Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors

APPELLATE DIVISION

(CIVIL)

Mr.Md. Muzammel Hossain. CJ.

Mr. Surendra Kumar Sinha, J..

Mr. M. Abdul Wahhab Miah, J.

Mrs. Nazmun Ara Sultana, J.

Mr. Muhammad Imman Ali, J.

Mr. Justice Muhammad Mamtaz Uddin Ahmed, J.

Mr. Justice Md. Shamsul Huda, J.

Judgment

1st, 8th 15th June, 2011.

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 Md. Habibur Rahman Bhuiyan and others

…Appellants

VS

Mosammat Galman Begum and others

….Respondents

 

Constitution of Bangladesh, 1972

Article 103(2)

If this Division finds a substantial and grave injustice or if there exists special and exceptional circumstances it can exercise extra ordinary jurisdiction for doing ‘complete justice’ in any matter pending before it. This does not mean that in every petition or appeal this Division will   exercise extraordinary jurisdiction and reassess the evidence on record as may be done in an appeal under clause (2) of Article 103  (Per S K Sinha majority view).                                                            … (13)

Code of Civil Procedure (V of 1908)

Order XLI, Rule 31

(S.K.Sinha, J.)

The High Court Division should have exercised its jurisdiction within the tenor of law but in the instant case, it has shirked its responsibility and relied on the findings of the trial Court overlooking the findings of the Court of appeal below which has decided the issue on the basis of the materials on record. The High Court Division failed to notice the settled principle of law and interfered with the judgment of the appellate court without assigning reasons in any manner (Per S K Sinha majority view).

….. (14)

State Acquisition and Tenancy Act (XXVIII of 1951)                  

Sections 89 and 90

Even if the pre-emptee does not raise the points of requirements as laid down in sections 89 and 90 of the SAT act, such requirements of law must be satisfied by the pre-emptor before claiming a right of pre-emption (Per S K Sinha majority view).

…. (17)

Constitution of Bangladesh, 1972

Article 111

The opinion as expressed in the Abdus Samad Case (33 DLR(AD)113) being a larger Bench of the Appellate Division ,the said opinion would prevail over the opinion as expressed in Abdur Rashid case (58 DLR (AD) 159), (Per S K Sinha majority view).                                                        … (17)

Code of Civil Procedure (V of 1908)

Sections 115(1)

There is no scope on the part of the High Court Division to sit on appeal over the finding of fact arrived at by the appellate Court. The High Court Division failed to point out any misreading or non-consideration of the evidence in arriving at such findings by the Court of appeal below. These findings   being based on proper appreciation of the evidence on record are binding upon the High Court Division exercising its revisional jurisdiction (Per S K Sinha majority view).            … (20)

State Acquisition and Tenancy Act (XXVIII of 1951)    

Section 96

The High Court Division having accepted the pre-emptees claim of development, it has impliedly accepted the findings of the appellate Court that the improvement has been made to the knowledge of the pre-emptor at least prior to the date of knowledge. There is thus apparent inconsistency in the judgment of the High Court Division.  In the premises, it is apparent that both the trial Court as well as the High Court Division did not apply its’ judicial mind in believing the date of knowledge of the pre-emptor (Per S K Sinha majority view).                                               …(21)

Evidence Act (I of 1872)

Section 137

The functions of cross-examination is to have the exact truth, to ascertain what part of the story is true, what is false and what is left out-these matters may be learnt, by searching for the questions put to the witness (Per S K Sinha majority view).

(S.K.Sinha, J.)

A witness is cross-examined for ascertain-nment of truth as regards his relationship with the parties, the subject of litigation, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discerning facts in the first instance and his capacity of retaining and describing them. The paramount object of cross-examination is firstly, to bring out desirable facts of the case modifying the examination-in-chief or establishing the cross-examiner’s own case; Secondly, to impeach the credit of the witness, thirdly, the extraction of the qualifying the circumstances of the testimony given by a witness and to unveil all the facts known to the witness, and fourthly, to halt falsehood in its tracks and discover the truth before the Court of law.  In course of cross-examination if it is possible to unveil any fact which supports the case of cross-examiner or an indication is revealed from the lips of the witness or if the witness makes statement inconsistent with his chief, the Court may infer an adverse presumption against the party for whom he has deposed in the case (Per S K Sinha majority view).                             … (28)

State Acquisition and Tenancy Act (XXVIII of 1951)

Sections 96

Since the pre-emptor’s witnesses have admitted the pre emptees case of improve-ment of the case land in 1995, the pre-emption case is hopelessly barred by limitation as the case was filed in 1998.

The pre-emptor’s witnesses having admitted the pre-emptees case of improvement of the case land in 1995, the case having been filed in 1998, there is no doubt that it is hopelessly barred by limitation and the Court of appeal below is perfectly justified in believing the pre-emptees case of improvement and construction  of  the  case  land.  The High Court Division, in the premises, committed a fundamental error in interfering with the judgment of the appellate Court on the point of limitation. Thus, we find that the Court of appeal below on a proper assessment of the evidence on record rightly held that the case is hopelessly barred by limitation.  (Per S K Sinha majority view).                                                  …(29)                                                                                                                                                                                                                                                                                                                      

State Acquisition and Tenancy Act (XXVIII of 1951)

Sections 89 and 96

(Evidence Act (1 of 1872)

Sections 101, 102, 103, and 104.  

      Since the learned counsel for the appellants gave up the point of defect of parties, it is not at all necessary to dwell upon the same. The appellate court misread as well as failed to consider the material evidence on record and also misconceived the case of the pre-emptor as made out in the pre-emption petition in arriving at the finding of knowledge of the pre-emptor as to transfer in question. It is the settled principle of law that the testimony of a witness cannot be disbelieved only on the ground of relationship if his evidence is otherwise found to be true and withstand the test of cross-examination. The pre-emptor examined four witnesses in support of knowledge about the transfer in question for the first time in the salish baithak held on 20-03-1998 and such evidence of the witnesses could not be shaken in cross-examination. The pre-empees shall be entitled to get development cost till getting notice of the pre-emption application. The pre-emptee took false plea regarding serving notice under section 89 of the SAT Act. The contesting pre-emptee has failed to prove that he undertook development work in the case land in 1994/1995 rather it supported the case of the pre emptor that such development work was done and the shop rooms were erected after 20-03-1998. The pre-emptor proved her case of knowledge by four witnesses and she discharged her onus and then it shifted upon the contesting pre-emptee but he failed to discharge the said onus. The development cost was fixed at Tk. 75,000,000 by the High Court Division which appears to be reasonable. The appeal is dismissed without any order as to costs. (Per M.A. Wahhab Miah minority view).      … (39, 59, 60, 63 & 65)

(S.K.Sinha, J.)

Abdus Samad and others vs Md. Sohrab Ahmed and others, 33 DLR (AD)113; Abdur Rashid Sarker (Md) and others vs Dines Chandra Das and others, 58 DLR (AD) 159; Motilal Sikder vs Benodini Basi, 28 DLR(AD) 5; Anwara Khatun vs Md Abdul Hye, 4 BLC (AD) 14, Samad Sikder @ Somed Sikdar v/s State,50 DLR(AD)24 and Nnowabul Alam Vs State, 45 DLR (AD) 140, ref.

Mr. Mahbubey Alam, Senior Advocate, instructed by Mr. Chowdhury Md. Zahangir, Advocate-on-Record

…. For the Appellants No 1.

Mr. Kamal-ul-Alam, Senior Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record.

. . . For Respondent No.1:

For   Respondent   Nos. 2(a)-3:            Ex-partee.

Judgment

Md. Muzammel Hossain, C.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.

  1. 2.           S.K. Sinha, J: Pre-emptor is the appellant who seeks pre-emption of a holding claiming as co-sharer transferred by the respondent No. 2 in favour of Sultan Uddin Bhuiyan, the predecessor of the respondent Nos.1-3. Leave was granted to consider on two points, namely; the defect of parties and the limitation.
  2. 3.          Short facts which gave rise to the institute of the pre-emption proceeding are as follows:

Elahi Box and Abdul Malek Mollah are owners of the case holding in equal shares.  There was an amicable partition between the said co-sharers. By an amicable partition Abdul Malek Mollah got 13 decimals of land of the case holding who died leaving wife, a son and two daughters. On the death of Abdul Malek Molla’s wife, her interest devolved upon her son and daughters. The pre-emptees’ father Sultan Uddin Bhuiyan was a bargadar under the preemptor’s father and later on under her.  Pre-emptor requested the respondent No. 2, the vendor on different occasions to partition the joint property left by her parents. Pre-emptor’s husband being a Government Servant, she used to stay with her husband at different places and so she could not visit her paternal home regularly. On her request her brother, the vendor, arranged a meeting for amicable partition of the joint property and in the said meeting, the vendor disclosed that he had transferred the case land to the father of the pre- emptees when she came to know about the transfer. Thereafter pre-emptor obtained the certified copy of the deed and ascertained about the transfer.  No notice for transfer was served upon her and she being a co-sharer in the holding is entitled to preempt the land transferred by her brother.

  1. 4.         

    (S.K.Sinha, J.)

    (S.K.Sinha, J.)

    The pre-emptees contested the case denying the material averments made in the petition and stated that the land in R.S. Plot No. 7585 belonged to Elahi Box and Abdul Malek Mollah in equal shares and that each of them got 13 decimals of land. Elahi Box died leaving a son, the vendor, and a daughter by the 1st wife. Elahi Box’s son, the vendor by amicable arrangement with his sister got 13 decimals of land of Plot No. 7585 in his share, who sold the same to pre-emptees  predecessor  and  after  purchase he filled up the land at a cost of Tk 2,00, OOO/- and erected structures. Pre-emptor was aware about the transfer as she used to visit her village occasionally and as such it was known to her that the pre-emptees are the owners of the land by purchase. They have got their names mutated upon separation of the jama and have been paying rent. The case is hopelessly barred by limitation and also bad for defect of parties.

  1. 5.          The trial Court allowed the pre-emption and on appeal from the said judgment, the Court of appeal below reversed the judgment of the trial Court and dismissed the pre-emption. The pre-emptor thereupon took a revision petition in the High Court Division which made the rule absolute, set aside the judgment of the Court of appeal below and restored that of the trial Court. While interfering with the judgment of the lower appellate Court, the High Court Division preferred to approve the views of the trial Court on the reasonings that it had the advantage to see the demeanour of the witnesses and disposed of the issues in a slip-shod manner without reversing the findings.
  2. 6.          The moot question is whether the High Court Division is justified in disturbing the findings of fact arrived at by the Court of appeal below holding that the case is barred by limitation and bad for defect of parties, which are based on appreciation of the evidence on record.
  3. 7.          Mr.  Mahbubey Alam, learned counsel appearing for the pre-emptees appellants has taken us to the pleadings, the evidence on record, the judgments and submits that the manner in which the High Court Division interferes with the judgment of the lower appellate Court is against the settled principles of law, inasmuch as, the lower appellate Court upon proper sifting of the evidence on record has held. that the case is bad for defect of parties and also barred by limitation but the High Court Division without reversing the findings on the above two counts has interfered with the judgment and in doing so, it has also assigned no reasons whatsoever.
  4. 8.          Mr. Kamal-ul-Alam, on the other hand, contended that the pre-emptees did not raise, the point of defect of parties at the earliest opportunity; for which, the High Court Division had rightly interfered with the judgment of the Court of appeal below holding that since this point had not been raised, the Court of appeal below had committed error of law in finding the case as bad for defect of parties. In support of his contention, the learned counsel has referred the cases of Abdus Samad & others Vs. Md. Sohrab Ali and others, 33 DLR (AD) 113 and Abdur Rashid Sarker (Md) and others Vs. Dines Chandra Das and others, 58 DLR (AD) 159. Learned counsel  further  contended that the  High Court  Division  is  justified  in  restoring  the judgment  of  the  trial  Court  on  the  point of limitation, inasmuch as, the Court of appeal below disbelieved the pre-emptor’s witnesses merely on the ground of relationship which is not a legal ground for disbelieving a witness.
  5. 9.         

    (S.K.Sinha, J.)

    (S.K.Sinha, J.)

    On the point of the defect of parties, the Court of appeal below on assessment of the evidence on record came to a definite conclusion  that the heirs of Elahi Box are admitted co-sharers and that since the pre-emptor had admitted the same, the trial Court committed illegality in allowing pre-emption ignoring the point of  defect of parties . The High Court Division was of the view that the trial Court on consideration of the materials on record came to the finding that the case was not bad for defect of parties and that the Court of appeal below without assigning any reason abruptly came to the finding on the point of defect of parties. This finding of the High Court Division is based on non-application of judicial mind, inasmuch as, the Court of appeal below while deciding the point defect of parties has considered both oral and documentary evidence, particularly the khatians and came to the conclusion that the heirs of Elahi Box are admitted co-sharers. The Court of appeal below further observed that the trial Court’s observation that the pre-emptees did not point out about the names of the persons who have been left out despite that they were asked to supply the particulars in the interrogatories was not correct, inasmuch as, in the interrogatories submitted on behalf of the pre-emptor, it was not asked to supply the names of the persons who had been left out and naturally the pre-emptees did not supply the names. This finding of the Court of appeal below is based on consideration of the materials as well as the evidence on record and it being a finding of fact is binding upon the High Court Division, The High Court Division while interfering with the judgment overlooked the reasons assigned by the appellate Court and did not assign any reason as to the correctness of the findings arrived at by it.

  1. 10.      Learned counsel for the pre-emptor argued that this point having not been specifically raised in the trial Court the appellate Court was not justified in deciding the point. There is no dispute that the pre-emptees made general statement on the point of defect of parties in the denial portion of their pleadings but in the statements of facts, they positively asserted that the heirs of Elahi Box are co-sharers of the khatian. However, they did not claim that as those heirs having been left out, the case is bad for defect of parties. The trial Court discarded this point observing that the pre-emptees did not supply the names of the persons who had been left out in answer to the interrogatories supplied by the pre-emptor. This observation suggests that the pre-emptees have raised the point in the trial Court, and the lower appellate Court reversed the observations of the trial Court on perusal of the interrogatories. Since there are conflicting findings on the point of defect of parties, the High Court Division ought to have examined the record and resolved the issue on perusal of the interrogatories particularly the lower appellate Court has made positive finding in that regard.
  2. 11.      The High Court Division observed that the Court of appeal below without assigning any reason abruptly came to a finding that the case was bad for defect of parties. Such a finding cannot be sustained in law. This is not a legal ground for interference of the judgment of a court of appeal. The High Court Division ought to have decided as to whether the finding on the point of defect of party is based on the evidence on record. The Court of appeal below observed that the pre-emptor ought to have impleaded all co-sharers in the S.A. Khatian and apart from that it was observed “Avi, Gm, LvwZqv‡bi bvwjkx `v‡Mi Aci 11| Avbv Ask Gjvnx eK‡mi bv‡g wjwc nBqv‡Q| `iLv¯—Kvwibx c¶ ¯^xKvi Kwi‡j I D³ Gjvnx eK‡mi Iqvwimvb‡`i AÎ AMÖ µq †gvKÏgvq  c¶fz³ K‡i bvB” therefore we find that the lower appellate Court has assigned reasons but the High Court Division has overlooked those findings. In view of the above, the High Court Division erred in law in interfering with the judgment of the court of appeal below on this issue.
  3. 12.     

    (S.K.Sinha, J.)

    When   a   finding   of   fact   is   based   on consideration of the materials on record, those findings are immune from interference by the revisional Court except there is non-consideration or misreading of the material evidence on record. The High Court Division has no jurisdiction to sit on appeal over a finding of fact. It is concerned with the question as to whether the appellate court in giving a particular finding has committed any error of law resulting in an error in the decision occasioning failure of justice or such finding is found to have resulted from glaring misconception of law or there is misreading or non-consideration of material evidence in arriving at such finding.

  1. 13.      Similarly Article 103 does not give a right to a party to appeal to this Division except in cases provided in clause (2) to Article 103. Normally this Division grants leave against a judgment, decree or sentence of the High Court Division or from the judgment of the Administrative Appellate Tribunal if a substantial question of law of general or public importance arises which may not only determine the dispute between the parties but will be precedent for guidance for determination of similar disputes in other cases. The mere fact that some question of law arises from the judgments of the High Court Division or the Tribunal will not enable a party to claim as of right to appeal to the Division. This Division would also interfere with the judgment of the High Court Division or the Tribunal where a finding is reached without taking into consideration vital evidence or where the conclusions arrived at without consideration of the materials evidence or the finding which is inconsistent with the evidence on record. Apart from the above, if this Division finds a substantial and grave injustice or if there exists special and exceptional circumstances it can exercise extra ordinary jurisdiction for doing ‘complete justice’ in any matter pending before it. This does not mean that in every petition or appeal this Division will exercise extraordinary jurisdiction and reassess the evidence on record as may be done in an appeal under clause (2) of Article 103.
  2. 14.      The High Court Division should have exercised its jurisdiction within the tenor of law but in the instant case, it has shirked its responsibility and relied upon the findings of the trial Court overlooking the findings of the Court of appeal below which has decided the issue on the basis of the materials on record. The High Court Division failed to notice the settled principle of law and interfered with the judgment of the appellate court without assigning reasons in any manner. In Abdus Samad vs. Sohrab Ali, 33 DLR(AD) 113, this Division Motilal Sikder Vs. Benodini Basi, 28 DLR (AD) 5 and observed   “objection   regarding   non-joinder  of necessary party should be taken at the earliest opportunity  before  the  trial  Court,  because  an enquiry  on  this  question  may  be  necessary.  Of course, in an appropriate case such objection may be allowed to be raised in the appeal. This may be done on the ground that the appeal is continuation of the suit or proceeding.  But there is no scope for raising the question of defect of parties on account of non-joinder of necessary parties, for the first time in revision.
  3. 15.      In Abdur Rashid Sarker’s case (58 DLR(AD) 159),two  member  Bench  of  this  Division  noticed  the earlier cases including the case of Abdus Samad and observed “we are of the view that objection as to defect of parties is to be taken at the earliest opportunity. In the instant case that has not been done. Moreover, the pre-emptees did not supply the names of the persons whose names he put to the pre-emptor during cross-examination in reply to the interrogatory served on him. Therefore, in our view he was debarred from making such cross-examination regarding defect of parties and he was also debarred form raising the question of defect of parties at that stage of the proceeding after replying to the interrogatory served on him earlier”.
  4. 16.     

    (S.K.Sinha, J.)

    In Abdur Rashid, the pre-emptee’s raised the point of defect of parties in the written objection but did not supply the names of the persons left out in reply to the interrogatories asked by the pre-emptor. In the context of the matter, this Division maintained the judgment of the High Court Division which dismissed pre-emption. While approving arguments in Abdus Samad this Division in Abdur Rashid failed to notice the other opinion expressed therein that even if no objection was raised in the trial Court, it could be raised at the appellate stage since the appeal is the continuation of the proceeding. Only exception that has been taken is that this point can not be raised for the first time in revision.

  1. 17.      What’s more, the claim of pre-emption is a predatory right and that is why, the legislature has imposed conditions for claiming pre-emption, such as, the petition should be made within four months of the service of notice under section 89 or if no notice has been served, within four months of the date of knowledge of the transfer, that the pre-emptor must be a bonafide cultivator and must fulfill the conditions laid down in section 90, that a tenant holding land contiguous to the land transferred claiming pre-emption shall make “all the co-sharer tenants of the holding and all the tenants holding lands contiguous to the land transferred and the transferees” parties and that a co-sharer tenant claiming pre-emption shall make “all other co-sharer tenants of the holding and the transferee” parties. Even if the pre-emptee does not raise the above points, the above requirements of law must be satisfied by the pre-emptor before claiming a right of pre-emption. There is no dispute that the pre-emptees raised the point of defect of parties in the trial Court, of course in an evasive manner but that the trial Court had considered the said issue and accordingly, the point was decided. The opinion expressed in Abdus Samad being a larger Bench, the said opinion would prevail over the opinion expressed in the case of Abdur Rashid. Therefore, the High Court Division has committed error of law in interfering with the judgment of the lower appellate Court on the point of defect of parties.
  2. 18.      Mr. Mahbubey Alam pressed the point of limitation and submitted that the case is hopelessly barred by limitation. As to the point of limitation, there is no dispute that the case was instituted more than 8 years after the date of execution of the sale deed. Pre-emptor claimed that no notice was served upon her and as she was staying away from the case land with her husband, she had no knowledge about the transfer prior to 28th March, 1998, on which date, the vendor disclosed about the transfer of the case land. The trial Court believed the pre-emptor’s plea about the date of knowledge on the reasoning that there are corroborating evidence of P.Ws.1-4 in this regard and that the claim of the pre-emptees is inconsistent.
  3. 19.     

    (S.K.Sinha, J.)

    The Court of appeal, on the other hand, after reassessment of the evidence of P.Ws.1-4 held that the pre-emptor’s witnesses had admitted the pre-emptees claim of development of the case land except the amount of costs spent towards such development, that the improvement and constructions were made in 1995 to the knowledge of the pre-emptor, that the pre-emptor’s witnesses being the nearest relations, they could not be relied upon without corroboration by independent witnesses and that the pre-emptor failed to prove that in the alleged salish there was talk for amicable partition of other joint properties, which belied her claim of date of knowledge. The Court of appeal below came to the conclusion that since the pre-emptor’s witnesses had admitted the development of the case land, it was apparent that the date of knowledge as stated in the petition was false and that if the pre-emptees had improved the case land after the institution of the case on 27th May, 1998 as claimed, she ought have prayed for injunction restraining the pre- emptees from improving the case land but she did not take such step.

  1. 20.      Thus, we find that the Court of appeal below has disbelieved the pre-emptor’s claim about the date of knowledge not merely on the ground of examination of nearest relations but also on taking into consideration the fact of development of the case land long before the date of institution of the case to the knowledge of her witnesses, who are none but her nearest relations. These findings of the Court of appeal below are based upon a proper appreciation of the evidence of both sides. There is no scope on the part of the High Court Division to sit on appeal over the finding of fact arrived at by the appellate Court. The High Court Division failed to point out any misreading or non-consideration of the evidence in arriving at such findings by the Court of appeal below. These findings       being based on proper appreciation of the evidence on record are binding upon the High Court Division exercising its revisional jurisdiction
  2. 21.      More so, the trial Court did not give development costs to the pre-emptor while allowing pre-emption, although there are sufficient evidence in that regard, which proved that the judgment of the trial Court was perfunctory and the High Court Division though noticed this defect, maintained the judgment of the trial court by awarding development costs without reversing the findings of the appellate Court that the development was made in 1995.The High Court Division having accepted the pre-emptees claim of development, it has impliedly accepted the findings of the appellate Court that the improvement has been made to the knowledge of the  pre-emptor  at  least  prior  to  the date of knowledge. There is thus apparent inconsistency in the judgment of the High Court Division.  In the premises, it is apparent that both the trial Court as well as the High Court Division did not apply its judicial mind in believing the date of knowledge of the pre-emptor.
  3. 22.      The High Court Division has committed another fundamental error in disturbing the finding of fact on the point of date of knowledge, inasmuch as, the High Court Division did not say that there is no misreading or non-consideration of the evidence on record by the Court of appeal in arriving at the conclusion that the pre-emptor had knowledge about the transfer long before the date of knowledge and that she had instituted the case as soon as the case land had been improved at huge costs. The High Court Division though observed that the point of limitation is a disputed question of fact which can be determined on the basis of the evidence on record but on the other breath, it observed 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 the decision of the trial Court in respect of such finding should prevail. 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 as to the limitation cannot get preference”.
  4. 23.     

    (S.K.Sinha, J.)

    The High Court Division gave precedence to the conclusions arrived at by the trial Court on the reasonings that the trial Court was in an advantageous position to assess the demeanour of the witnesses. This finding of the High Court Division would have been justified if the trial Court had assessed all material evidence and arrieved at correct finding after such assessment. The High Court Division failed to notice that the trial Court overlooked the admissions made by the pre-emptor’s witnesses, who had impliedly supported the pre-emptees case of improvement. The High Court Division made further error in accepting the pre-emptees claim of development of the case land without ascertaining the exact date of such improvement, and also without repelling the findings of the appellate Court that the improvement was made in 1995.

  1. 24.      Since the pre-emptees came up with a specific case that they in proved the case land in 1995, and since the appellate Court believed their case on appreciation of the evidence, the High Court Division could have interfered with such finding if it had found any misreading or non consideration of this evidence in arriving at such finding. The High Court Division did not decide the issue in the manner it ought to have decided while interfering with the judgment of the appellate Court. This awarding of costs is also inconsistent with other findings of the judgment of the High Court Division, inasmuch as, whenever the High Court Division was convinced that the pre-emptees had improved the case land and spent Tk.75,000/-, the pertinent question which required to be decided was, when the pre-emptees had improved the case land? The High Court Division failed to notice that there is nexus between the development of the case land and the date of knowledge and since the pre-emptees have come up with a definite case that immediate after the purchase, they have developed the case land to the knowledge of the pre-emptor,  the High Court Division under such circumstances was required to decide the point by bringing all facts  in juxtaposition but it disbelieved the findings of the appellate Court regarding the date of knowledge without expressing any opinion in that regard.
  2. 25.      The basis of the finding of the Court of appeal on the point of limitation is based on the evidence of the pre-emptees witnesses and the admissions of pre-emptor’s   witnesses   in   course   of   cross- examination.  The appellate Court assigned reasons and it cannot be said that the reasons assigned by it are capricious. The observations that if the improvement was made during the pendency of the case as claimed, naturally the pre-emptor would have intimated the Court and sought for injunction against such improvement but she did not take any step in that regard, which suggested beyond doubt that the constructions were made after the purchase to the knowledge of the pre-emptor, appear to me sound. The High Court Division totally ignored this finding of the Court of appeal below.
  3. 26.     

    (S.K.Sinha, J.)

    In this regard Mr. Mahbubey Alam has taken us the material portion of the evidence of the witnesses.  Khandaker Mahmud Murshed (P.W.I) who deposed on behalf of the pre-emptor had admitted that at least once a year he visited the pre- emptors village home.   In course of cross- examination, he admitted that in 1994, a road towards the western side and a bridge towards the southern side were constructed. He admitted that bharatias are in possession of the shops.  He, however, stated that the bharatias came after 28th March but he failed to substantiate his claim. This witness has practically admitted the, pre-emptees case. Khandaker Monjur Murshed (P.W.2) admitted in course of cross-examination that the case land had been improved by filling earth by the pre-emptees and their sons. He, however, could not say the date of such improvement. He admitted that the case land is situated at a distance of 150 yards from his house and that the pre-emptees constructed 3 shops. He failed to give the exact date or year on which the bharatias are in possession. He also admitted that previously the case land was ditch type of land (low lying area) and at present there are shops and that the purchasers improved the case land. This witness suppressed some facts regarding the exact date from which the tenants have been doing business but he has practically admitted the pre-emptees case.  This witness  being  a  close  neighbour  is supposed  to  know  when  the  pre-emptees  have constructed the  shops  and  let  out  the  same  to bharatias (tenants).

  1. 27.      Munshi Munir Uddin Ahmed (P.W.3) also admitted that the pre-emptees constructed shops. In cross-examination, this witness stated that during the rainy season the case land was under water but it had been raised by filling earth up to the road level. He stated that Sultan Bapari and his sons have been enjoying the case land and that there are 2/3 shops where the shop keepers are carrying on business of cement and selling tea. He also admitted that Azahar has been dealing with cement business in one shop as tenant under Sultan.  Iftekher Uddin Mollah (P.W.4) also made similar statements corroborating with P.W.3. He stated in cross mZ¨ 1-3 bs weev`x Lwi` Gi Zvwi‡L I `L‡ji 1995 m‡bi g‡a¨ Ni `iRv wbg©vY K‡i|Ó This witness   admitted   the   pre-emptees claim of construction of shops in 1995 and this admission destroys the entire story of the pre-emptor about the date of knowledge. When the admission of this witness was confronted to Mr. Kamalul Alam, learned counsel simply replied that there might be some mistake on the part of the trial Court in recording the testimony of this witness but he failed to show anything that this witness did not make such statement. On the other hand, the pre-emptees have examined 4 witnesses, who have corroborated the case of pre-emptees that they have constructed shop in 1995, of them, P.W.4 is a tenant.
  2. 28.      A witness is cross-examined for ascertainment of truth as regards his relationship with the parties, the subject of litigation, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discerning facts in the first instance and his capacity of retaining and describing them.  The paramount object of cross-examination is firstly, to bring out desirable facts of the case modifying the examination-in-chief or establishing the cross-examiner’s own case; Secondly, to impeach the credit of the witness, thirdly, the extraction of the qualifying the circumstances of the testimony given by a witness and to unveil all the facts known to the witness, and fourthly, to halt falsehood in its tracks and discover the truth before the Court of law.  In course of cross-examination if it is possible to unveil any fact which supports the case of cross-examiner or an indication is revealed from the lips of the witness or if the witness makes statement inconsistent with his chief, the Court may infer an adverse presumption against the party for whom he has deposed in the case. The functions of cross-examination is to have the exact truth, to ascertain what part of the story is true, what is false and what is left out-these matters may be learnt, by searching for the questions put to the witness.
  3. 29.     

    (S.K.Sinha, J.)

    On a cursory glance of the evidence adduced by the pre-emptor’s witnesses as above, we noticed that these witnesses, particularly P.W.4 has admitted the pre-emptees claim that they have constructed shop after improving the case land after purchase in 1995. The pre-emptor’s claim that as the pre-emptees were her borgaders, she had no knowledge about the transfer earlier had been negated by her witnesses, inasmuch as, her witnesses admitted that the case land was initially a low lying land, and that the pre-emptees had raised the level by filling earth and constructed shops in 1995. Therefore, the story of borga cultivation is a myth. Further, she did not adduce any reliable evidence regarding borga cultivation. The High Court Division has totally ignored the admission of P.W.4 who negated the pre-emptor’s plea of date of knowledge and also the year in which the pre-emptees made construction. I The pre-emptor’s witnesses having admitted the pre-emptees case of improvement of the case land in 1995, the case having been filed in 1998, there is no doubt that it is hopelessly barred by limitation and the Court of appeal below is perfectly justified in believing the pre-emptees case of improvement and construction  of  the  case  land.  The High Court Division, in the premises, committed a fundamental error in interfering with the judgment of the appellate Court on the point of limitation. Thus, we find that the Court of appeal below on a proper assessment of the evidence on record rightly held that the case is hopelessly barred by limitation.

  1. 30.      This appeal merited consideration which is allowed without any order as to costs.

Sd/- Surendra Kumar Sinha, J.

  1. 31.      Md. Abdul Wahhab Miah, J: I regret that I could not subscribe to the views expressed in the judgment of my learned brother S.K.Sinha, J.
  2. 32.      Facts leading to this appeal are as follows:

    Respondent    No. 1 as pre-emptor filed Miscellaneous (pre-emption) Case No.7 of 1998 in the Court of Assistant Judge, Araihazar, Narayangonj for pre-emption of the case land impleading the present appellants and respondent Nos.2 and 3 as opposite parties. Of the 5(five) opposite parties, present appellants were the pre-emptee opposite party Nos.l-3 and present respondent No.2 was the seller opposite party No.4. Respondent No.3 was the other co-sharer (the appellants as well as the respondents hereinafter shall be referred to as opposite parties). The case of the pre-emptor was that the land sought to be pre-empted along with other land being in total 26 decimals belonged to Elahi Bux and Abdul Malek Mollah in equal share. There was an amicable partition between them and Abdul Malek Mollah got 13 decimals of land in his saham. In 1971, Abdul Malek died leaving behind widow, a son (the seller opposite party No.4) and two daughters, that is, the pre-emptor and opposite -party No. 3. Abdul Malek Mollah’s wife Aesha died in 1973 and the case land devolved upon his son and daughters. The father of the pre-emptees was the bargadar under the pre-emptor’s father and later on under the pre-emptor and the other co-sharers. After the death of the parents of the pre-emptor, she on several dates requested the seller opposite party No.4 to partition the land described in the schedule to the application along with other land left by them, but he killed time on this, or that plea. After the marriage of the pre-emptor in May, 1977, she had to stay with her husband at different places of his posting and whenever she used to come to her husband’s house, she requested the seller-opposite party to partition the case land along with the other land but every time he avoided the proposal tactfully. The co-sharer opposite party No. 5 lives inDhaka permanently with her husband. Recently when the pre-emptor put pressure upon the seller opposite party No. 4 to partition the case

(M A Wahhab Miha, J.)

land along with other land which she inherited from her parents, he was compelled to arrange a gharua baithak at his village home on 20.03.1998. In the said baithak the pre-emptor, her husband, the other co-sharer opposite party No.5 and her husband, the seller opposite party No.4, Md. Moniruddin Munshi (Najuk) Khandker Rezaul Haque, Khandker Badrul Islam, A.N.M. Nazmul Ehsan, Iftekharuddin Mollah and Nazrul Ahsan Mollah were present. In the said baithak when the pre-emptor raised the question of partition of the case land, the seller opposite party No. 4 in presence of the said persons disclosed that he had sold the same to Sultanduddin Bhuiyan, father of the pre-emptee opposite party Nos.1-3. On 20.03.1998 the pre-emptor for the first time came to know about the sale of the case land by the seller opposite party. Gharua baithak on the said date ended without any final decision of the partition of the land left behind by Abdul Malek Mollah. Subsequently, the pre-emptor after making search in the office of Sub-registrar at Araihazar and Sadar Sub-registry office, Narayanganj came to know about the sale deed in respect of the case land and obtained the certified copy thereof on April 6, 1998 and then came to know definitely about the transfer of the case land by the seller opposite party No. 4 to the pre-emptee opposite party Nos.1-3 and not to their father by the sale deed dated 06.06.1996 at a price of taka 15,000.00. The deed was registered in the office of Sub-registrar, Araihazar being deed No.2946; the registration of the deed was complete as per the provision of the Registration Act, the same having been recorded in book No.l, volume No.36. Before transfer, the seller opposite party No. 4 did not give any notice either to the pre-emptor or to opposite party No. 5 either in writing or verbally. Had the pre-emptor any knowledge about the transfer of the case land, she would definitely purchase the same. The seller opposite party was owner of the half of 13 decimals of land and the rest half was owned by the pre-emptor and opposite party No.5, but he transferred the entire case land secretly just to deprive the pre-emptor of her right of pre-emption. The pre-emptor is a co-sharer by inheritance in the case land, on the other hand, the pre-emptees are strangers therein and as such, the pre-emptor is entitled to pre-empt the case land and filed the application for pre-emption within 4(four) months from the date of knowledge of the transfer in question.

  1. 33.     

    (M A Wahhab Miha, J.)

    The miscellaneous case was contested by pre-emptee opposite party No. 3 by filing a written objection denying the material averments made in the application and stating, inter alia, that the land of S.A. plot No.2901 and R.S. Plot No.7585 belonged to Elahi Box and Abdul Malek Mollah in equal share. By amicable partition each of them got 13 decimals of land in their respective share and they possessed the same accordingly and in the R.S. khatian, the land of the case plot was recorded in eight annas share each in the name of Elahi Box and Abdul Malek Mollah; while Abdul Malek Mollah had been in possession of 13 decimals of land of the case plot, he died leaving behind a son (Opposite Party No. 4) by the first wife and a daughter by the second wife. By amicable settlement amongst the heirs of said Abdul Malek Mollah opposite party No.4 got 13 decimals of land of the case plot in his share and while he had been in possession thereof sold the same to opposite party Nos.1-3 by a kabala dated 06.06.1990 being kabala No.2946 and handed over possession of the same to them and since then they have been in possession thereof. After purchase, the opposite party Nos.1-3 had been cultivating the case land for 4 (four) years and then in 1994 raised the same by bringing earth by truck from Gazipur and Manoharer chak. On the raised land, the pre-emptees erected 4 (four) shop rooms. Of the 4 (four) shops one is two storied with pucca bhiti and tin roof and tin fencing, 3(three) other shops are with Dochala tin roof with tin fencing. There are also 4 (four) 1 (one) chala chhapra ghar and the pre-emptees have been possessing the case land by letting out the shops to the tenants. Moniruddin is the elder brother-in-law (husband’s elder brother) of the pre-emptor and Amajad, son of Moniruddin along with his partner Khokan used to deal in electric goods and power loom parts in a shop in the case land by taking the same on rental basis. The pre-emptor and the pre-emptees are of the same village. The houses of the father-in-law of the pre-emptor and her brother are in the same village and although the pre-emptor used to live with her husband at his place of posting, she used to come to the village to represent her husband once or twice a year and to look after her in-laws. The pre-emptor knew about the ownership of pre-emptees as well as the fact of development of the case land and erection of the shop rooms therein. At the time of purchase of the case land by the pre-emptees, they served notice upon the pre-emptor and she was aware of the notice and the sale. Before transferring the case land, the seller-opposite party also intimated the pre-emptor about the transfer in question and told her to purchase the case land, but she refused to purchase the same, then he was compelled to sell the case land to the pre-emptees. After purchase, the pre-emptees got their names mutated and paid rents. The pre-emptees spent about taka 3 (three) lakh in filling the land and taka 2 (two) lakh in erecting the shops in the case land. The pre-emptor having filed the case after 8 (eight) years from the date of transfer was not entitled to get any relief and the pre-emption application was liable to be rejected.

  1. 34.      During trial on behalf of the pre-emptor 4(four) witnesses were examined. Of the 4(four) witnesses, P.W.I is the husband of the pre-emptor. On behalf of contesting pre-emptee opposite party No. 3, 6(six) witnesses were examined including himself. The learned Assistant Judge by his order dated 17.06.1999 allowed the pre-emption application on the clear finding that the pre-emptor was an admitted co-sharer in the case holding; there was no defect of party and the application was filed within 4 (four) months from the date of knowledge of the transfer in question on 20th March, 1998 in the salish baithak wherein the seller opposite party disclosed that he had sold the land to the father of the pre-emptees.
  2. 35.      Being aggrieved by and dissatisfied with the order passed by the learned Assistant Judge, Araihazar, Narayanganj, the pre-emptee opposite party No.3 filed Miscellaneous Appeal No.33 of 1999 before the District Judge, Narayangonj and the learned Subordinate Judge who heard the appeal by his judgment and order dated 29.10.2000 allowed the same and set aside the order passed by the learned Assistant Judge holding that the pre-emption application was bad for defect of party and was barred by limitation as the same was filed after long 8 (eight) years from the date of the kabala under pre-emption.
  3. 36.     

    (M A Wahhab Miha, J.)

    Against the judgment and order of the appellate Court, the pre-emptor respondent filed Civil Revision No.5935 of 2000 before the High Court Division. A single Bench of the High Court Division after hearing the civil revision by judgment and order dated 25.01.2003 made the Rule absolute, set aside the judgment and order of the appellate Court and restored those of the learned Assistant Judge. Against the said judgment and order the pre-emptee appellants filed Civil Petition for Leave to Appeal No. 556 of 2003 before this Division and leave was granted to consider the submission of the learned Counsel for the appellants that

“there being no misreading o£ evidence, misconstruction of document and non-consideration of any materials by the court of appeal below, the High Court Division erred in setting aside the judgment of the court of appeal below. He also submits that the reasons given by the High Court Division for restoring the judgment of the trial court is not tenable in law and the court of appeal below having not committed any error of law resulting in an error in the decision occasioning failure of justice, the High Court Division erred in law in setting aside the said judgment. The learned Counsel lastly submits that there being no dispute that Abdul Malek Mollah and Elahi Bux were owners of the case plot and there being nothing on record to show that their Jama was separated and one of the heir of Abdul Malek Mollah having filed the instant pre-emption petition it is mandatory on his/her part to implead necessary parties under sub-section 2 of section 96 of the State Acquisition and Tenancy Act and in reversing the finding of the Court of appeal below on that point the High Court Division has not taken into consideration the aforesaid provisions of law.”

  1. 37.      Mr. Mahbubey Alam,  learned Counsel,  appearing for the appellants although initially tried to argue the point as to the defect of party in the pre­emption application, subsequently he gave up the point and mainly argued the point of limitation with all force at his command supporting the judgment of the appellate Court on the point.
  2. 38.      Mr. Kamal ul Alam, learned Counsel, appearing for the pre-emptor respondent, on the other hand, supported the finding given by the learned Assistant Judge on the point of limitation as endorsed by the High Court Division.
  3. 39.     

    (M A Wahhab Miha, J.)

    Since the learned Counsel for the appellants gave up the point of defect of party, I do not consider it at all necessary to dwell upon the same. However, it would suffice to say that admittedly the case land along with other land belonged to 2 (two) brothers, Abdul Malek Mol.lah and Elahi Box, the sons of late Karim Box and as per the admitted case of both the parties by an amicable partition the case land fell in the saham of Abdul Malek Mollah who died leave behind a widow, one son (the seller opposite party No.4) and two daughters, one being the pre-emptor and the other being opposite party No.5 (respondent No.3 herein). Thus, Elahi Box and his heirs had no subsisting interest in the case land. The Statute, namely, section 96 of the State Acquisition and Tenancy Act, 1950 (the Act) has given, a co-sharer tenant of a holding the right of prior purchase of a portion or share of a holding within 4(four) months of the service of notice given under section 89 of the Act, 1950, or if no notice has been served under section 89 of the Act within 4 (four)  months of the date of knowledge of the transfer. In the instant case, the pre-emptor is an admitted  co-sharer  in  the  case  holding.  The appellate  Court  also  has  not  given  any  finding  adverse to the pre-emptor’s right of co-sharership by inheritance in the case holding. Therefore, the only question to be decided in this appeal is as to whether  the  appellate  Court  was  justified  in rejecting the pre-emption application on the ground of limitation and whether the High Court Division was correct in setting aside the judgment and order of the appellate Court and restoring those of the trial Court.

  1. 40.      From the leave granting order it is apparent that leave was granted in a very wide compass to examine the submission made by the learned Counsel for the appellants that there being no misreading of evidence,  misconstruction  of  document  and  non-consideration  of any materials  by the  Court of appeal below,  the  High Court  Division erred in setting aside the “judgment of the Court of appeal”, I consider it necessary to see the pleading of the respective parties as well as the evidence adduced by them in support of their respective cases on the question of limitation.
  2. 41.      As already stated hereinbefore, the specific case of the pre-emptor was that she being the daughter of Abdul Malek Mollah, the owner of the case land had been  pursuing, the seller opposite party who had been enjoying and possessing the case land along with other land left by her parents to partition the same but he was not giving her dueshare and eventually a salish baithak was called for the purpose at the house of the seller on 20th. March, 1998 wherein he, for the first time, disclosed that he had sold case land to Sultanuddin Bhuiyan, the father of pre-emptees and then after obtaining the certified copy of the kabala under pre-emption on 06.04.1998 came to know definitely that the seller opposite party No.4 transferred the case land not to Sultanuddin Bhuiyan but to his sons, pre-emptee opposite party Nos.1-3 by a kabala registered on 06.06.1999 in the office of Sub-registrar, Araihazar, Narayangonj being kabala No.2946 at a price of TK.5,000.00. The kabala was registered under section 60 of the Registration Act on 09.09.1999 and then filed the pre-emption case in question on 27.05.1998 well ahead of the period of limitation. The further specific case of the pre-emptor was that before 20th of March, 1998 she had no knowledge about the transfer of the case land. It was also the definite case of the pre-emptor that no notice under 89 of the Act, 1950 was served upon her before the transfer of the case land. As against the said .case of the pre-emptor, the pre-emptee’s case was that written notice was served upon the pre-emptor before the transfer of the case land. Further case of the pre-emptee was that the house of the pre-emptor’s husband is in the same village and she used to visit her husband’s house oft and often to look  after  her  in-l

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