Appellate Division Cases
Md. Mosharraf Hossain………………………….Appellant.
Daulat Ahmed and ors ………………………….Respondents.
Md. Ruhul Amin. J
Syed J.R. Mudassir Hussin. J
Abu Sayeed Ahammed. J
JUDGEMENT DATE: 7th July 2002
The Evidence Act, Section 91, 92.
Abdur Rashid Vs. Momtaz Ali Karikar 44 DLR (Ad), 270. 51 CWN, 644.
When the terms of a contract or of a grant, or of other disposition of property,
have been reduced to the form of a document no evidence shall be given in proof of the terms except the document itself, or its secondary evidence where permissible…………………(14)
Judicial authorities on the question of exclusion of oral evidence by documentary
evidence, and it is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the intention of the parties thereto……………….. (14)
Pre-emptors examined 4 witnesses including one of the pre-emptors. we have
already considered the evidence brought on record by the pre-emptors and have arrived at the finding that pre-emptors failed to establish that the transaction was not an exchange but out and out a sale and that parties to the transaction did not part with the possession of their respective property. So the ratio of the case referred to from the side of the respondent is of no help in any respect……………………….(17).
Civil Appeal No. 12 of 1998 (From the Judgement and Orde dated 26th August, 1997 passed by the High Court division in Civil Rivision No. 2801 of 1994 )
Khondkar Mahbitbuddiii Ahmed, Senior Advocate, instructed by Md. Aftab Hossain,
Advocate-on-Record…………For the Appellant
Ozoir Farooq, Senior Advocate, instructed by Md. Nawab AH, Advocate-on-Record For………….Respondent Nos. 1-3
Ex-parte …………. Respondent Nos. 4-5
1. Md. Ruhul Amin, J:- This appeal, by leave, by the pre-emptee against the judgment
and order of August 26, 1997 passed by a single Bench of the High Court Division in Civil Revision No. 2801 of 1994 making the Rule absolute. The Rule was obtained against the judgment and order of July 17, 1994 of the court of the District Judge, Lakshmipur in Miscellaneous Appeal No.2 of 1993 allowing the same and thereupon setting aside the judgment and order of November 29, 1992 of the Court of Assistant Judge, Ramganj, Lakshmipur, in Miscellaneous case No.l of 1992 allowing the same. The Miscellaneous case was filed under section 96 of the State Acquisition and Tenancy Act, 1950.
2. Pre-emptor respondents No. 1-3 filed Miscellaneous case No.l of 1992 seeking preemption of 2’/2 decimals of land transferred to the pre-emptee appellant by the respondent No. 4 by the kabala executed on 21.11.1991 and registered on 24.02.1992 claiming co-share ship in the disputed holding by purchase. It was the case of the pre-emptors that to defeat the claim of pre-emption pre-emptee appellant and the
respondent No.4 collusively described the deed of transfer as one of exchange instead of sale deed, though in fact same was nothing but a colorable transaction upon showing exchange of ‘ka’ schedule land in favour of pre-emptee for ‘kha’ schedule land in favour of the respondent No. 4. It was the positive case of the pre-emptor the transaction was in effect not an exchange as camouflaged, rather it was an out and out sale.
3. The prayer for pre-emption was opposed by the pre-emptee appellant and respondent
No.4 (Opposite Party Nos.l and 2 in the Miscellaneous case respectively) asserting in
the written objection amongst others that the transaction was an exchange and not a sale.
4. In the background of the contentions of the respective party question came up fro cn sideration whether transaction between the pre emptee appellant and the respondent No.4
sought to be pre empted was a sale or an exchange.
5. The learned Assistant Judge allowed the prayer for preemption by the judgment and
order as mentioned hereinbefore on the finding that the transfer between the pre emptee appellant and the respondent No.4 was an out and out sale and not an exchange as claimed by the pre emptee appellant and that the document was described as an exchange deed to defeat the right of pre emption.
6. On appeal by the opposite party Nos.l and 2 (appellant and respondent No.4 respectively) the learned District Judge reversed the judgment and order of the learned Assistant Judge and dismissed the Miscellaneous Cases.
7. The pre-emptor (respondent Nos. 1-3 ) took revision, civil Revision No. 2801 of 1994 ,
against the judgment and order of the learned District Judge, and a learned Single Judge of the High Court Division by the judgment and order as stated hereinbefore set aside the same and restored the judgment and order of the court of Assistant Judge upon making the rule absolute.
8. Leave was granted to consider the submissions whether High Court division acted
illegally in upholding the view taken by the trial court in respect of the disputed document without at all considering the reasoning given and findings made by the court of appeal below in that behalf and without reversing such findings and that in view of the principle of law laid down by this Division as to inadmissibility of oral evidence to construe a document, the High Court Division erred in restoring the trial court order for pre emption based on construction of registered deed of exchange “to be in fact a sale
9. The High Court Division made the rule absolute upon observing. “From the evidence as discussed above it appears that the ‘ka’ and ‘kha’ schedule lands are not only not close to one mother rather they belonged to two different mouzas under two different
pourashavas and the character of the land is also different one being a portion of the pond while the other is a bite land by the side of a canal and from being chunk of land possession of a small fraction was allegedly hand over without there being any actual measurement P.Ws 2 and 4 having said that there was in fact a sale and not an exchange between Mosharraf Hossain and Sree Partha Banik and most importantly there is an element of exchange of money as consideration instead of exchange of land with land and having considered all the evidence in detail and the trial court having had the opportunity of seeing the demeanor of the witnesses believed the case of petitioners that the alleged transfer was an out and out sale the opposite party No. 1 and 2 resorted to a cleaver device to describe and characterized the said deed as one of exchange instead of a kabala or a sale deed with a view to defeating the right of pre emption.”
10. The learned Counsel for the appellant has submitted that the High Court Division on a
total misreading of the evidence of P.W.s 2 and 4 and that without considering at all the reasoning given and findings made by the Court of appeal below as regard the document transaction where under sought to be pre-empted and without reversing the said findings and decision of the court of appeal below has upheld the view taken by the trial Court in respect of the document in question.
11. In elaboration the aforesaid submissions the leaned counsel has referred to the evidence of P.Ws. 2 and 4. The evidence of P.W. 2 is of hearsay nature and as such the same has no evidentiary value in the eye of law. The evidence of P.W. 4 is of the kind of P.W.2 as regard the disputed document. These witnesses have not said any thing
about passing of money as the consideration for the transaction by the questioned document P.W.I has stated that he has no knowledge about the payment of money in connection with the transaction. The evidence of P.W.I does not show with certainty that the document in question is not a deed of exchange . P.w 3 although stated in chief that he eared from pre emptee that opposite party No.2 (respondent No.4) sold the ‘ka’ schedule land to him but in cross examination he has stated that at the time of execution
and registration of the disputed document he was not present and that he was no idea
about payment of money in connection with transaction. The witness is not corroborated by any other witness about disclosing by the pre emptee that he purchased ‘ka’ schedule land from respondent No.4. P.W. 2 has stated that he heard about the disputed document from some one else and that he has no personal knowledge about the disputed document, nor has read the deed in question. P.W. 1 has not been corroborated by any other witness as to nature of the transaction claimed by him.
12. In the background of the evidence as discussed hereinabove, the appellate court
arrived at the finding that pre-emptors failed to establish that the disputed document is an out and out sale deed and that not a deed of exchange.
13. The learned counsel for the respondent Nos.1-3 in the background of the nature of the
evidence of PWs although tried to support the judgment of the High Court Division but ultimately failed to support the judgment of the High Court Division as made by the said
Division placing reliance on the evidence of P.Ws. 2 and 4. It may be mentioned that P.W.2 in his chief has stated that he heard from some one that ‘ka’ schedule land has been sold by opposite party No.2 (respondent No.4) to the opposite party No.l (appellant) and in crossexamination has stated that he has no personal knowledge about the transaction. Thus the evidence of P. W.2 is nothing but of hearsay nature and this aspect of the evidence of the said witness has not been noticed by the High Court Division, rather misread the evidence of P.W.2 as regard the nature of transaction between appellant and respondent No.4. Evidence of P.W. 4 is contradictory in nature and that evidence of said witness is in no way of positive nature as regard the nature of disputed document as claimed by the pre emptor and as such the High Court Division was in serious error in
reversing the judgment and order of the Court of appeal below which was made on correct consideration of evidence of the parties. It may be mentioned it has been contended on behalf of the appellant that High Court Division has reversed the judgment and order of the appellate court without reversing the reasoning given by the appellant court below while setting aside the judgment and order of the court of first instance. The said content in of the appellant to us appears of substance as has already been seen that the High Court Division on misreading of the evidence of P. Ws. 2 and 4 made finding
as regard the kind of the document in question as deed of sale although evidence of P. W.2 was of hearsay nature and the evidence of P. W.4 was of contradictory nature and not positive in nature in any respect.
14. The other submission of the learned counsel for the appellant is that the High Court
Division was in error in over looking the established principle of law relating to in admissibility of oral evidence to contradict the contents of the document in view of the provision of sections 91 and 92 of the Evidence Act and out sale. In support of the aforesaid submission the learned counsel has referred to the case of Feroza Majid Vs. Jiban Bima Corporation reported in 39 DLR (Ad), 78. In the reported case from the side of the appellant it was contended that the deed Ext. I was in fact not a sale deed but was a mortgage deed. It may be mentioned recital in ext. 1 was that the vendor on receipt of the consideration executed the sale deed and delivered possession of the land to the vendee. It was contended by the vendor that the deed was intended to be a mortgage deed in order to become a director of the company he had to purchase the quantifying share of Tk.
30,000/- but as he could not procure that money he executed the deed as a mortgage deed on condition for reconveryance if and when the mortgage money was paid. But nothing of that sort was mentioned anywhere in the deed, Ext. 1 and the said claim was entirely rested upon oral evidence of the vendor. In the background of the aforesaid fact in the reported case it has been observed, “oral or extraneous evidence to contradict the terms of the contents of a document is inadmissible under Section 92 of the Evidence Act Section 91 of the Evidence Act provides that when the terms of a contract or of a grant, or of other disposition of property, have been reduced to the form of a document no evidence shall be given in prdfof of the terms except the document itself, or its secondary evidence
where permissible, Section 92 of the Evidence act which is in Fact the continuation., of Section 91 prohibits the consideration of any oral or extraneous evidence to contradict the
terms of an instrument when it is proved under Section 91, subject, obscures, to certain exceptions. There is uniformity of judicial authorities on the question of exclusion of oral evidence by documentary evidence, and it is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the intention of the parties thereto.” It may be mentioned in the instant case there was no presence of any of the exceptions as are in section 92 of the Evidence Act.
15. The learned Counsel for the respondent Nos. 1-3 in support of his submissions that in
case of seeking pre-emption in the background of some kind of exceptional fact then in such a case to ascertain the real nature or kind of the transaction party in the proceeding may lead evidence to show the real nature of the transaction and the court is quite competent to go into the nature of the transaction or in other words is competent to determine the nature of the transaction. In support of the aforesaid contention the learned Counsel has referred to the case of Abdur Rashid Vs. Momtaz AH Karikar and others
reported in 44 DLR(Ad), 270 . In the reported case transaction took place through a
Muktipatra and when the pre-emption was sought the pre emptee pleaded that no transfer
took place by the Muktipatra since he purchased the land sought to be pre-empted in the
benami of the executant of the Muktipatra and that on a request by him, he executed the deed of release.
16. The facts of the aforesaid case was that trial court rejected the prayer of pre-emption.
The court of appeal below on the finding that executants of the Muktipatra was not the
benamder and that the deed of release was out and out a sale deed allowed pre-emption. On revision the High Court Division placing reliance upon the recital in the Muktipatra held that the document was a deed of release and that by the said deed the executants there merely released the land which was purchased in the benami of the executants of the executants of the deed by the pre-emptee of transfer and thereupon set aside the judgment of the appellate Court. The High Court Division while setting aside the judgment of the appellate court placed reliance upon the case reported in 36 DLR (AD), 1, although the fact of the case was quite different from the fact of the case that was
before the High Court Division for disposal. In the reported case it was held, “that the question of benami nature of a kabala on the basis of which pre emption is claimed can not be gone into and determine in proceeding for pre-emption. But if the pre-emption is sought to be registered on the ground that no transfer took place under the relevant kabala, in that vendor did not part with his possession but simply made a show of transfer for any purpose, such as, put away his creditors, as in the case reported in 51 CWN, 644. then such a transaction whether it is called “Benami” or colorable, may be gone into.”
17. In the instant case pre-emptor’ case was that the transaction between the opposite party No.) (pre-emptee) and opposite party No. 2 (2ncl party in the deed of exchange) was not an exchange but an out and out sale and in support of the said case the pre-emptors examined 4 witnesses including one of the pre-emptors. we have already considered, the evidence brought on record by the pre-emptors and have arrived at the finding that pre-emptors failed to establish that the transaction was not an exchange but out and out a sale and that parties to the transaction did not part with the possession of
their respective property. So the ratio of the case referred to from the side of the respondent is of no help in any respect.
18. In the background of the discussion made hereinabove we find merit in this appeal.
Accordingly the same is allowed. The judgment and order of the High Court division dated August 26, 1997 in civil Revision No. 2801 of 1994 is set aside and the judgment and order dated July 17, 1994 of the court of District Judge, Lakshmipur, in
Miscellaneous Appeal No.2 of 1993 is restored. The prayer for pre-emption is rejected.
There is no order as to costs.
Source: I ADC (2004), 445