Appellate Division Cases
(Civil)
PARTIES
Md. Iftekher Uddin Bhuiyan …………..Petitioner.
-Vs-
Ranjit Kumar Saha & another………. Respondents.
JUSTICES
Md. Ruhul Amin CJ
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Md. Abdul Matin J
Judgment Dated: 3rd October 2007
The appellate Court held that the deed of exchange in question was entered into only to deprive the plaintiff of his right of pre-emption and the property of exchange was not equal in value. The areas of the properties exchanged are not same although both the properties are situated within the Municipal area. ………..(7)
Appellate Division held that the foundation for the prayer for pre-emption was well laid in the plaint itself and the High Court Division allowed the prayer for amendment rejecting various other please raised by the defendant opposing the amendment and the findings in the judgment in the revision and civil petition as well though in interlocutory matter are binding on the courts below. The High Court Division further held that the defendant in the suit did not state, who were the necessary parties in the suit as there was prayer for Preemption. The High Court Division also held that the plaintiff made specific assertion in the plaintiff that he was a co-sharer in each of the plots and to defeat his right of pre-emption the exchange deed was made……….. (8)
Mahbubey Alam, Senior Advocate instructed by Chowdhury Md. Zahangir Advocate-on-Record …………………..For the Petitioner
Mahmudul Islam, Senior Advocate instructed by Syed Mahbubur Rahman, Advocate-on-Record ……………………For Respondent No.l
Respondent No.2……………………. Not represented.
Civil Petition For Leave To Appeal No.412 of 2007
(From the judgment and order dated 03.08.2006 passed by the High Court Division in Civil Revision No.5101 of 2000.)
JUDGMENT
M. M. Ruhul Amin J: This petition for leave to appeal is directed against the judgment and order dated 03.08.2006 passed by the High Court Division in Civil Revision No.5101 of 2000 discharging the Rule.
2. The plaintiff instituted Title Suit No.86 of 1989 in the Court of Senior Assistant Judge, Narsingdi for declaration that the registered deed No.4999 dated 08.07.1989 in the office of the Sub-Registrar, Narsingdhi is not an exchange deed but the same is out and out a sale deed in respect of Kha schedule property of the plaint stating, inter alia, that the suit land originally belonged to one Sitanath Saha who died leaving three sons, Pran Gopal
Saha @ Khhshinath Saha, Atul Krishna Saha and Binoy Bushan Saha. The three sons of Shitanath by a registered deed of partition dated 13.04.1963 got their ancestral land partitioned. Pran Gopal got 23acres of land in his saham.
3. Subsequently, Pran Gopal died leaving behind five sons, including the plaintiff Ranjit Kumar Saha. They remained in the rd share of their predecessor Pran Gopal. The land was recorded in R.S. Khatian in the name of the plaintiff and his brothers and defendant No.2 who is the uncle of the plaintiff. The Suit Plot No.288 was allotted to defendant No.2. who sold it to Siddiqur Rahman and plaintiff got this land by way of pre-emption in
Miscellaneous Case No.88, 89 of 1986. The plaintiff being the eldest sons of Pran Gopal Saha was managing his own share of land and also the shares of his brothers after the death of his father from 10.01.1976. Defendant No.2 encroached upon .03 acres of land and erected structures therein, the plaintiff and his nephew brought Title Suit No. 126 of 1986 on 25.11.1986 against the defendant No.2 for partition in the Court of Subordinate
Judge(now Joint District Judge), Narsingdi. The defendant No.2 collusively executed a registered deed of exchange in favour of defendant No.l on 08.09.1989 for the suit property. The deed of exchange deprived the right of preemption of the plaintiff. The plaintiff then instituted the instant suit for a declaration that the deed of exchange in question was an out and out deed of sale. The plaintiff got amended the plaint by a judgment dated 22nd August, 1995 passed in Civil Revision No. 1677 of 1990 and added a prayer for decree for pre-emption in the suit property.
4. The defendant No.l contested the suit by filing a written statement denying the material allegations made in the plaint. The further case is that the suit is barred by limitation and the defendant No.2 never dispossessed the plaintiff from .03 acres of land. The defendant No.l exchanged the suit land comprising an area of A5lA acres in exchange of 27lA
acres of land by a registered deed of exchange and the defendant No. 1 has been possessing the same on mutating his name. He also developed the land. The prayer for pre-emption is barred by limitation and not maintainable for defect of parties.
5. The trial Court dismissed the suit. On appeal being Title Appeal No.34 of 1996 the appellate Court allowed the appeal. The defendants then moved the High Court Division in revisional jurisdiction and obtained Rule which after hearing was discharged.
6. We have heard Mr. Mahbubey Alam, the learned Counsel for the petitioner and Mr. Mahmudul Islam, the learned Counsel for respondent No.l and perused the judgment of the High Court Division and other connected papers.
7. The appellate Court held that the deed of exchange in question was entered into only to deprive the plaintiff of his right of pre-emption and the property of exchange was not equal in value. The areas of the properties exchanged are not same although both the properties are situated within the Municipal area.
8. The learned Counsel for the petitioners submit that the prayer for pre-emption is barred by limitation as the plaint was amended on 22.08.1995 in the civil revision and the proceeding of the suit was stayed till 28.01.1996 and the deposit as made on 29.01.1996 is not within the period of limitation. The High Court Division held that the Rule in Civil Revision was made absolute on 22.08.1995, thereafter the amendment of the plaint was noted on 01.01.1996. There was a civil petition for leave to appeal and the proceeding of
the suit was stayed. The deposit of consideration money was made on 29.01.1996. As the plaint was amended on 22.08.1996 and noted in the suit on 01.01.1996 and the proceeding of the suit was stayed till 28.01.1996, the deposit having been made on 29.01.1996 is within the period of limitation. The High Court Division further held that the Appellate Division held that the foundation for the prayer for pre-emption was well laid in the plaint itself and the High Court Division allowed the prayer for amendment rejecting various other please raised by the defendant opposing the amendment and the findings in the judgment in the revision and civil petition as well though in interlocutory
matter are binding on the courts below. The High Court Division further held that the defendant in the suit did not state, who were the necessary parties in the suit as there was prayer for Pre-emption. The High Court Division also held that the plaintiff made specific assertion in the plaintiff that he was a co-sharer in each of the plots and to defeat his right of preemption the exchange deed was made.
9. In view of the discussion made above, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision.
10. Accordingly, the petition is dismissed.
Source : V ADC (2008),665