Case No: Civil Revision No. 1797 of 2013
Judge: Kashefa Hussain. J.
Court: High Court Division,
Advocate: Mr. Surojit Bhattacharjee, Mr. Probir Neogi,
Citation: 2018 (1) LNJ 51
Case Year: 2017
Appellant: Ahmed Ali
Respondent: Mariam Bibi and others
Subject: Civil Law
Delivery Date: 2018-02-15
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
Kashefa Hussain, J
. . . Petitioner
Mariam Bibi and others
. . . Opposite parties
Code of Civil Procedure (V of 1908)
Order VIII, Rules 3, 4 and 5
Denial of any fact has to be specific in accordance with Order 8, Rule 3 and Rule 5. From a plain reading of the provision there is no scope for vague or evasive denials within the ambits of Order 8 Rules 3,4 and 5 of the Code of Civil Procedure, neither in the depositions nor in any written statement, written objections whatsoever. . . .( 13)
Shahidur Rahman Molla and others Vs. Abdul Halim Molla and others, 35 DLR (1983) 79 ref.
Mr. Surojit Bhattacharjee, Advocate with
Mrs. Momtaz Begum, Advocate
. . .For the Petitioner.
Mr. Probir Neogi, Senior Advocate, with
Mrs. Anita Ghazi Rahman, Advocate with
Mr. Sumon Ali, Advocae with
Mr. Taposh Bandhu Das, Advocae
. . .For the opposite parties.
Kashefa Hussain, J: Rule was issued in the instant Civil Revision calling upon the opposite-parties No. 1-9 to show cause as to why the impugned judgment and order dated 08.04.2013 passed by the learned Joint District Judge, 2nd Court, Sunamganj in Miscellaneous Appeal No. 27 of 2001 allowing the appeal reversing the judgment and order dated 21.06.2001 passed by the Senior Assistant Judge, Chattak, Sunamganj in Miscellaneous (Pre-emption) Case No. 30 of 1986 dismissing the Miscellaneous (Pre-emption) case should not be set aside and/ or such other or further order or orders passed as to this court may seem fit and proper.
2. Facts relevant for disposal of the Rule in short is that the opposite parties as pre-emptors filed Miscellaneous Pre-emption Case No. 30 of 1986 in the court of Senior Assistant Judge, Chhatak, Sunamgonj under Section 96 of the State Acquisition and Tenancy Act, 1950(hereinafter called the SAT Act) against the present petitioner and pro-forma opposite parties herein for pre-emption of the case land.
3. The case of the pre-emptor in brief, is that the pre-emptor is a co-sharer of the case land on the basis of purchase dated 05.03.1979 from Binode Behari Dey and he is also co-sharer of the land by contiguous land owner. The case land is part and parcel of the pre-emptor’s homestead land. The pre-emptee Nos. 1 and 2 disclosed on 20.09.1986 in the locality that they have purchased the case land from the pre-emptee No. 3 and thereafter the pre-emptee took certified copy of the kabala on 31.08.1986 and confirmed that the pre-emptee opposite party No. 3 sold the case land to the pre-emptee opposite party Nos. 1 and 2 by a registered kabala dated 24.09.1984 at a consideration of Taka 15,000/- (Taka fifteen thousand) only. Thereafter, the pre-emptor filed the case given that no notice under Section 89 of the State Acquisition and Tenancy Act were duly served upon the co-sharer. The pre-emptee opposite parties No. 1 and 2 are not co-sharers of the case land and they are strangers to the case land therefore the pre-emptor is entitled to get pre-emption of the case land.
4. The pre-emptee opposite party No. 1 (predecessor of the petitioners herein) contested the case by filing a written objection denying the material allegations made in the pre-emption application contending inter alia that there is no cause of action for filing the case. They alleged that the case is barred by defect of parties since the co-sharer of the holding have not been made parties and the case is also barred by limitation and that the case is also barred by estoppel, waiver and acquiescence. The case land belonged to pre-emptee No. 2, pre-emptee No. 2 is the full brother of pre-emptee No. 1, and Pre-emptee No. 3 decided to transfer the case land due to urgent need of money. The pre-emptee No. 3 proposed to the petitioner and his brother to purchase the land and they agreed to the proposal and which are within the full knowledge of the pre-emptor and some local people. Subsequently opposite party No. 3 executed a Kabala dated 24.09.1984 in favour of the pre-emptee Nos. 1 and 2 at a consideration of Taka 18,000/- (Taka eighteen thousand) only and delivered possession of the same on the every date of execution and the petitioner has been possessing the case land within the full knowledge of the pre-emptor and other co-sharers and local people. The petitioner has also been growing crops in the suit land and that the pre-emptors have no right, title and interest in the case land and he is not a co-sharer. The pre-emptor is a stranger and as such he is not entitled to get pre-emption to the case land, and that they are not entitled to get pre-emption of the case land.
5. Both parties made deposition and adduced evidence. For points of determination the trial court framed 7 issues. All the other issues except issue No. 5 was decided in favour of the pre-emptor plaintiff.
6. After hearing both sides the trial court dismissed the suit on the ground of issue No. 5 only by judgment and order dated 21.06.2001 passed by the learned Senior Assistant Judge, Chattak, Sunamganj.
7. Being aggrieved by the judgment and order dated 21.06.2001 passed by the learned Senior Assistant Judge, Chattak, Sunamganj, the plaintiff pre-emptor as appellant filed Miscellaneous Appeal No. 27 of 2001 in the court of learned District Judge, Sunamganj which upon transfer was heard by the learned Joint District Judge, 2nd Court, Sunamganj and who by his judgment and order dated 08.04.2013 allowed the appeal thereby reversing the judgment and order dated 21.06.2001 passed by the learned Senior Assistant Judge, Chattak, Sunamganj and consequently allowed the pre-emption.
8. Learned Advocate Mr. Surojit Bhattacharjee, Advocate with Mrs. Momtaz Begum, Advocate appeared on behalf of the petitioner while learned Advocate Mr. Probir Neogi, Senior Advocate with Mr. Md. Sumon Ali, Advocate and Mr. Taposh Bandhu Das, Advocate and Mrs. Anita Ghazi Rahman, Advocate represented the opposite party.
9. Learned Advocate Mr. Surojit Bhattacharjee appearing for the petitioner opens his submission upon assertion that the trial court correctly dismissed the suit relying upon his finding on issue No. 5 pertaining to the prescribed limit of holding land prescribed under Section 96 of the S.A.T Act, 1950. He argues that the petitioner already owns land in his name the quantity of which his beyond the prescribed ceiling limit under the provision of Section 90 of the S.A.T Act. He also assails that Section 90 of the S.A.T Act requires that holding shall not be transferred to any other person except to a bonafide cultivator and further assails that the pre-emptor opposite parties could not prove that he is a bonafide cultivator and therefore are not entitled to pre-empt the suit land. He further draws my attention to issue No. 6 whereby he points out that both the courts made an error in law in arriving at an erroneous finding to the effect that development work was not done or under taken by the pre-emptee petitioner. He asserts that although the witness from the pre-emptee’s side being the O.P.Ws deposed that development work has been done but yet both the courts below arrived at a wrong finding that development work was not at all under taken by the pre-emptee petitioner. He thrusts his main contention on reliance upon the issue No.5 revolving around the argument relating to the finding of the Appellate Court regarding to the question of the quantity of land that the petitioner actually holds. Against this finding of the Appellate Court, he argues that the trial court had arrived at a correct finding regarding issue No. 5 but yet the appellate court upon error of law, misreading of evidence unlawfully reversed the findings of the trial court. He elaborates his points upon persuasion that no evidence was adduced by the pre-emptor that the amount of land owned by him that which he seeks to pre-empt will not exceed the prescribed limit of land which can be owned and /or held by any one person under the S.A.T Act. In support of his submission he relies upon a decision of our Apex Court in the case of Md. M. Rahman Vs. Imam Ali reported in 1BCR (1981) AD and assails that in that decision our Apex Court upheld the principle that the quantity of land sought to be pre-empted shall not exceed the statutory ceiling prescribed under Section 90 of the S.A.T Act and persuades that the pre-emptor in that case loses his right to pre-emption. He further asserts that in the instant case also the pre-emptor did not adduce any evidence that the quantity of land, he seeks to pre-empt would not exceed the statutory ceiling prescribed under Section 90 of the Act. In the light of his submissions he therefore concludes that the Rule bears merit and ought to be made absolute for ends of justice.
10. On the other hand learned Advocate Mr. Sumon Ali appearing for the opposite party opens his submissions upon assertion that the appellate court correctly reversed the finding of the trial court on issue No. 5. He controverts the submission of the learned Advocate for the petitioner that no evidence was adduced regarding the issue of the prescribed ceiling limit under Section 90 of the Act pertaining to the total quantity of land that may be held by any one person under the provisions of law. In support of his claim he takes me to the deposition of P.W-1 wherefrom he draws my attention to the depositions where he shows that P.W-1 specifically deposes that the pre-emptor Gabor Ali owns 1 ½ Hal (which is 5.40 acres of land approximately). He asserts that under the provision of law the deposition of the P.W-1 specifying the quantity of land owned by the pre-emptor is adequate evidence that the pre-emptor opposite party while pre-empting the land is not in any way trying to pre-empt land the quantity of which if pre-emption is allowed may lead to exceed the prescribed statutory ceiling. He next submits that nowhere in the deposition of the D-Ws are there any allusions or reference to the effect that the pre-emptor in attempting to pre-empt the land would in any manner exceed the statutory ceiling under the law. In support of his averments he relied upon the case of Shahidur Rahman Molla and Others Vs. Abdul Halim Molla and others reported in 35 DLR (1983) page 79. He takes me to paragraph No. 8 of the decision, wherefrom he tries to persuade that the court held that the pre-emptee in their written objection did not make any specific denial or set up any plea that if the pre-emption application is allowed the added land would exceed the permissible limit prescribed under the law. He further persuaded that in the 35 DLR decision referred to this division held the principle that the denial of the pre-emptor being vague and evasive, according to the provisions of Order 8 Rule 3 and 5 in absence of specific denial the pre-emptor is a competent person to be entitled pre-empt under Section 90 of the S.A.T Act. He further asserts that in the 35 DLR case this division also held the principle that in absence of specific denial by the pre-emptee opposite party in violation of the provision of order 8 Rule 3 and 5, in that case the pre-emptor need not adduce any evidence in support of the averments that they are competent person to get pre-emption under Section 90 of the Act. He also submits that the learned Court below arrived upon concurrent findings of facts on all issues except issue No. 5 and concludes his submission upon assertion that the issue No. 5 was incorrectly arrived upon by the trial court but which the appellate court by reversing its finding of issue No. 5 correctly and lawfully allowed the appeal and thereby correctly allowed the pre-emption to the case land and the order of the Appellate court is correctly given and the Rule bears no merit and ought to be discharged for ends of justice.
11. I have heard the learned Advocate from both sides, perused the application and materials on records including both the judgments and orders of the courts below. Upon perusal of the judgment and order court below it is quite evident that out of the 7 issues framed in the case both courts arrived upon concurrent findings of fact on all other issues except on issue No.5 which involved the issue pertaining to the statutory ceiling of holding land by any person prescribed under Section 90 of the S.A.T Act. I have perused the finding of the trial court on issue No. 5 and also the finding of the appellate court regarding the same issue. From the judgment of the trial court it appears that the trial court on the issue of the statement of the P.W-1 arrived upon the finding that “no evidence” was adduced except a statement of the P.W-1. The finding arrived at by the Trial Court is reproduced below:
“This statement is not enough to believe that the petitioner has land below than the ceiling. The burden of proof completely lies upon the petitioner because this is a requirement of law for getting a pre-emption.”
Upon perusal of this finding of the trial court and upon my examination into the materials on record I regrettably hold that this finding of the trial court is not correct.
12. I have gone through the deposition of the P.W-1 and it appears that the P.W-1 upon oral evidence specifically deposes “N¡hl Bm£ a¡q¡l ®cs q¡m S¢j BR jjÑ Bj¡L S¡e¡Cu¡Rz” and finally I have gone through the deposition of the 3 D.Ws. Upon examination it is revealed that none of the O.P.Ws make any deposition to the effect that the pre-emptor by pre-empting the land was attempting to exceed the prescribed quantity of land than any one person can hold under the law. However I have gone through the written objection filed by the pre-emptee petitioner as opposite party in the miscellaneous case. Upon perusal I find that para 13 of the written objection states as hereunder: ‘It is also not a fact that the petitioner holds land much below the ceiling limit and if pre-emption of the case land is allowed holding the land of the petitioner will remain much below the ceiling limit.’ From a plain reading of the para it is quite clear that there is no specific denial that the pre-emptors opposite parites by pre-empting will exceed the statutory prescribed limit. There is no specification as to the quantity of land that the pre-emptor holds neither is there any specification or identification as to where the land is situated.
13. I have examined the provisions of order 8 Rule 3 and 5 and also Rule 4 of Order 8 of Code of Civil Procedure where both the provisions being Rule 3 and Rule 5 express that denial of any fact has to be specific in accordance with order 8 Rule 3 and Rule 5. From a plain reading of the provision there is no scope for vague or evasive denials within the ambits of Order 8 Rules 3, 4 and 5 of the Code of Civil Procedure, neither in the depositions nor in any written statement, written objections whatsoever. As I mentioned elsewhere in this judgment the P.W-1 specified the quantity of land held by the pre-emptor. On the contrary none of the O.P.Ws in their depositions came up with any specific denial that the deposition of the P.W-1 that the pre-emptor owns 1 ½ Hal (®cs q¡m) of land is untrue. Nor did the O.P.Ws in their depositions could anywhere specify any amount of land which they claim might exceed the statutory limit under Section 90 of the S.A.T Act in the event of pre-emption by the pre-emptor. I have also perused the judgment of our Apex Court which was reported in 1 BCR which was relied upon by the petitioner. Upon perusal thereof it is revealed that the particular case cited by the learned Advocate is distinguishable from the case before me. In that decision of our Apex Court, no evidence at all was given by the oral documents or the witnesses, but in the case before me the P.W-1 made specific deposition to the quantity of land owned by the pre-emptor and wherefrom it is evident that the pre-emptor if allowed to pre-emption the total amount of land shall not exceed the prescribed limit under Section 90 of the S.A.T Act.
14. Furthermore as to the issue of burden of proof Section 103 of the Evidence Act, 1872 provides : “The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
15. Upon a plain reading of Section 103 of the Evidence Act it is clear that in this case the pre-emptee while relying on his claim that the pre-emptor opposite party by pre-empting the suit land would exceed the prescribed limit under the law, the burden of proof obviously lies upon the pre-emptee as prescribed under Section 103 of the Evidence Act. Since the pre-emptee’s claim is based upon reliance on a particular issue, the burden of proof lies on him and which in my considered opinion the pre-emptee has failed to prove.
The learned Advocate for the petitioner during his submissions also raised a point that the issue No. 6 regarding the “development work” under taken by the pre-emptee after purchasing the land was not correctly decided upon by either of the courts below. Against this submission my considered opinion is that the courts below arrived at this finding upon a proper appraisal of the records, depositions etc. and gave concurrent findings. In absence of misreading of any evidence or violation of provision of any law, I do not find any reason to interfere with the concurrent findings of the courts below on issue No. 6. From the deposition of the P.Ws it divulges that all the P.Ws denied that there has been any development work while on the other hand the O.P.w-2 deposes that he is not even aware as to who cut the land or what amount of land was ever cut. The O.P.W deposes as: “L j¡¢V L¡V¡Cu¡R Hhw LaV¤L¥ j¡¢V L¡V¡Cu¡R h¢ma f¡¢lh e¡z”
16. But notwithstanding, there is no gainsaying that the most relevant issue before me for disposal is Issue No. 5, given that on all other issues the Courts below arrived upon concurrent finding of facts. From a scrutiny of inter alia the records, I find no misreading of evidences, nor do I find any misinterpretation of any law, and in keeping with the settled principles of our Apex Court including this Court, I am not in a position to interfere with concurrent finding of facts.
17. Be that as it may, taking the facts take into consideration and for the reasonings and findings arrived at elsewhere in this Judgment , I am of the view that the Appellate Court correctly reversed the incorrect finding of the Trial Court on the Issue No.5 .
18. Therefore, under the facts and circumstances and taking all materials on records and judgment of the courts below into consideration and after perusal of those placed before me, I am of the view that the appellate court correctly passed the order allowing the pre-emption and I find no reason to interfere with the order of the Appellate Court and therefore I find no merit in this Rule.
19. In the result, the Rule is discharged without any order as to costs.
20. The order of stay granted earlier by this court is hereby vacated.
21. Communicate this judgment and order at once.
Civil Revision No. 1797 of 2013