the question of limitation on the view that the question of limitation “hinges on the credibility of the witnesses and the trial Court had the advantage to see the demeanor of the witnesses and as such, its decision in respect of such finding should prevail and accordingly, endorsed the finding of the trial Court on the question of limitation. In this regard, the High Court Division further observed that “The Court of appeal below, on the other hand, did not have the advantage to see the demeanor of the witnesses and as such the finding arrived at by the Court of appeal below as to limitation cannot get preference.
- 65. In view of the discussions made hereinabove, I do not find anything wrong with the view taken by the High Court Division. Since the trial Court did not consider the question of improvement of the pre-emptees and the appellate Court found the same at TK.1,50,000.00, the High Court Division considering the admission of the pre-emptor that the pre-emptees made improvement in the case land at the cost of taka 40,000.00/50,000.00 fixed the development cost at TK.75,000.00. I find the assessment of cost reasonable and based on evidence on record particularly in view of the admitted fact that no documentary evidence was produced in support of the development cost
- 66. It is true that the judgment of High Court Division is not that happy as it should have been, but I do not find any error in the ultimate decision arrived at by the High Court Division in making the Rule absolute restoring those of the trial Court considering the judgments of the two Courts below.
- 67. In conclusion, I am of the view that the appellate Court rejected the pre-emption application on total misreading, non-consideration of the material evidence of the PW s and the OPW’s, with reference to the pleading of the parties as well as the settled principle of law in sifting and weighing the evidence of a witness. I would dismiss the appeal without any order as to cost.
Sd/- M.A. Wahhab Miah, J.
- 68. Nazmun Ara Sultana, J: I have gone through the separate judgments prepared by my learned brother, Surendra Kumar Sinha, J. and my learned brother Md. Abdul Wahhab Miah, J. I agree with the judgment of brother Surendra Kumar Sinha, J.
Sd/- N. A. Sultana, J.
- 69. Muhammad Imman Ali, J: I have gone through the judgments delivered by my learned brothers Surendra Kumar Sinha, J. and Md. Abdul Wahhab Miah, J. I agree with reasons given and the decision arrived at by my learned brother Mr. Md. Abdul Wahhab Miah, J. I would, therefore, dismiss the appeal without any order as to costs.
Sd/- M. Imman Ali, J.
- 70. Muhammad Mamtaz Uddin Ahmed, J: I have gone through the separate judgments prepared by my learned brother, Surendra Kumar Sinha,J. and my learned brother, Md. Abdul Wahhab Miah, J. I agree with the judgment of brother Surendra Kumar Sinha, J.
Sd/- Md. Mamtaz Uddin Ahmed.
- 71. Md. Shamsul Huda, J: I have gone through the separate judgments prepared by my learned brother, Surendra Kumar Sinha, J. and my learned brother, Md. Abdul Wahhab Miah, J. I agree with the judgment passed by my learned brother, Surendra Kumar Sinha, J.
Sd/- Md. Shamsul Huda
The appeal is allowed by majority decision without any order as to costs.