Abdul Hakim Siddique Vs. Mst. Shakhina Bewa & ors., 2018(1) LNJ 170

Case No: Civil Revision No. 3278 of 2012 with Civil Revision No. 3266 of 2012

Judge: Md. Nuruzzaman, J.

Court: High Court Division,

Advocate: Mr. Md. Kadom Ali Mollick, Advocate, Mr. Mir Mahfuzur Rahman,

Citation: 2018(1) LNJ 170

Case Year: 2017

Appellant: Abdul Hakim Siddique

Respondent: Mst. Shakhina Bewa and others

Subject: Transfer of Property Act & Evidence Act

Delivery Date: 2018-06-02

19.      Under the facts and circumstances of the case and for the reasons stated above, we find no merit in the rule.

20.      Accordingly, the Rule is discharged without any order as to cost.

21.      Order of stay granted at the time of issuance of the rule is hereby vacated.

22.      Facts and circumstances of the cases referred by learned Advocates for the petitioners are quite distinguishable from the facts and circumstances of the case in hand.

23.      Send down lower court records alongwith a copy of this judgment to the court concern at once. 

Ed.

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Nuruzzaman, J.

 

Judgment on

24.08.2017

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Abdul Hakim Siddique

. . . The Petitioners

-Versus-

Mst. Shakhina Bewa and others

. . . The Opposite Parties

Transfer of Property Act (IV of 1882)

Sections 118 and 119

State Acquisition and Tenancy Act (XXVIII of 1951)

Section 96

In the facts and circumstances of the cases in hand, it is obviously visible that though both deeds in question are registered but object and true nature of the deed clearly found deceptive. Therefore, this court are of the view that registration of Ewaz does not reflect in its true perspective rather to infringe and defeat the statutory right of the pre-emptor. In above backdrops the exhibit-3/Ga deed of Ewaz dated 18.01.2000 does not come within the legal and lawful objective as a Ewaz deed, rather, clearly it has been created with a purpose to defeat the statutory right of the pre-emptor.                   . . . (41)

Evidence Act (I of 1872)

Section 92

The maxim of the decision of the Joinal Abedin Molla’s case is that oral evidence is inadmissible to vary the contents of document but in the present case not challenge the contents of the documents but nature of transaction which object was to defeat the statutory right of the co-sharer. Therefore, the co-sharer challenged the nature of the transfer in that view of the matter the facts and circumstances of the present case is hit by the proviso (1) of the section 92 of the Evidence Act, 1872. My considered view is that section 92 does not preclude a party from showing that the writing was not really the contract between the parties, but it was only a fictitious or colorable device which cloaked something else. In such a situation of a particular case oral evidence is admissible to show that an agreement was only a sham or nominal transaction and was not intended to be acted upon or to show that a written agreement for the conveyance of property was only a fictitious exchange to defeat and infringe the statutory right to other.        . . .(44 and 48)

Evidence Act (I of 1872)

Sections 91 and 92

When a document is meant merely on an informal memorandum of transaction and not as a document embodying disposition of property, oral evidence is not excluded. So, I am of the view that there is no bar in the section 91 and 92 of the Evidence Act to adduce the parol evidence to show notwithstanding the recital of exchange not to its true perspective nature and object in a document.           . . . ( 51)

Shafi Khan Vs. Mannujan Hossain, wife of a A.Z.M. Delwar Hossain Advocate and others, 35 DLR (AD) 225; Alfazuddin Mollah and others Vs. Md.Almas Chokder and another, 56 DLR (AD) 179; Joynal Abedin Molla Vs. Aliar Rahman and others, 3 BLD 1983 (AD) 105; Kurshid Ali and others Vs. Nurjahan Bewa and others, 15 BLD (AD) 82; PLD 1960 (Lahore) 231, AIR 1936 (PC) 70, AIR 1958 (SC) 15; 15 BLD (AD) 82; 3 BLD (AD) 105 ref.

Mr. Md. Kadom Ali Mollick, Advocate

. . .For the Petitioner

Mr. Mir Mahfuzur Rahman with

Mrs. Fara Mahmuda (Shilpi), Advocates 

. . .For the Opposite party No.1

JUDGMENT

Md. Nuruzzaman, J. These two Rules were issued on two applications under section  115(1) of the Code of Civil Procedure against the single Judgment dated 10.06.2012 passed by the learned Joint District Judge, 2nd Court, Tangail, in Other Class Appeal No. 73 of 2012 and Miscellaneous Appeal No. 26 of 2011.

2.            The materials facts, relevant for disposal of the Rules, succinctly, are that, the petitioner as pre- emptor filed the Pre-emption Miscellaneous Case No. 43 of 2000 for pre-emption and other suit No.76 of 2000 of the same suit land for declaration, stating, inter-alia, that the suit plots measuring .67 acres along with others of Vadrabari Mouja of Police Station-Ghatail, originally belonged to Abdul Goni Siddique and his wife of Somedon Nesa. Abdul Goni Siddique died leaving his only wife Somedon Nessa. However, he had two sons namely Abdus Sattar and Abdul Mozid who died earlier in the hand of Abdul Goni. Somedon Nessa on 07.04.1960 by a registered Oshiatnama distributed her land to her two alive sons Abdul Latif, Monir Uddin and daughter Rawshan Ara, grand son Abdul Hakim Siddique and grand daughter and others. The plaintiff in this way got a portion of the suit property; the vendor opposite party No. 2 also got the suit property by a deed of Hiba-beel-Ewaj from Somedon Nessa. The daughter’s of Abdus Sattar Siddique gifted their portion to the plaintiff and opposite party Nos. 2 and 3. The plaintiff petitioner in this way became Co-sharer of the suit jote by way of inheritance. The Opposite Party Nos. 1 and 2 knowing fully well all the facts as stated hereinabove in order to defeat the right of pre-emption of the petitioner, the opposite party No. 2 vendee secretly created a deed of exchange dated 18.01.2000 in the name of the opposite party No. 1. In fact, the said deed of exchange is out and out a sale deed because there is no transaction of consideration in between the parties and no possession was hand over. Hence, the plaintiff instituted the suit for declaration to the effect that deed of exchange in fact out and out sale deed. Therefore, he filed the pre-emption Miscellaneous Case for pre-emption of the .67 acres of land which was transferred vide so-called deed of exchange dated 18.01.2000.

3.            The opposite party No. 1 herein as defendant No. 1 contested the suit and opposite party No. 1 in the pre-emption Miscellaneous Case by filing written objection denying all material averments made in the suit and the application for pre-emption. He contended inter-alia, that the plaintiff got no property by dint of Oshiatnama dated 07.04.1960 of Somedon Nessa. It has narrated in the written statement that the plaintiff neither Co-sharer by inheritance in the suit plot nor he has accrued any right to file the pre-emption case against the defendant-opposite-parties. It has further narrated that the pre-emptor is the son of Abdus Sattar Siddique who is son of Abdul Goni Siddique, facts remain that Abdus Sattar Siddique died earlier in the hand of Abdul Goni Siddique before promulgation of the Muslim Family laws Ordinance,1961 came to being and, as such, he got no property by inheritance. Two sons of Somedon Nessa namely Monir Hossain and Abdul Latif sold their portion to one Mojibor Rahman who subsequently sold the same to Mahmudua wife of Mojibor Rahman. Mofizur Rahman son of Mojibor Rahman on 30.01.1995 gifted .47 acres to the opposite party No. 2. Mahmuda also sold .20 acres of land to the opposite party No. 2 on the same day. In this way .67 acres of schedule land got by the defendant-opposite party No. 2. The suit land is not fertile land and it was homestead appertaining to plot No. 88. Subsequently, plot Nos. 86, 87 and 88 were made plain land by earth filling, the land of plot No. 116 of schedule 2 measuring .34 acres is fertile land their valuation of those are same. The opposite party No. 1 for the better enjoyment made deed of exchange with the opposite party No. 2 executing exchange deed dated 18.01.2000 in respect of .67 and one 19.01.2000 in respect of .34 acres.

4.            The opposite party No. 1 went to possession and erected a house on plot No. 88. Subsequently, opposite party No. 2 sold .34 acres of schedule-2 land to the opposite party No. 1. The defendant has been possessing and enjoying totally 1.1 acres of land by two deeds. Hence, the pre-emptor has no right to file the application for pre-emption and, as such, the same is liable to be dismissed with cost.

5.            The trial Court, however, heard the Other Class Suit No. 76 of 2000 and Pre-emption Miscellaneous Case No. 43 of 2000 analogously and disposed of by the instant single Judgment and decree dated 27.03.2011. Therefore, I am of the view that it is not necessary to reiterates the case of both the parties again and again.

6.            At the trial at the instance of the pre-emptor an application for analogous/simultaneous hearing was filed to dispose of Other Class Suit No. 76 of 2000 with Pre-emption Miscellaneous Case No. 43 of 2000 which was not opposed by the other sides. Hence, the trial Court heard both the cases analogously.

7.            Having the same facts in the Suit and Miscellaneous Case save and except relief sought in prayer, the learned Judge of the trial Court framed the following issues:

(1)   Is the suit is maintainable in the present form and manner ? 

(2)   Whether or not the suit is bad for defect of parties ?

(3)   Is the suit is barred by law of limitation?

(4)   Whether deed of exchange can be declared as out and out a sale deed ?

(5)   The plaintiff whether has accrued any right to file the pre-emption case in accordance with law ?

(6)   The plaintiff either can get the relief as sought for ? 

8.            To prove the facts of both the cases Abdul Hakim Siddique deposed as PW-1, Mr. Anisuzzaman Siddique as PW-2, Md. Tufazzal Hossen P.W-3 , who were cross-examined by the learned counsel of the opposite parties.

9.            On behalf of the opposite parties, 3 witnesses were examined. O.P.W-1 Md. Shafiqul Islam, O.P.W-2 Md. Shamsul Alam and O.P.W-3 Golam Hossen who were cross examined by the learned counsel of the pre-emptor. 

10.        The learned Assistant Judge, after appreciating the materials on record by his Judgment dated 27.03.2011 decreed the other class suit No. 76 of 2000 against the defendant No.1 on contest and against rest ex-parte declaring deed of exchange dated 18.01.2000 being deed 483 is sale deed and thereby allowed the Pre-emption Miscellaneous Case No. 43 of 2000 against the pre-emptee No.1 on contest and ex-parte rest of the opposite parties.

11.        It further ordered that in a suit land by dint of pre-emption in place of opposite party purchaser, the petitioner would get right, title and possession. The Opposite party No. 1 is entitled to have withdraw the purchase value with compensation in accordance with law from the pre-emption Miscellaneous Case No. 43 of 2000 and the Judgment pronounced by the Court would be treated as the Judgment in pre-emption Case No. 43 of 2000.

12.        Being aggrieved by the Judgment and decree dated 27.03.2011 the defendant No. 1 as appellant preferred the Title Appeal No. 73 of 2011 against the said judgment and decree in the Court of District Judge, Tangail.

13.        The Opposite party No. 1 being aggrieved by the Judgment and order dated 27.03.2011 passed by the Assistant Judge, Ghatail, Tangail in Pre-emption Miscellaneous Case No. 43 of 2000 preferred the Miscellaneous Appeal No. 26 of 2011 in the Court of District Judge, Tangail.

14.        The learned District Judge, Tangail, eventually, transferred the Title Appeal No. 73 of 2011 and Miscellaneous Appeal No. 26 of 2011 to the Court of Joint District Judge, Tangail for disposal and hearing. The learned Joint District Judge, 2nd Court, Tangail heard Other Appeal No. 73 of 2011 and Miscellaneous Appeal No. 26 of 2011 simultaneously and by his Judgment dated 10 June 2012 reversed the Judgment and decree dated 27.03.2011 passed by the learned Assistant Judge, Ghatail, Tangail in pre-emption Miscellaneous Case No. 43 of 2000 and thereby allowed the Title Appeal No. 73 of 2011 and Miscellaneous Appeal No. 26 of 2011.

15.        Feeling aggrieved by the Judgment and decree dated 10.06.2012 passed by the Joint District Judge, 2nd Court, Tangail in Other Class Appeal No. 73 of 2011 the respondent as petitioner preferred the Civil Revision No. 3266 of 2012 and obtained the instant Rule’s with an order of stay.

16.        The pre-emptor respondent being aggrieved as petitioner preferred the instant Civil Revision before this Court against the judgment and order dated 27.03.2011 passed by the Joint District Judge in Miscellaneous Appeal No. 26 of 2011 and obtained the instant Rule and order of stay. 

17.        Be that as it may, the facts and circumstances of both the revision applications the learned Advocates of the respective parties hear both the revisions before this Court simultaneously. Therefore, to avoid the conflicting decision I feel to pass a single Judgment in the Civil Revision No. 3266 of 2012 and Civil Revision No. 3278 of 2012 which would be governed both the Rules.

18.        Mr. Md. Kadom Ali Mollick, the learned Advocate appearing on behalf of the petitioners in both the Civil Revisions. Mr. Mollick has submitted that the Court of appeal below without considering the facts and circumstances and settled principles of law erroneously allowed the appeals upon misconception of law holding that the contents of a documents should not be challenged in a suit, as the recital of the deed is written which cannot be set aside by giving oral evidence and thereby the learned Judge of the Court of appeal below committed an error of law resulting in an error in the decision occasioning failure of justice.

19.        He has further added that the learned Judge of the Court of appeal below committed serious mistake in law holding that the disputed deed of exchange dated 18.01.2000 has been executed and registered as exchange deed its true nature and object would not be reversed by oral evidence and thereby committed an error of law resulting in an error in the decision occasioning failure of justice.

20.        He has also submitted that the learned Judge of the Court of appeal below failed to apply her judicial mind in the facts and circumstances that subsequently, the opposite party No. 2 who got .034 acres of land by way of so called exchange of the suit land sold the same on 23.05.2000 to the defendant No. 1(pre-emptee) showing nominal price which is less than of the exchange deed dated 18.01.2000 and marked as exhibit Uma, so it is clearly visible that the earlier disputed exchange deed between the same parties was not a actual exchange, rather, in the name of exchange deed, it was a colourable transfer instead of sale in the form of exchange in order to defeat the plaintiffs’/petitioner’s right and titlement to file the pre-emption case and thereby committed an error of law resulting in an error in the decision occasioning failure of justice.

21.        He has in the same breath pointed that the learned Judge of the Court of appeal below did not follow the provision of the Rule 31 of order 41 of the Code of Civil Procedure which is flagrant violation of law in passing the Judgment and decree for which judgment of the Court of appeal below is tainted due to violation of the aforement provision and thereby the learned Judge has committed serious error of law resulting in an error in the decision occasioning failure of justice.

22.        He has also pointed that the learned Judge of the trial Court after appreciating the oral evidences of both the parties as well as documentary evidences found that the disputed deed of exchange (exhibit 3/Ga) has been created as a mere paper transaction and expression therein also papers expression which actually not a deed of exchange rather, colourable transfer in the form of exchange deed only to defeat the right of pre-emption of the pre-emptor. Therefore such transfer of exchange is nothing but a sale deed behind the back in the name of the exchange deed, however, the learned Judge of the Court of appeal below without sifting the evidences available on record derived at a wrong decision which calls for interference by this Court.

23.        In support of his contentions cited some precedents i.e. to  the case of Shafi Khan Vs. Mannujan Hossain, wife of A.Z.M. Delwar Hossain Advocate and others reported 35 DLR (AD) 225, to the case of Alfazuddin Mollah and others Vs. Md. Almas Chokder and another reported 56 DLR (AD) 179.

24.        On the other hand, Mr. Mir Mahfuzur Rahman with Mrs. Fara Mahmuda the learned Advocates appearing on behalf of the Opposite Party No. 1 in both the revisions.

25.        The opposite party No. 1 contested in both the Rules by filing counter affidavits contending, inter alia, that the Ewaj deed dated 18.01.2000 was made in accordance with law giving land in exchange of each other, so the allegation as has been brought by the petitioner that the deed of Ewaj is a mere paper transaction and it is out and out a sale deed is beyond the pleadings and materials on record. The learned Joint District Judge, of the Court of appeal below thus, observed that h¡c£ fr 18/01/2000 a¡¢l­M  e¡¢mn£ HJu¡S c¢mm Bc¡m­a c¡¢Mm L­l­Rz Eš² c¢mm fkÑ¡­m¡Qe¡u ®cM¡ k¡u ®k e¡¢mn£ c¢mm¢V HJu¡S c¢mm ¢q­p­h pÇf¡cef§hÑL ®l¢S¢øÌ q­u­Rz e¡¢mn£ c¢mm¢V ®k­qa¥ HJu¡S c¢mm ¢q­p­h pÇf¡cef§hÑL ®l¢S¢øÌ q­u­R j­jÑ ®cM¡ k¡u ®p­qa¥ ®j±¢ML p¡rÉ à¡l¡ Eš² c¢m­ml  “Contents”  f¢lhaÑe Ll¡ k¡­h e¡z

26.        Therefore, the learned Judge further holds and dismissed the suit on finding that e¡¢mn£ c¢mm¢V ¢hœ²u c¢mm ®pV¡ h¡c£fr B­c± fÐj¡Z Ll­a prj qu¢ez

27.        Mr. Rahman has further added that the plaintiff is not a Co-sharer in the suit land because the suit land belonged to Abdul Goni Siddique nor Somedon Nessa. The father of the plaintiffs-pre-emptor died before his father Abdul Goni therefore, the plaintiff does not inherence the property of his father. More-so, according to Mr. Rahman, Somedon Nessa has no locus-standi to make Oshiatnama in favour of his 02 (tow) sons Monir Uddin,  Abdul Latif, daughter Rowshan Ara, his grandsons and granddaughters. Therefore, it is apparently proved that the plaintiff in other word the pre-emptor is not a Co-sharer by inheritance in the suit land or by purchase. Therefore, the Court below in violation of the settled principles of granting pre-emption allowed the Pre-emption Miscellaneous Case which was rightly reversed by the Court of appeal below discussing the evidence and giving cogent reasonings and findings and, as such, there is no occasion calling necessity to interfere in the impugned Judgment and decree of the Court of appeal below.

28.        He has pointed that the Court of appeal below rightly found that when a registered deed has been executed and registered in accordance with law the contents of the documents cannot be discarded, in other word, no contrary view would be taken that it was not a deed of exchange for to hold that it is out and out a sale deed. The plaintiff has miserably failed to prove in accordance with law such a facts beyond the shadow of reasonable doubt, therefore, under revisional jurisdiction no interference calls for by this Court.

29.        Mr. Rahman in a same breath has argued that the Court of appeal below is the last and final Court of facts so, the findings of fact of the Court of appeal below unless perverse cannot be disturbed in revisional jurisdiction under section 115(1) of the Code of Civil Procedure. Therefore, according to him both the Rules are liable to be discharged affirming the Judgment and decree of the Court of appeal below. 

30.        Mr. Rahman took us through a Judgment of the Appellate Division i.e. to the case of Jaynal Abedin Molla Vs. Aliar Rahman & others reported 3 BLD 1983 (AD) 105 and argued that according to the principles enunciated by the apex Court in the referred case no evidence is admissible to vary the contents of the documents by any oral evidence therefore, the Court of appeal below very rightly reversed the judgment and decree of the trial Court which does not call for any interference under the revisional jurisdiction.

31.        He has also referred to the case of Kurshid Ali and others Vs. Nurjahan Bewa and others reported 15 BLD (AD) 82 and argued that the Court of appeal below rightly found that the learned Judge of the Court below did not convincingly discuss the evidences on record. Therefore, warranted no interference by this Court. He has prayed for discharging both the Rules.

32.        I have gone through the revisional applications and grounds set-forth therein. I have also perused the judgment of the trial Court as well as Court of appeal below. I have gone through the testimonies of the P.Ws. and O.P.Ws to arrive at in a proper decision whether judgment of reversal is proper or not. 

33.        Considering the judgment of Court of appeal below it appears that in the Judgment the learned judge did not disagree with the opinion of the Court below regarding the facts as well as testimonies, rather rightly found as like Court below that the pre-emptor is the co-sharer by inheritance in case jote as admitted fact from the testimony of the P.W.1. which also admitted by the O.P.W No.1 Md. Shafiqul Islam in cross in the following manner:-

   R­jce­eR¡ 7/4/60 p¡­m e¡¢mn£ i¥¢j pq BlJ i¥¢j pÇf­LÑ HLV¡ J¢Rua e¡j¡ L­l ®cuz I A¢Rua e¡j¡u R¡š¡­ll 3 f¤œ Bë¥m q¡¢jc ¢p¢ŸL£, ¢Sæa Bm£ ¢p¢ŸL£, q¡¢mj ¢p¢ŸL£ Hhw j¡u¡ ¢p¢ŸL£l e¡j B­Rz  

34.        However, the learned Judge of the Court of appeal below opined that since the Ewaj deed dated 08.01.2000 was a registered deed it’s contents cannot be changed by giving oral evidence and in support of his view referred the decision of the apex Court reported in 3 BLD 1983 (AD) 105, 1983. In view of the above decision of the apex Court the Court of appeal below has reversed the judgment and order of the Court below.

35.        On perusal of the Judgment of the Court below it appears that the learned Judge of the trial Court after framing the issues decided the case according to the issues thoroughly discussing the evidences in its true perspective as given by the respective parties. The learned Assistant Judge in decreeing the suit referred the precedent of Shafi Khan Vs. Mannujan Hossain wife of A.Z.M. Delwar Hossain, Advocate and others case reported 35 DLR (AD) 225 and case of Alfazuddin Mollah and others Vs- Md. Almas Chokder and another 56 DLR (AD) 179 but the learned judge of the Court of appeal below in her judgment neither disagree with those judgments of apex Court nor discuss about the facts of the referred cases viewing that those facts are distinguishable from the present case. 

36.        Upon sifting the evidences of P.Ws. and O.P.Ws. I am of the view that the pre-emptor is admittedly the co-sharer of the case jote. The Appellate Court also found that the O.P.W No. 1 in cross admitted that in the Oshiatnama there is a name of 3 sons and 1 (one) daughter of Abdus Sattar namely Abdul Hamid Siddique, Zinnoth Ali Siddique, Halim Siddique and Miya (j¡u¡) Siddique. It is also found by the Court of appeal below that the opposite party No. 1 also admitted in the cross that the pre-emptor has 3 (three) brother and 1 (one) sister. More-so, upon a bare reading of the Oshiatnama-exhibit-2 dated 07.04.1960 it appears that Abdus Sattar had 3 sons and 1 daughter. The Court of appeal below rightly found and opined that the pre-emptor is the co-sharer of the case jote. So, both the Courts concurrently found that pre-emptor and pre-emptee No. 2 are the co-sharer by inheritance of the suit plots and Khatian.

37.        I am therefore, of the view that the judgment of Court below neither tainted by any legal infirmity and flagrant violation of law nor misread or misconstrued any materials on record for which it can be reversed.

38.        From the above discussions and opinion it is crystal clear that regarding factual aspects and material available on record the opinion and observation of the appellate Court is affirmative with the Court below.

39.        However, the appellate Court has opined that instead of proving the case to the effect that the pre-emptor is the co-sharer by inheritance, the pre-emption application cannot be allowed because deed in question dated 18.01.2000 is a deed of Ewaj therefore, against the deed of Ewaj no case of pre-emption would be maintainable.

40.        From the deposition of the O.P.W. No. 1 who is none but the son of pre-emptee opposite party No.1 deposed on behalf of pre-emptee No. 1 as attorney of his mother in the cross examination clearly admitted that 2ew fТafr HJu¡S j¤­m 116 c¡­Nl 34 na¡wn Hhw 1ew f¢afr 86, 87, 88 c¡­Nl 67 na¡wn i¨¢j ®i¡N cMm Ll­a b¡­Lz HC HJu¡S c¢mm 18/1/2000 a¡¢l­M pÇf¡ce J ®l¢S¢øÌ quz 2ew fТafr 23/5/2000 a¡¢l­M 116 c¡­Nl 34 nw i¨¢j 1ew fТaf­rl ¢eLV ¢h¢œ² L­lz e¡¢mn£ 67 na¡wn i¨¢jl j§mÉ Sh¡h c¡¢M­ml pju fСu 2,99,000/- V¡L¡ ¢Rm Hhw fТa na¡w­nl j¤mÉ 3000/- V¡L¡ ¢Rmz However, it is visible from Ewaz deed dated 18.01.2000 the exhibit –3/ “N” the price of the Ewaz land has been shown Tk. 17000/- only, but the price of deed dated 23.05.2000 between the pre-empty No.1 and 2 has been shown only Tk. 10,5000/- quantum of land is .34 decimal. The price of the above sale deed dated 23.05.2000 apparently, shows that price of the same land has been decreased then that of the earlier price of exchange, although the sale deed has been registered later. Therefore, it is my unshrinking view that the sale deed dated 23.5.2000 in the name of Most Sakina Bewa pre-emptee No. 1 executed by Md. Monsur Rahman Siddique pre-emptee No. 2 is nothing but has been created only as a instrument to return back property from earlier deed of exchange. More-so, after 04 months of Ewaz between the same party sell was completed wherein in the sale deed the price of the land has been shown only Tk. 10500/- instead of earlier price 17000/-. Thus, on the face of the record it is apparent the price has been mentioned in the sale deed not the value of the land, rather, with ill motive price has been shown which is not the actual price. Thus, it is a deed of sale without consideration which proved that earlier deed of exchange between the same parties had occurred as papers expression in the name of deed of exchange. Therefore, I am of the considered view that 1st transaction of Ewaz and thereafter within short period in the name of sale deed the property return back to the original owner of the Ewaz clearly indicative that earlier occasion was is not Ewaz but it has been shown as Ewaz which is nothing but a exceptionally misuse of the Ewaz in the name of sell. Therefore, such ill motivated and exceptional Ewaz has been created only to defeat the right of pre-emption which is interferable by the Court of law.

41.        In the facts and circumstances of the case in hand, it is obviously visible that though both deeds in question are registered but object and true nature of the deed clearly found deceptive. Therefore, this Court are of the view that registration of Ewaz does not reflect in its true perspective rather to infringe and defeat the statutory right of the pre-emptor. In above backdrops the Exhibit – 3/Ga deed of Ewaz dated 18.01.2000 does not come within the legal and lawful objective as a Ewaz deed, rather, clearly it has been created with a purpose to defeat the statutory right of the pre-emptor.

42.        In that view in a such exceptional circumstances the legal and lawful exercise of jurisdiction of a civil Court should not be restrained referring as the register documents.

43.        In view of the above discussions and findings I am further of the opinion that in the given facts, circumstances of the case the exhibit -3/Ga is not actually deed of exchange, rather, it has been created instead of sale deed to defeat the right of pre-emption of the pre-emptor.

44.        Therefore, I am of the considered view that the decision to the case of Jaynal Abedin Molla Vs. Aliar Rahman & others reported 3 BLD 1983 (AD) 105 wherein their lordships of the Appellate Division has held that: No evidence is admissible to vary the contents of the documents by any oral evidence. would not be applicable in the case in hand. Because the maxim of the decision of the Joinal Abedin Molla’s case is that oral evidence is inadmissible to vary the contents of document but in the present case not challenge the contents of the documents but nature of transaction which object was to defeat the statutory right of the co-sharer. Therefore, the co-sharer challenged the nature of the transfer in that view of the matter the facts and circumstances of the present case is hit but the proviso (1) of the section 92 of the Evidence Act, 1872. 

45.        To appreciate the legal proposition and to discuss the aforesaid avenue I feel that the provisions of section 92 of the Evidence Act, 1872 must quoted herein below for ready reference and convenience of the further discussion which runs as follows:

92. Exclusion of evidence of oral agreement- When the terms of any such contract, grant or other disposition of property, on any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:

Proviso (1)- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party.1 [want or failure] of consideration or mistake in fact or law.

Proviso (2)-The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with it terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.

Proviso (3)- The existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.

Proviso (4)- The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.

Proviso (5)- Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:

Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.

Proviso (6)- Any fact may be proved which shows in what manner the language of a document is related to existing facts.

46.        In the Case reported in 1983 BLD (AD) 105, it has been held that no evidence is admissible to vary the contents of the documents by any oral evidence. It is well settled proposition of law. However, the evidence lead by the plaintiff/pre-emptor, in fact, established that the disputed deed is not a exchange deed but a deed of sale.

47.        In other word the plaintiff /pre-emptor has not adduced any witnesses to vary, contradict or subtract from the contents of the disputed deed but adduced the evidences to show the true nature and character of the disputed deed. I am of the opinion that it would be quite noteworthy in this connection to discuss the case reported in PLD 1960 (Lahore) 231 it has been held in that case that under section 92 of the evidence act, parol evidence is not inadmissible where the proceedings are between a party and a stranger because the rule embodied in section 92 applies to the parties to an instrument and not their representative-in-interest. Further-more, in section 92 presupposes the validity of the transaction evidenced by the document. If its validity is questionable due to true nature and object therefore, is impeachable. The Court is not bound by what has been described as the paper expression of the parties. The expression of the parties in the disputed deed cannot preclude the Court from entering to discover the real nature and object of the transaction between them.

48.        It is therefore, my considered view that section 92 does not preclude a party from showing that the writing was not really the contract between the parties, but it was only a fictitious or colourable device which cloaked something else. In such situation of a particular case oral evidence is admissible to show that an agreement was only a sham or nominal transaction and was not intended to be acted upon or to show that a written agreement for the conveyance of property was only a fictitious exchange to defeat and infringe the statutory right to other.

49.        In the case reported in AIR 1936 (PC) 70 the privy Council observed section 92 only includes oral evidence to vary the terms of the written contract and has no reference to the question whether the parties had agreed to contract on the terms set forth in the document.   So, I am of the view that there is a material difference between contents of deed and an attempt to show that the terms of a contract were different from those recorded in a deed.  In other word an attempt to show that the contract as mentioned in the deed was not the real contract between the parties not inadmissible under the section 92 of the evidence Act.

50.         In AIR 1958 (SC) 448 has held that section 92 of the Evidence Act is not a bar to leading the oral evidence to prove that document in question is not a sale deed but an exchange deed. Therefore, I do not find any reason why this maxim of law will not apply to the instant case. Similarly in the case reported in 1988 BLD 33 it has been held that admission of oral evidence of the acts and conducts of the parties in determining the true nature of the transaction does not infringe provision of section 92 of the Evidence Act. It can be shown by oral evidence that though a document in particular form was executed but in fact it is different from what it appears to be.

51.        Therefore, my opinion is when a document is meant merely on an informal memorandum of transaction and not as a document embodying disposition of property, oral evidence is not excluded. In the case reported in A.I.R 1958(SC) 15,  it has been held that extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. So, I am of the view that there is no bar in the section 91 and 92 of the Evidence Act to adduce the parol evidence to show notwithstanding the recital of exchange not to its true perspective nature and object in a document.

52.        On the discussions above I find that the Judgment delivered by the learned Judge of the Court of appeal below not decided the instant appeal as per decision of 15 BLD (AD) 82 or 3 BLD (AD) 105 referred by the Advocate for the Opposite Party. Therefore, I am of the opinion that it is a good case to interfere in the Judgment and decree of the Court of appeal below.

53.        I have gone through the Judgment of the case of Jaynal Abedin Molla Vs. Aliar Rahman & others reported 3 BLD (AD) 105. I am not disagreeing with the principle enunciated by their lordships therein. However, from the facts and upon perusal of the evidences and discussions made herein above I am more inclined that the principles enunciated by their lordships to the case of Alfazuddin Mollah and others Vs- Md. Almas Chokder and another reported 56 DLR (AD) 179 would be more effectively applicable in the case in hand as referred by the learned Advocate for the petitioner which has already been cited in the Judgment of the trial Court.

54.        Thus, I find merit in the Rules.

55.        Thus, the Rules having merit, both are succeed.

56.        In the result, both the Rules are made absolute. 

57.        The Judgment and decree passed by the Court of appeal below in other Appeal No. 73 of 2011 and Miscellaneous Appeal No. 26 of 2011 are hereby set aside and those are passed by the trial Court are hereby restored and affirmed.

58.        The Office is directed to communicate the Judgment to the Court of appeal below as well as trial Court and send down the L.C. records at once. 

         Ed.